Seven things to say to your MP to fight changes to The Equality Act.

Please act. Encourage your MP to voice their opposition to potentially devastating legislative changes to The Equality Act that would destroy trans people's lives. Ask them to speak against this proposals in the Parliamentary debate on June 12th.

The government is shaping up to change The Equality Act 2010, in a move that - if they go through with it - will effectively remove trans people from UK society. Its logic is that of US 'Bathroom Bills' and the very worst hard-right US States like Florida (run by extremist Republican and Trump rival Ron DeSantis (someone much admired by Women and Equalities Minister Kemi Badenoch, who, according to recent reports is keen to import DeSantis' entire 'anti-woke' programme into the UK). The UK government has been encouraged to make these changes by the Equalities and Human Rights Commission - a body that is supposed to 'advise' the government on equality law, but which since 2019 has had its leadership stuffed with figures dedicated to removing trans rights by the government. Possible changes, focusing on changing the definition of 'sex' in the act to 'biological sex', are being massaged as "clarifications" in the law (to a law that doesn't need clarifying and has worked fine for 12 years). Political bigotry has, of course, a long and putrid legacy of being concealed in the sneering language of 'administration' and bureaucracy so those affected can be called "hysterical", as the trans community is being. But trans people in the UK know what's coming down the line here, having lived with years of frenzied media hatred which is growing week by week (Click this link https://tinyurl.com/EHRCCalltoact to learn more about that EHRC advice, and what its implications are). We need you to act, please.

Especially if you are not trans.

Especially if you are a woman.

Your voice counts for more than ours now. Please reach out to your MP (their details can be found at www.theyworkforyou.com) by email. Please then make an appointment to see them to express your horror at these potential changes. Ask them to speak up for trans people in the debate on this in Parliament on June 12th. Below are seven arguments you can make. You may want to use some, or all, depending on who your MP is and their political stance. Keep in mind that whilst some of these arguments might resonate with you, and others not, it's the motivations and values of your MP that matter most here. Whilst the 'biggest' arguments here revolve around the unwarranted destruction of trans people's lives and the removal of rights that have been in place for decades, others might also speak to your MP's political priorities. Our impression is that whilst some MPs are well known 'gender critics' who have aligned with the most prejudiced and hostile of views, and some are, thankfully, committed allies, the majority of MPs remain relatively uninformed on the real issues at stake here. More and more they may be feeling that they need to become properly acquainted with this so-called 'debate'. This is a chance to help them understand the reality (we know also that groups which wish the trans community harm are energetically working to influence MP opinion on this, right now, including offering pro-forma letters to send. They will also be meeting MPs to lobby them).

ARGUMENT #1

THIS CHANGE WOULD BE DEEPLY UNFAIR AND COMPLETELY UNNECESSARY.

There is no 'trans crime wave' taking place. Trans women have been using women's single sex spaces and trans men using men’s, for decades – since long before the EA2010. These rights have been acknowledged in law since the 1990s and part of public policy for many years even before that. MPs should be suspicious of calls for 'clarity' now, when nothing has changed, when trans people have been given no new rights for over a decade and when the system (which already contains legal safeguards) is not broken - despite the hysterical sloganeering of the British press. ARGUMENT #2

IT WOULD DRIVE TRANS PEOPLE OUT OF BRITISH SOCIETY.

If the definition of sex was changed to ‘biological’ in the EA, trans people would effectively be removed from public society by not being able to use facilities like toilets that they’ve used without incident for years. Banned from the women’s toilet, trans women would not use the men’s because they would be humiliated and attacked there. Trans men would not use the women’s toilet and women wouldn’t want them there anyway. Where would they go? The disabled toilet? There aren’t enough of those for disabled people….and being trans isn’t a disability. In addition, not being able to use the right toilet at work would mean that they would also be driven out of the workplace and onto benefits – something no political party wants. Other outcomes would include forcing them to self-deport if they have the means, to find work in another country and to pay their taxes there. Many are starting to consider it already.

ARGUMENT #3

IT CONFLICTS WITH A BASIC LEGAL PRINCIPLE.

It conflicts with the basic legal principle of non-retrogression, under which rights (including human rights) should not be removed once granted. History does not look kindly on governments that have done this in the past. ARGUMENT #4 IT’S A TOTAL WASTE OF PARLIAMENTARY TIME.

It is a waste of Parliamentary time, even if the government attempts to use a more 'rapid' procedure like a Statutory Instrument (which would immediately be subject to Judicial Review proceedings). If Primary legislation is attempted it is extremely likely that this would become bogged down in Parliament, not least in the House of Lords.

There are so many other initiatives that the government needs to be taking right now to heal our broken society, including those that genuinely protect women and as called for by the many trans-inclusive feminist organisations.

ARGUMENT #5 IT WOULD ALIGN THE UK WITH THE MOST BIGOTED US STATE GOVERNMENTS.

There is a torrent of anti-LGBTQ+ legislation passing through US state legislatures at the moment - initiatives like changing the definition of sex to 'biological' (so-called 'bathroom bills') amongst them. https://www.aclu.org/legislative-attacks-on-lgbtq-rights MPs must understand that many of those who support changes to EA in the UK support many or all of these US initiatives too. Changes in the EA are absolutely not the end point for such people. As the conversation becomes even more extreme in the UK, many advocates of changes to the EA see this moment as a step towards the even deeper vilification, even elimination, of trans people here.

ARGUMENT #6

IT WOULD BE ANOTHER SIGNAL TO INTERNATIONAL BUSINESS TO STAY AWAY FROM BRITAIN.

In an era in which the UK is desperate for foreign investment, such a move would signal to large international companies with diverse workforces that the UK is not a welcoming society. This happened in the US. When North Carolina attempted to introduce a 'bathroom bill' it led to a large and vocal exodus of major employers. The economic damage was so bad that the legislation was repealed a year later. The same now seems to be happening in Florida, Missouri and Texas.

ARGUMENT #7 CISGENDER WOMEN* WOULD FACE ABUSE AND HARASSMENT

*Cisgender or ‘cis’ simply means ‘not trans’

If you are a cisgender woman and you don’t conform to standard, patriarchal definitions of femininity, in how you look or how you dress, you could expect to be challenged, abused or harassed in a women’s toilet or changing room. You may be asked to

‘prove’ your assigned birth sex or your ‘biology’.

It’s already happening in the US and it has happened here. Thank you for supporting us. If you'd like to let us know what response you receive from your MP, please do get in touch. The TLP Team

The Observer opinion piece by Sonia Sodha, April 9th 2023

On Sunday, April 9th 2023, Sonia Sodha wrote an opinion piece in The Observer newspaper in which she welcomed the recent provision of advice by the UK’s Equality and Human Rights Commission to the Minister for Women and Equalities, which advocates that the definition of ‘sex’ in The Equality Act be changed to ‘biological sex’. A text version of the article is below, and with it some observations by TLP on how this journalist (whose anti-trans perspective is well-known and long-standing) has in the view of TLP utterly distorted the situation. It includes both commentary on her explanation of the law and the framing and structuring of her piece which tries to lead the reader to a conclusion deeply hostile to the rights of trans people in the UK and entirely counter to what the trans community seeks. In our view, if implemented, the EHRC’s recommendations would drive trans people out of British society. Our comments, based on a graphic we produced earlier today, are inter-leaved with text as it appeared online. Most replicate the graphic, but we have added some additional material in places. We'd also point out that at no point in the article does Sodha refer to trans women as women (or trans women), nor trans men as men (or trans men). Whilst purporting to cast herself as a voice of 'reason', this unwillingness to grant trans people the basic courtesy of referring to them as they would wish, or to reflect how they live their lives, is we believe another powerful indicator of her true position.

Text Headline:

At last, a consensus is emerging on protecting women-only spaces

TLP: A consensus amongst whom? No LGBT+ organisation in the country supports this. The trans community is unalterably opposed. There is widespread fear. A consensus amongst a few trans-hostile cisgender people, she means. ‘Women-only spaces’ means cisgender women-only spaces, which need “protecting” from trans women. Text Standfirst:

Compassion and common sense are prevailing in a sensitive conflict over rights

TLP: The framing device. Speaks to the Guardian/Observer reader’s self-image. Everything that comes next, it says, is in support of how you are a good person.

Text begins: Unclear law is bad law. Ambiguously drafted statutes result in judges scrabbling to interpret what exactly legislation means when disputes hit the courts and organisations that don’t know what their legal obligations are because even lawyers don’t agree.

TLP: This aims to recruit the reader. Opens with a section with which it’s impossible to disagree. ‘We are the same’ says the author to the reader.

Text continues: The Equality Act is an important piece of legislation passed by Labour in 2010 that enshrines protections against discrimination for many groups. But there’s an ambiguity at its heart: when it refers to “sex” in relation to single-sex spaces, services and sports, does it mean biological sex or legal sex?

TLP: ‘Biological’ sex is impossible to define medically and accurately. The definition in Corbett v. Corbett [1971] P. 83, [1970] 2 All E.R. 33 is not exhaustive. Further, the Equality Act (EA) has been working fine in this regard for 13 years without problems.

Text continues: What might seem an obscure technicality is in reality an important distinction. A separate law passed in 2004 allows someone with a medical diagnosis of gender dysphoria to be granted a gender recognition certificate (GRC) that confers the right to be treated as though they were of the opposite sex for many legal purposes. Because the Equality Act doesn’t define “sex”, it’s unclear whether anyone male who has a GRC must be treated as though they were female in equality law and vice versa. TLP: The bigotry is now underway. The term “as though” is used. The GRA 2004 S9, para 1: ‘Where a full gender recognition certificate is issued to a person, the person’s gender becomes for all purposes the acquired gender (so that, if the acquired gender is the male gender, the person’s sex becomes that of a man and, if it is the female gender, the person’s sex becomes that of a woman).’ There is no lack of clarity about whether a person with a Gender Recognition Certificate (GRC) must be treated in their ‘acquired’ gender under equality law. See Baroness Hale’s speech in A. v. The Chief Constable of West Yorkshire Police [2004] UKHL 21 which discusses the forthcoming Gender Recognition Bill prior to it being enacted. Protection for trans people also goes beyond those with a GRC.

Text continues: This would have unintended consequences. Someone female with a GRC who gets pregnant would not be covered by Equality Act protections against pregnancy and maternity discrimination, for example. TLP: No. The effects of a Gender Recognition Certificate on parenthood are excluded by S.12 of the GRA. Further clarity could be provided by nothing more than a one-line amendment to this specific part of the Equality Act, to ensure that trans men are protected in this situation.

Text continues: It would make it much riskier legally for a service provider to exclude someone male with a GRC from female-only services, such as prisons, rape-crisis centres and changing rooms. It could make it impossible for a care agency to honour a disabled woman’s request for female-only intimate care and for a woman in prison to refuse a strip-search from anyone male. TLP: Sodha here refers to trans women as men as if this were accepted social and legal practice, the bigotry presented as settled reality. The examples she gives are inaccurate – in each situation, a case-by-case assessment, followed by a decision to exclude is 100% legal under the EA. What the EA does not allow is blanket exclusion without cause.

Text continues: It would mean a lesbian support group could not lawfully exclude a male with a GRC who identifies as a lesbian.

This legal ambiguity makes it extremely difficult for small charities and volunteer-run groups to know when it is lawful to offer a female-only service, not least because whether or not someone has a GRC is private information. TLP: It can be asked for in some circumstances

Text continues: But people have so far muddled through in a context where the numbers of GRCs issued are small.

What has moved a clarification from desirable to critical, however, is Scottish legislation that would radically change the basis on which someone can get a GRC. If the Scottish government wins its ongoing legal wrangle with Westminster over its reforms, anyone male – including men who commit voyeurism and exposure, and other abusive predators – could acquire the right to be treated as female on the basis of self-declaration. TLP: Self-ID, a technical simplification of the process of declaring your gender, is now the law in various forms in 20 countries, including Ireland. There have been no problems. It is supported by The Council of Europe, Amnesty International and Liberty. The conflation of trans women with predatory men and sex criminals is a standard trope of this kind of writing, wrapped in a casing of ‘reasonableness’

Text continues: This is the context in which Kemi Badenoch asked the Equalities and Human Rights Commission (EHRC) if the government should clarify the law to make clear sex means biological sex in the Equality Act. TLP: Equally useful context might also include that Badenoch has been recorded referring to trans women as “men”, (“You now want to have men using women’s bathrooms”), abstained on a vote to extend same-sex marriage to Northern Ireland, is opposed to the extension of a conversion therapy ban for trans people and has made false claims about the Editor of Pink News. Her attitude to trans people is well known. The Government Equalities Office, over which Badenoch resides, now routinely drops reference to the ‘T’ when discuss LGBT rights, mentioning only lesbian, gay and bisexual people.

Text continues: In a welcome intervention, the commission last week wrote to the equalities minister to say there is indeed a case for doing so.

TLP: ‘Welcome’ to the writer. It has created panic in the UK trans community to whom it could not be more unwelcome (Though we should point out that this EHRC advice has at this point no legal force)

Text continues: This wouldn’t affect the Equality Act’s critical protections against unlawful discrimination for trans people on grounds of gender reassignment. TLP: This is completely untrue Text continues: But it would improve the legal framework in the interests of balancing everyone’s needs, by clarifying the sex-based protections that allow for female-only services for legitimate purposes – such as protecting the privacy, dignity and safety of women who want to access female-only hospital wards or intimate care or who do not want to be imprisoned with or strip searched by anyone male. TLP: Further use of the term ‘male’ despite legal clarity already and irrespective of any trans woman’s personal, legal, biological, endocrinological, hormonal status etc.

Text continues: The law still rightly requires there to be services that meet the needs of trans people and organisations could of course opt to provide some services on the basis of the gender in which people identify, but not at the expense of single-sex provision for women who need it. TLP: Echoes of the ‘separate but equal’ language of apartheid here?

Text continues: This has not stopped some LGBT charities reacting with shamefully irresponsible levels of hyperbole. Mermaids has accused the EHRC of “seeking to strip trans people’s rights”; the chief executive of Stonewall has said it constitutes “a sustained assault on the human rights of trans people”. TLP: The language. ‘Shaming’ of LGBT+ organisations for fighting for the rights of trans people. Heard that before? No LGBT+ organisations support this move. None were consulted. If enacted, trans women would be legally forced to use male toilets, and changing rooms, trans men would be forced into women’s toilets and changing rooms. Some sort of policing of so-called ‘biological’ sex would need to be introduced at entry points. Cis women who ‘look trans’ would be challenged. Reports exist of them being abused/attacked in the US.

Text continues: I suspect the real beef is the failure of the government and the EHRC to align with their controversial worldview that being a woman is purely a matter of self-identification, rendering biological sex irrelevant. TLP: No organisation in the UK has claimed it is “irrelevant”. It has been pointed out that it is immensely complex.

Text continues: Stonewall has openly campaigned for the Equality Act’s protections for single-sex services to be scrapped and organisations it has advised on equalities law have been found to have wrongly understood and applied the law “as Stonewall would prefer it to be”. Its boss has offensively compared the “gender critical” belief that sex and gender identity are distinct concepts to antisemitism.

TLP: Untrue. Stonewall campaigned that trans women not be excluded from single-sex spaces at all, because they are women. The Parliamentary Women & Equalities Committee agreed. This quote is from a GC barrister’s opinion, not a court, later demolished by Trans Legal Project. Stonewall does not give legal advice.

Text continues: It has ludicrously tried and failed to get the UN to downgrade its rating of the EHRC as a national equalities regulator for daring to consider the needs of women who believe sex remains relevant. TLP: It along with a number of trans rights group sought to have the EHRC downgraded by the UN’s Accreditation body, GANHRI. GANHRI reaccredited the EHRC and the attempt was unsuccessful. However, the EHRC was censured with 7 (equal most with El Salvador) recommendations which needed attention. Most other reaccredited countries received at most 2 recommendations. These include specific instructions to ensure that groups representing LGBT+ people were better served. It also asked them to make their appointment process more transparent. The EHRC has, as far as we know, not implemented any of GANHRI’s recommendations

Text continues: Stonewall has had an impressively firm grip on how public sector organisations view the law through membership schemes and diversity rankings, which the information commissioner has said gives it “a significant degree of influence” over workplace policies. Even the EHRC, the independent arbiter of how equalities law is applied by public bodies, used to be a member of Stonewall’s scheme, implying there was once a degree of regulatory capture of a body supposed to balance protections for all groups. TLP: EHRC, the “independent arbiter”: 1. Commissioners are appointed by the government. Well-known anti-trans figures amongst them, some have represented anti-trans groups in court.

2. Condemned by previous Chairman of Commissioners for political bias

3. Riven with resignations over this issue, mostly from legal experts working for them.

4. In a recent meeting with trans rights activists to try and explain this ‘advice’, the staff, including Marcial Boo, the CEO and Melanie Field, were completely unable to justify it.

5. Censured by the UN’s Human Rights accreditation body in 2022

See also: https://www.vice.com/en/article/bvnymd/ehrc-staff-quitting-transphobia

https://www.vice.com/en/article/wxdzwn/ehrc-trans-rights-leaked-emails

Text continues: But there is a new political consensus emerging that to clarify the Equality Act’s sex-based protections would be a good thing. Labour shadow ministers such as Shabana Mahmood have welcomed the EHRC’s recommendation for a review.

Women have been vilified for the moderate opinion shared by many that sex remains relevant in law and society.

That consensus – encompassing the Conservative government, the opposition and a regulator that has newly rediscovered its independence – is also reflective of public attitudes: research suggests that many people rightly take a “live and let live” approach to how people identify, but believe sex remains relevant in areas such as sport and single-sex spaces. TLP: A ‘consensus’ that does not involve any LGBT+ rights groups nor any of those whom it will profoundly affect? A surprising use of the term. The EHRC’s “newly rediscovered…independence”? See above.

Text continues: It remains extraordinary that in a context where campaigners have tried to intimidate people into adopting their worldview on pain of being tarred a bigot, women have been vilified for the moderate opinion shared by many that sex remains relevant in law and society. People have endured bullying and harassment, unlawful workplace discrimination, violent protest and illicit police action. There are important takeaways from this sorry saga: the moral cowardice of leaders in big institutions who allowed this to happen; the insight that frightening people into taking up your cause is no substitute for winning hearts and minds. TLP: Given that there is no problem to fix here, this is world class DARVO

Text continues: But my overwhelming feeling at this advent of compassionate common sense is a massive sense of relief. Relief that we may be approaching a time where we can all acknowledge a disabled woman’s right to turn down intimate care from anyone male alongside the need of a trans survivor of domestic abuse to access appropriate services, and agree both are things a humane society must accommodate.

TLP: Repetition that trans women are male. Language is carefully framed to give the impression that the ‘debate’ is now over. Having abused trans people and supporters in the previous paragraph, the aim is to wrong foot opponents into seeming unreasonable (again). Faux compassion here is suggesting that separate but equal facilities can be set up for excluded trans people. ************

We believe that the RFU's decision to discriminate against trans rugby players is unlawful.

Anyone affected by the RFU's decision may wish to consider their legal options.

By Dr. Sophie Hyland PGDL (Lincoln's Inn)

Introduction

On Friday 29th July, the English Rugby Football Union (“RFU”) announced a long-expected update to its gender participation policy, according to which transgender women will no longer be able to participate in female categories in the contact form of rugby union. Trans men wishing to compete in male categories can still do so, subject to a written application and the performance of a risk assessment.

It is our view that the updated gender policy does not accord with UK equality legislation, namely the Equality Act 2010. The blanket prohibition on transgender women, and the administrative barrier placed upon transgender men, both constitute direct discrimination under the 2010 Act and are unlikely to satisfy the requirements of the sporting exceptions set out in s.195 of the Act. We set out our analysis below.

The applicable law

Per the 2010 Act, there are two species of discrimination which are generally unlawful: direct and indirect. For the purposes of our analysis, it suffices to focus on direct discrimination, as set out by s.13(1):

A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.

The relevant protected characteristics, that is the personal qualities on the basis of which it is generally unlawful to discriminate against an individual or individuals, are given by section 4 of the Act. Gender reassignment is one such personal quality. Section 7(1) provides further guidance on this point:

S.7(1): A person has the protected characteristic of gender reassignment if the person is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person’s sex by changing physiological or other attributes of sex.

The rugby union players affected by the RFU’s new prohibition will all, therefore, share this protected characteristic by reason of having transitioned, or being in the process of transitioning, to their identified gender. To refuse transgender women permission to play rugby union is to treat them less favourably than cisgender women on the basis of the protected characteristic of gender reassignment. Equally, to refuse transgender men permission to play rugby union barring a written application and a risk assessment is to treat them less favourably than cisgender men.

In most industries, this would suffice for the discrimination to be unlawful. A restaurant refusing to serve a transgender customer on the basis of their transgender identity would do so unlawfully under these provisions. However, in this context, the RFU will place reliance on the sporting exception outlined by ss.195(1) and 195(2) EA 2010:

1. A person does not contravene this Act, so far as relating to sex, only by doing anything in relation to the participation of another as a competitor in a gender-affected activity.

2. A person does not contravene sections 29, 33, 34 or 35, so far as relating to gender reassignment, only by doing anything in relation to the participation of a transsexual person as a competitor in a gender-affected activity if it is necessary to do so to secure in relation to the activity – 1. fair competition, or 2. the safety of competitors.

In other words, a body governing a national sport may discriminate against transgender athletes such as to prevent them from participating provided that it is necessary to protect the fairness of the competition or the safety of the other competitors. Ultimately it does not suffice that a prohibition may make an objectively positive contribution to competitive fairness or player safety. The Act provides a defence only insofar as the governing body had no option but to implement the ban in the pursuit of one or both of those aims.

Necessity

In our view, it is difficult to see how the test of necessity is met. Moreover, should any transgender rugby player bring a claim of discrimination against the RFU, the burden will be on the RFU to show that the ban was necessary. This follows from the Explanatory Notes to the Equality Act at paragraph 443:

in any claim where a person alleges discrimination [...] under the Act, the burden of proving his or her case starts with the claimant. Once the claimant has established sufficient facts, which in the absence of any other explanation point to a breach having occurred, the burden shifts to the respondent to show that he or she did not breach the provisions of the Act.

It is the claimant’s job to demonstrate that being prevented from playing rugby union on the grounds of their gender reassignment constituted direct discrimination. Once this is done, it becomes the job of the RFU to demonstrate that the discrimination was necessary to pursue one of the statutory aims in s.195(2) EA 2010.

This position was confirmed by the UK Supreme Court in the recent case of Royal Mail Group Ltd v Efobi [2021] UKSC 33, at paragraph 15, which held that once a prima facie case of discrimination under EA 2010 is made out by the claimant, the burden shifts to the defendant to persuade the court that any of the statutory exceptions apply. The court’s reasoning was that: ‘A claimant can seek to draw inferences from outward conduct but cannot give any direct evidence about the employer’s subjective motivation.’ In other words, the claimant must show that they have been treated worse than a comparator on the basis of one of the characteristics listed in s.4 EA 2010. Once the claimant has done so, the burden falls on the defendant to justify the necessity of the policy, as it is the party most equipped to present positive evidence on its reasons for considering it to be necessary.

The gender participation policy as applied to trans women

Per the RFU’s announcement, the very premise of the blanket ban on trans women’s participation in rugby is the ‘physical differences between those people whose sex originally recorded as male and those at female at birth, and advantages in strength, stamina and physique brought about by testosterone and male puberty [...] retained even after testosterone suppression.’ So, to successfully defend against a discrimination claim by a transgender woman affected by the recent prohibition, the RFU would be required to demonstrate that the physical differences cited were such that there was no alternative but to prevent trans women from playing rugby altogether.

The RFU’s burden will be made all the heavier by relatively recent case law from the Court of Arbitration for Sport (CAS), particularly its decision in Dutee Chand v Athletics Federation of India (CAS 2014/A/3759). In that case, the CAS held that the IAAF could not demonstrate that a policy of prohibiting cisgender females with hyperandrogenism (an anomalously high concentration of testosterone in the bloodstream) from competing in international athletics events was proportionate to the aim of ensuring fairness in women’s competitions. The question as to whether a measure is a proportionate means of achieving a legitimate aim is a somewhat lower bar than whether it is necessary to achieve that aim. A blanket ban on athletes from competing in women’s categories on the grounds of elevated testosterone was not held to be proportionate in the Dutee Chand case. Should a domestic court be persuaded by the reasoning in that case, it would be difficult to persuade it that a blanket ban on rugby players from competing in women’s categories on the grounds of physical difference and elevated testosterone was necessary.

The RFU may point to differences between rugby union and IAAF events, namely the fact that rugby union is a contact sport, and that allowing transgender women to engage in contact sport with cisgender women is a direct threat to safety and fairness. While this difference is relevant, it does not offer strong support for the necessity of the updated policy. The argument would rest on an overly simplistic, untenable distinction between bodies considered to be male and female respectively. It is not a matter of course that a body which has undergone androgenic puberty will be more physically capable than a body which has not; the range of human physiology cannot be straightforwardly taxonomised in this way. Per paragraph 353 of the CAS judgment in Dutee Chand, other differences offer competitive advantages which cannot be straightforwardly sorted into gendered categories. These include height, vision, aerobic capacity, access to facilities and coaching, access to sports science services and access to nutrition. The point that transgender women must be prohibited from competing in women’s rugby rests on the fallacy that transgender women will always be more physically powerful than cisgender female competitors and colleagues, and that where this is the case, it is straightforwardly a consequence of male physiology.

Moreover, it is clear that elevated testosterone is a phenomenon observed in those assigned both male and female at birth. It is recognised that the condition of hyperandrogenism provides an athletic advantage to cisgender female athletes. Yet the updated gender policy makes no mention of cisgender females with that condition. Should the policy be subject to a legal challenge under the Equality Act, the RFU would have to justify why the interests of safety and fairness required that transgender females be prohibited from competing in women’s rugby on the grounds of elevated testosterone, while cisgender females with the same competitive advantage would be exempt from that same prohibition.

It should also be noted that not all those whose sex is recorded as male at birth undergo male puberty, and therefore acquire the competitive advantage on which the RFU’s updated policy relies. This is particularly so thanks to the availability of GnRH analogues - colloquially referred to as ‘puberty blockers’ - which prevent the onset of unwanted natal puberty in transgender patients. There is therefore a class of transgender women who have never experienced the increased testosterone levels which are associated with a competitive advantage over most cisgender women. Yet this class of players is still very much caught by the blanket ban on the participation of transgender women in sport. Therefore, despite RFU President Jeff Blacket’s statement that the decision ‘has been based on all the scientific evidence available,’ it is difficult to envisage what scientific evidence could satisfy a court that it was necessary to prevent such a transgender woman from playing women’s rugby on the grounds of testosterone-related physical advantages which she never in fact gained.

The existence of this class of potential competitors would also lead to a particularly bizarre situation. A transgender female who never underwent male puberty, and whose testosterone had never exceeded the normal range for cisgender females, would be prohibited from competing in women’s rugby, whereas a cisgender female with hyperandrogenism would not be so prevented, despite manifestly enjoying exactly the competitive advantage with which the RFU seeks to justify the ban. That some cisgender female players would enjoy the benefits of elevated testosterone while some transgender female players would not, fundamentally undermines the necessity of banning the latter group on a blanket basis.

In its announcement, the RFU further claims that it did consider the merits of a ‘case-by-case assessment process’. It states that various considerations precluded this, including uncited ‘research findings’ and the ostensible ‘difficulties in identifying a credible test to assess physiological variables.’ One would expect the RFU to justify its new policy as necessary on the basis that a more pragmatic approach might be impractical. However, this justification is self-defeating. It is contradictory to argue at once that the current state of scientific knowledge requires a prohibition on transgender females from participating in rugby union, yet is not sufficiently advanced to be able to assess the necessity of banning individual transgender females. Put another way, the RFU relies on the notion both that the science points to some quantifiable metric that requires the exclusion of trans women from women’s rugby union, and that the science is incapable of identifying that quantifiable metric in an individual trans woman. The reason that it is difficult to identify a credible test to ‘assess physiological variables’ in individuals is presumably that any competitive advantage conferred upon, or any increased risk to teammates posed by, transgender women cannot straightforwardly, measurably be attributed to natal male physiology.

The RFU’s point that a case-by-case assessment would be unworkable in the light of the difficulties of reducing the issue to a single test is a tacit admission that the necessity of the ban is not supported by evidence. In fact, in terming this a ‘precautionary approach’ adopted until further peer-reviewed science becomes available, the RFU seeks to perform a sleight of hand, reversing the burden of proof onto those who believe that the ban is not necessary in the interests of safety and fairness. Yet the burden remains on the RFU to prove the necessity of excluding trans players from women’s rugby. By terming this approach ‘precautionary’, it admits that the ban is a response to a theoretical risk which has yet to be scientifically identified. It will be for the RFU to prove that an unidentified, unsubstantiated risk to safety and fairness requires that all transgender female players be excluded from the sport. There will be no burden on any claimant to prove that no such risk exists.

The gender participation policy as applied to trans men

It should be noted that the updated gender participation policy also applies to transgender males. Trans men would also suffer direct discrimination by comparison to cis men, by suffering an administrative barrier to participation not faced by cis counterparts, and by facing a risk assessment which could cause them to be excluded on the basis of their characteristic of gender reassignment. In such a case it is also difficult to imagine how this policy could be justified as necessary in the interests of safety and fair competition. This is particularly so given that transgender males seek to compete in the male category, and will usually receive exogenous testosterone which is the basis of the impugned competitive advantage conferred upon transgender females.

It therefore cannot be the case that a written request and a risk assessment are necessary to ensure fairness to other competitors. Nor would the presence of a transgender man sensibly present a significant safety risk to cisgender competitors. Perhaps the RFU would justify its policy by reference to the fairness to and safety of the individual transgender male. Yet this is unlikely to be persuasive. Ensuring fair competition for the trans male cannot be achieved by preventing him from competing at all. Nor does it follow that a trans man would inevitably be at a greater safety risk as compared to other competitors such that he would be required to pass a risk assessment to be entitled to compete. For it is entirely plausible that a trans male player may be more physically capable than a given cis male opponent who would not be required to pass a risk assessment in order to play. In such a circumstance it is practically impossible to justify subjecting the former to an additional administrative barrier as compared to the latter.

Conclusion

The Equality Act 2010 would provide a formidable cause of action against the RFU’s updated policy on grounds of direct discrimination. The sporting exception set out in s.195(2) EA 2010 will only avail the RFU where it can prove to the civil standard that the interests of fairness and safety absolutely require trans women to be excluded from women’s rugby union and that trans men’s inclusion be subject to a risk assessment. It will have to justify this policy despite its own admission that the differences between male and female physiology are too scientifically complex to be reduced to a straightforward test, and despite the policy not extending to cisgender people enjoying similar physical advantages. The policy will particularly struggle to justify itself in the light of the fact that not all transgender women went through male puberty, and in fact that not all those who did will inevitably enjoy a significant physiological advantage over cisgender counterparts.

It will also be particularly difficult to defend the policy of requiring trans men to undergo a risk assessment in order to participate in a category in which endogenous testosterone levels have never provided the basis for excluding an athlete. A transgender male selected to compete on a men’s team on the basis of his athletic ability, but whose entitlement to do so was subject to an additional administrative burden, would have a strong claim under EA 2010 to challenge the validity of the policy in and of itself. It is therefore our view that the RFU’s policy will struggle to withstand a legal claim under the Equality Act 2010.