Anyone affected by the RFU's decision may wish to consider their legal options.
By Dr. Sophie Hyland PGDL (Lincoln's Inn)
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:
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.
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.
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  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.
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.