Published: 03 Feb 2023
We are concerned that UK Athletics’ interpretation of the ‘sporting exemption’, set out in section 195 of the Equality Act 2010, is inaccurate. We have particular concerns about the interpretation of how that provision interacts with the Gender Recognition Act 2004. Their interpretation is at odds with our position that Gender Recognition Certificate (GRC) holders can be lawfully excluded under the ‘sporting exemption’ in the Equality Act for reasons of fair and safe competition. We do not believe the For Women Scotland judgment altered this position.
Section 195 (1) creates a general exemption to enable sporting organisations to discriminate on grounds of sex in relation to sporting activity and provides that sports can be lawfully segregated where an activity is ‘affected by gender’. Gender affected activity is defined as follows:
‘A gender-affected activity is a sport, game or other activity of a competitive nature in circumstances in which the physical strength, stamina or physique of average persons of one sex would put them at a disadvantage compared to average persons of the other sex as competitors in events involving the activity.’
Section 195 (2) then additionally permits organisations to discriminate on grounds of gender reassignment where this is necessary to secure:
- Fair competition, or
- The safety of competitors
It is therefore likely to be lawful for a sporting body or organisation to adopt a trans-exclusive policy in relation to gender-based sporting competition where they can evidence that it is necessary to do so to secure fair competition or the safety of competitors. This understanding of the law has not altered following the Court of Session's decision in relation to For Women Scotland, and other sporting bodies agree with this interpretation.
We reached out to UK Athletics and offered to discuss the legal advice underpinning their statement. We are disappointed that they have chosen to publicise their inaccurate advice. We would urge all organisations to consult our website, which explains equality law and how it relates to these issues.