Although not an employment case, this is one of the first court decisions dealing with transgender issues since the Supreme Court’s ruling in For Women Scotland v Scottish Ministers (FWS) in which the Supreme Court confirmed that words such as ‘sex’, ‘woman’, ‘male’, and ‘female’ in the Equality Act 2010 (EqA) referred exclusively to biological women, men and sex, and do not apply to transgender individuals. Accordingly, a transgender woman, who is a biological man, is not a woman under the EqA.
In this county court case, the claimant was a professional English eight-ball pool player and transwoman who possessed a Gender Recognition Certificate.
In August 2023, the English Blackball Pool Federation (EBPF) changed its rules, so that only people who were biologically female would be permitted to play in its female teams and competitions. Prior to this, the claimant played for the EBPF’s Kent women’s team. The rule change meant they could no longer play for the women’s team, although they could play in the men’s or open category.
The claimant brought proceedings asserting that this exclusion was direct discrimination on grounds of gender reassignment, in breach of the EqA.
The claim was dismissed. The court held that the effect of the FWS decision is that the claimant’s exclusion was a matter of sex discrimination, not gender reassignment discrimination. The claim failed because there was no gender reassignment discrimination. The court noted that the correct comparator for the claimant was someone of the same sex without the protected characteristic of gender reassignment. That would have been a biological man who would also have been excluded from the female category for pool teams and competitions. Therefore, the claimant was unable to show less favourable treatment.
The court went on to consider the sports exception under s.195 EqA and the single sex services exception under paragraph 28 of Schedule 3 to the EqA. The sports exception states that less favourable treatment based on gender assignment by service providers is permitted in ‘gender-affected activity’ if it is ‘necessary to do so to secure… (a) fair competition or (b) the safety of competitors’. The court concluded that pool is a ‘gender-affected activity’ and that excluding biological males from the female category is necessary to secure fair competition as the average male has sex-related advantages in the sport over the average female. . In respect of the single sex services exception, the court also concluded that excluding biological males from the female category was a proportionate means of achieving a legitimate aim. Fairness of competition is undoubtedly a legitimate aim, and if (as the court accepted) exclusion is necessary to achieve fairness then it must be a proportionate means of doing so.
The court rejected arguments based on the Human Rights Act/European Convention on Human Rights, and stated that any future application for permission to appeal would most likely be refused, as there was no real prospect of success.
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