Transcription

• Speaker #0

  Today in the Lefebvre HR and Employment Law podcast, we're discussing the judgment in the case of Haynes and the English Blackball Pool Federation, in which the county court was asked to weigh in on the legality of a transgender woman being excluded from competing in women's competitions by the English Blackball Pool Federation. Transgender individuals are protected from gender reassignment discrimination under the Equality Act. In addition, the Gender Recognition Act allows them to obtain legal recognition of their acquired gender in the form of a gender recognition certificate. However, the Equality Act does provide a legal framework for providers of single-sex services to take account of the biological sex of their service users. In recent years, there has been much debate as to whether a person's sex becomes that of their acquired gender for all purposes, and in 2023 The Inner House of the Court of Session concluded that a person's sex was not limited to biological or birth sex. However, in its highly publicised decision earlier this year in For Women's Scotland Limited and the Scottish Ministers, the Supreme Court ruled that, for Equality Act purposes, sex, along with the terms woman and man, refers exclusively to a person's biological or birth sex. A recent case in the County Court, although not employment related, is one of the first cases to deal with transgender and single-sex issues since the Supreme Court's decision. This case involves H, an expert player of English 8 ball pool and a transgender woman with a gender recognition certificate. The English Blackball Pool Federation is an unincorporated association run by volunteers which organises pool competitions in England, including a competition for women's teams. In 2023, the Federation announced a change in its rules, so that only people who were born female would be permitted to play in its women's competitions and teams. Due to the rule change, H was prevented from continuing to play for the English Blackball Pool Federation Kent Women's County team. H brought a claim against the Federation in the county court, alleging her exclusion amounted to direct discrimination on the grounds of gender reassignment. The Federation, which was deemed a service provider within the definition of the Equality Act, raised three lines of defence. Principally, it denied that the rule change discriminated against H on the grounds of gender reassignment. It asserted that the rules excluded her because she was born male. If she had been a transgender person who was born female, she would not have been excluded. The exclusion was therefore discrimination on grounds of sex, not gender reassignment. And since her claim did not allege sex discrimination, it should be dismissed. Secondly, the Federation argued that there was no unlawful discrimination because the sport of pool is a gender-affected activity and the revised rules were necessary to secure fair competition and finally it asserted that the rule change was justified as a proportionate means of achieving the legitimate aims of the promotion of the integrity of the game through fairness of competition and diversity through inclusion of females who were underrepresented in the game of pool. The court dismissed the claim. In the light of For Women Scotland Limited and the Scottish Ministers, the definition of sex in the Equality Act must refer to biological sex. Consequently, for these purposes, H was considered to be biologically male, despite holding a gender recognition certificate. This meant that the exclusion of H from the women's pool teams under the rule change was a matter of sex discrimination and not one of gender reassignment discrimination. The court considered but rejected H's submission that the correct comparator would be a biological female who is in the same or similar situation to H because she is living her life as a woman. Since H was considered to be male for the purposes of the Equality Act, the correct comparator would need to be someone of the same biological sex without the protected characteristic of gender reassignment. In this situation, a biological male who was not transgender would also have been excluded from playing in the women's category by the Federation and therefore H could not demonstrate less favourable treatment. Although it was not necessary, the court went on to consider whether the Federation's alternative defences were made out. Having conducted a thorough assessment with detailed expert evidence, the court determined that pool could be considered a gender-affected activity and that so long as an advantage conferred by an average difference in physical strength, stamina or physique was more than minimal, it did not matter how great that advantage was. Consequently, measures to secure fair competition between trans and biological women were necessary. The court considered whether other measures short of exclusion, such as testosterone-level testing or handicap systems, were viable, but found that there was no other reasonable alternative. such that if this were a case of gender reassignment discrimination, the court would have said that the exclusion of a trans woman from the women's pool team was justified under the gender-affected activity provision. Again, although not determinative to the case, the court also considered that the exclusion of trans women from women's competitions amounted to a proportionate means of achieving the legitimate aim of promoting fairness of competition. With regard to the aim of encouraging greater female participation in the sport, although the court accepted that women had been underrepresented in the sport and this was a legitimate aim, it did not accept that the exclusion of trans women from women's competitions would be justified were it not for the need to achieve fair competition. This case affirms that the approach to be taken by the courts in interpreting the provisions of the Equality Act in respect of sex will be determined by reference to a person's biological or birth sex. It also provides an interesting exploration of what may amount to a gender-affected activity and a consideration of when measures, such as excluding trans women from a women's team, may arguably be justified as a proportionate means of achieving the legitimate aim of fairness of competition. Look out for further episodes in this series to stay up to date on all things HR and employment law related.