Judgment follows Supreme Court decision on the meaning of sex under the Equality Act 2010.
A recent County Court case has followed the Supreme Court's ruling on the meaning of sex in the Equality Act 2010. This case provides a useful example of how courts and tribunals are likely to approach claims brought by trans people where they have been subjected to detriment because of their biological sex (or sex registered at birth) or because of gender reassignment, for example in the case of exclusion from single sex facilities or services.
This case concerned a trans woman who played English eight-ball pool at county level and was excluded from entering a women-only pool competition.
The trial took place just a few days before the Supreme Court gave its judgment in the case of For Women Scotland v The Scottish Ministers. For more details on this case, please see our previous article: Supreme Court clarifies 'sex' definition in Equality Act 2010.
What is "gender-affected activity" under the EA 2010?
It is unlawful under the Equality Act 2010 (EA 2010) to discriminate against someone on the basis of a protected characteristic. However, there are a number of exceptions to this rule. These include arrangements for separate sex events for competitive sport where the sport involves a "gender-affected activity".
A gender-affected activity is one 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" when engaging in competitive events. It is lawful to exclude someone from a competition involving a gender-affected activity because they are of the opposite sex. Additionally, a trans person can be excluded from taking part in a gender-affected activity if this is necessary to secure fair competition or the safety of competitors.
Case details: Haynes v The English Blackball Pool Federation
The trans woman claimant (who has a Gender Recognition Certificate) alleged that she had been excluded from a women's pool competition unlawfully because of the protected characteristic of gender reassignment.
In reaching its judgment, the court followed the Supreme Court's ruling, determining that the claimant's sex was male for the purposes of the Equality Act 2010. This meant that the correct comparator for her gender reassignment claim was a biological man who was not trans. In this case, the comparator would also have been excluded from the women's competition on the basis of his sex.
The court found that the reason for the exclusion was the sex of the claimant rather than gender reassignment. As the claimant had not brought a sex discrimination claim, there was no need for the court to determine whether pool is a "gender-affected activity". However, for completeness, it did go on to make clear that it would have found pool to be such an activity. It reached the conclusion that lesser strength and reach put the average woman at a disadvantage when competing against the average man at English eight-ball pool. If the claimant had brought a sex discrimination claim, the defendant would therefore have successfully defended it on the basis of this exception.
The court commented that, if it had found the treatment to be less favourable treatment because of gender reassignment, it would have found this to be justified on the basis that exclusion was the only way to ensure the competition was fair.
Interestingly, the court also considered whether it would have been justifiable to exclude trans women from the competition on the basis of the aim of encouraging the participation of women in the sport. The court commented that, although this is a legitimate aim, it would not have found excluding trans women from women's competitions to be a proportionate means of achieving the aim. It stated: "The Defendants' evidence was that the only complaints they received other than those about fair competition were objections to sharing toilets, and that is an issue which could arise whenever trans women are present, whether or not they are competing in the same event."
Key points for employers
While this case was not an employment claim, it does highlight the impact of the For Women Scotland decision on potential claims brought by trans employees.
In particular, trans employees with or without a GRC will be taken by courts and tribunals as being the sex they were registered with at birth when it comes to the meaning of sex in the Equality Act 2010. This means that employees may seek to bring both sex discrimination and gender reassignment discrimination claims where they consider they have been subject to less favourable or unfavourable treatment because of their trans identity. Trans claimants may face considerable difficulty in circumstances where the decision is because of their birth sex and an Equality Act exception allows them to be less favourably treated on that basis.
It is important to note that there are only very limited exceptions which allow employers to treat employees less favourably because of sex or gender reassignment. These include roles where there is a genuine occupational requirement to be of one sex or not to be a trans person. Before the judgment in For Women Scotland, EHRC guidance was clear that an employee with a GRC should be treated in line with their certificated sex when it came to an occupational requirement to be of one sex. It is likely that future EHRC employer guidance will reverse this position by stating that employees with a GRC should be treated in line with their sex registered at birth for this purpose.
Employers should seek specialist legal advice at an early stage when considering taking detrimental action against an employee because they do not meet the Equality Act definition of a man or woman. Employers should note in particular that taking action which results in the dismissal of an existing employee for this reason could be unlawful.
Updated EHRC guidance for service providers and associations is expected by the end of August. There is currently no timeline for consulting on and updating the EHRC Employment Code.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
