Change 2.1 New content on gender recognition certificates (GRC)

Given that the SC Ruling clarified that the terms “man” and “woman” relate to biological sex, these terms should also be plainly used in any guidance. Using the term woman in reference to a man (or vice versa) is confusing at best and an ideological bias at worst.

The current EHRC Guidance refers to terms that do not appear in the EA 2010, such as “birth sex,” “acquired gender,” a “trans man” and a “trans woman.” Members of the public do not know if a “trans woman” refers to a biological woman or a biological man. It would be clearer if the guidance only uses the word woman when referring to a woman. Thus, when referring to a biological woman who identifies as trans, it should refer to a woman with the protected characteristic of gender reassignment or a trans-identifying woman. A biological man who identifies as trans should be called a man with the protected characteristic of gender reassignment or a trans-identifying man.

Change 2.2 New content on asking about sex at birth

The phrase “sex at birth” is unnecessary, since humans cannot change sex. The SC Ruling acknowledged that “the individual’s biological sex may continue to be readily perceivable.” The EHRC Guidance should reassure service providers that correctly perceiving someone’s sex is not a breach of privacy.

A duty bearer or service provider may see a man who is attempting to access a female single-sex service, and the EHRC should reassure service providers that normal safeguarding concerns are appropriate. For example, any man attempting to enter a female changing room should be challenged as his sex is not female. A male with the protected characteristic of gender reassignment is not entitled to use a service for the opposite sex.

There is no need to deploy any particular sensitivity when asking about sex unless there is some reason why the service provider believes that a particular man has the protected characteristic of gender reassignment. It is entirely appropriate for an organiser of a sports event to ask for proof of sex when someone wishes to enter a single-sex category, in the same way that one could be asked for proof of age to enter a children’s or veterans' category. An example could be given to clarify that it is lawful for a policy for a sport or recreational event to state that, in order to compete in a sex category, proof of eligibility is required.

Change 2.3 New content on defining sex at birth

2.3.3. The guidance should clarify that neither the protected characteristic of gender reassignment nor the possession of a GRC changes a person’s sex.

Change 12.1 New example on women-only associations

The EHRC guidance should give the example that a women-only association could include a recreational activity that is a non-competitive sport. For example, a recreational women-only cycling group can lawfully exclude all males, including trans-identifying males. It is lawful to have a women-only yoga club or hiking club.

Change 13.1 Updated section on competitive sport

The guidance should state that in a gender affected activity, it is lawful to organise single-sex or separate-sex events. In addition, when a tournament is single-sex or separate sex, the term ‘sex’ (and not ‘gender’) should be used.

Section 195(2) of the EA 2010 makes clear that for reasons of fair competition or safety, all males (including males with the protected characteristic of gender reassignment, whether or not they have a GRC) can be lawfully excluded from a female sports category or event. It is NOT unlawful discrimination based on gender reassignment. This is lawful discrimination based on sex.

Categorisation by sex is lawful due to the average advantage between the sexes, not in relation to the individual advantage of a particular male. The logistical requirements of a case-by-case assessment are impractical and unworkable. The admission of one person of the opposite sex means it is no longer possible to rely on the single-sex exemption of Section 195(2). Either it is single-sex, or it is mixed- sex and should be labelled accordingly. If not, an organisation is exposed to risk of discrimination.

The guidance should be clear and advise an organiser to consider how to encourage any trans competitors to compete within their correct sex category or to consider creating an Open event in addition to a Female category.

Some mixed-sex sports, such as mixed-doubles in tennis, are lawful provided that the policy is clear on the number and role of each sex within a team. The EHRC should be clear that mixed-sex teams should not be permitted to play in single-sex events.

13.1.14 This is muddled and should be removed. The EHRC Guidance states “In some circumstances, limiting, modifying or excluding the participation of trans people for the reasons of fair competition or safety may be necessary to avoid discrimination against other competitors.”

First, this does not differentiate the sex of the trans people – it may be necessary to exclude trans-identifying males from the female category while including trans-identifying females.

Second, this suggests that it could happen on a case-by-case basis, whereas once an activity has been deemed sex affected and there is a fairness and safety issue, then it is lawful for the single-sex category to exist and therefore all opposite-sex people are lawfully excluded. Sex is the issue, not whether or not someone has the protected characteristic of gender reassignment.

13.1.18 This has misleading and erroneous points.

The only relevant factor when deciding if it is lawful to have single-sex or separate-sex events is whether it is a sex affected “sport, game or activity of a competitive nature”. This involves recognising competitive advantage from sex-based differences in strength, stamina or physique as well as safety risk factors.

The extent of the competitive advantage for males does not matter for an activity to be regarded as sex affected. The EHRC guidance should make it clear that sports with very small competitive advantages for males can still lawfully categorise by sex.

The level of competition (elite or grassroots) does not matter for an activity to be regarded as sex affected. The EHRC Guidance should make clear that two-tier policies which protect the elite level but open up the grassroots level to discrimination claims should be avoided.

The extent to which an event has a significant social or recreational purpose does not matter for an activity to be regarded as sex affected. The EA 2010 specifies that it can be a “game or other activity of a competitive nature.” The Guidance should make it clear that even a fun run, which has a male and a female category, with runners timed and ranked, still constitutes a sex affected activity of a competitive nature.

Moreover, Schedule 3, paras 26-28 of the EA 2010 permit a service provider to discriminate on the basis of sex to provide separate or single-sex services of a non-competitive nature. A club could organise female-only, recreational sessions, to encourage more females to participate in a new activity.

The numbers of competitors in an event are irrelevant. The EHRC guidance should make it clear that the female category should still be single-sex whether it is a village fun run or a mass participation event.

There is no known medical intervention, including testosterone suppression, that eliminates male advantage or changes sex. This is irrelevant. Reducing the sporting ability in an individual male by reducing his testosterone does not create a right to enter a female category. The EHRC should not be encouraging sports bodies to create a “handicap” policy to permit some males to compete in the women’s category. Allowing any males into a Female category on a case-by-case basis creates potential sex discrimination.