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.