UK Athletics (UKA) has issued a statement asking the government to change the law relating to transgender athletes. It’s asking to exclude any competitors who were not registered female at birth from women’s competitions at the level of government policy. This goes beyond its current purview.
By contrast, World Athletics has proposed to continue to allow transgender women to compete in the female category at international events. World Athletics’ preferred option is to tighten the sport’s eligibility rules, but still use testosterone limits as the key determining factor. A consultation process is under way with member federations, with a vote taking place in March.
UK Athletics rejects testosterone suppression as a marker for transgender women’s participation. Instead, it seeks to reserve the female category exclusively for cis women. Further than this, it has argued that the ‘sporting exemption’ introduced in the Equalities Act of 2010 doesn’t fully allow the lawful exclusion of trans women.
UKA chairman Ian Beattie said:
It’s specifically the Gender Recognition Act 2004 which states that people with gender recognition certificates have to be treated as female for all purposes. And there’s not an exemption for that for sporting purposes.
It’s fair to say that if we didn’t get a legal change, it would be very difficult for us to go ahead with this policy.
He went on to say that:
Ultimately, we’re very keen we all recognise what we’ve got responsibility for – and the government are the only ones who can change legislation.
That’s where we would look for that focus to be set. Certainly I think they’re sympathetic to the approach that we want to take. That has been the feedback that we’ve had.
The ‘sporting exemption’ in the Equality Act (EA) specifically:
makes it lawful to restrict participation of transsexual people in such competitions if this is necessary to uphold fair or safe competition, but not otherwise.
On top of this, the Gender Recognition Act (GRA) also affirms that:
A body responsible for regulating the participation of persons as competitors in an event or events involving a gender-affected sport may, if subsection (2) [fair competition and safety] is satisfied, prohibit or restrict the participation as competitors in the event or events of persons whose gender has become the acquired gender under this Act.
Essentially, both the EA and GRA specifically state that it is lawful to exclude trans women, and this is the decision of the governing bodies of the sports. As such, it seems difficult to pinpoint what exactly Beattie is talking about. Indeed, the Equality and Human Rights Commission (EHRC) was swift to intervene, stating:
We reached out to UK Athletics and offered to discuss the legal advice underpinning their statement. We are disappointed that they have chosen to publicise their inaccurate advice and we would urge all organisations to consult our website which explains equality law and how it relates to these issues.
It is down to the individual sporting bodies to regulate whether trans women’s participation in their given sports is deemed safe and fair. This is already well within their power. Instead, UKA wants to reach beyond its current rights to govern its own events and change UK policy wholesale.
Where are the elite trans athletes?
There is no denying that transgender participation in sport is in the public eye right now. Swimming and rugby governing bodies have recently introduced their own de-facto bans on trans participation. Notably, this comes against a backdrop of a transphobic backlash in wider politics and society.
We might ask whether UKA is acting proportionally in its efforts to change UK law. We can also consider the authenticity of the broader vitriol against transgender athletes as a whole. It seems suspicious, at the least, that these questions come alongside rapidly increasing hatred toward to trans community in general.
There is a simple problem we might consider. The Olympic Games is a good example, as it is the world’s foremost sporting competition. Trans people were first permitted to compete in the Olympics in 2004, provided they’d undergone gender-confirming surgeries. This was later recognised as discriminatory, as it essentially required sterilisation in order to compete. The guidelines were changed in 2015 to instead require testosterone suppression in trans women. This is the same test that UKA argues is unfit for purpose.
At the Tokyo 2020 Games, 11,656 athletes competed. According to the UK government’s most recent survey, around 0.5% of the UK population is transgender. Assuming, for the moment, that the same is roughly true for the rest of the world, we have a glaring issue. Over 50 – that is, 0.5% of 11,656 – elite transgender athletes are missing. Instead, three trans athletes competed, and just one medalled.
UKA clearly believes the threat of trans women’s participation is so great that it requires the government to change the law to prevent it. However, when we look closer, the opposite is true. Trans people are already under-represented in elite sport, and UKA’s proposed ban can only exacerbate the situation.
Featured image via William Warby/Wikimedia Commons, resized to 770*403