In April 2025, the UK Supreme Court handed down its highly anticipated judgment in For Women Scotland v Scottish Ministers [2025] UKSC 16 (“For Women Scotland”).
The Supreme Court answered a narrow question of statutory interpretation. Namely, whether the Equality Act 2010 (“EA 2010”) treats a transgender woman with a Gender Recognition Certificate (“GRC”) pursuant to the Gender Recognition Act 2004 (“GRA 2004”) as a woman for all purposes within the provisions of the EA 2010, or when it speaks of a “woman” and “sex” it is instead referring to a “biological woman” and “biological sex”.[1]
This article will consider the Supreme Court’s decision in the context of transgender athletes’ participation in sports. Considerations related to athletes who are intersex, have Differences in Sex Development, or are non-binary are beyond the scope of this article. This article will, after a short commentary on terminology, examine the following questions:
I. TERMINOLOGY
Terminology is a sensitive subject. As acknowledged by the Supreme Court, “taxonomy itself can generate controversy”.[2] This article uses the following key concepts and terminology:
| Sex | Biological and physiological characteristics a person is born with. |
| Gender | Characteristics which are socially constructed. |
| Gender identity | A person’s innate sense of their own gender which may not correspond to the sex registered at birth. |
| Cisgender | When someone’s gender identity is the same as their sex as registered at birth. |
| Transgender | When someone’s gender identity is different to the sex as registered at birth. |
As to the terminology used in the EA 2010 it is worth noting that this legislation is 15 years old, and some of its provisions are built on much older foundations. Since then, our social understanding of and the dialogue around sex and gender-related issues has moved on significantly. The following points are worthy of particular note:
II. THE EA 2010 PROTECTIONS FOR TRANSGENDER ATHLETES
The EA 2010 is a statutory Act consolidating previous anti-discrimination legislation. It protects people (falling within the scope of the Act) against discrimination. In advancing equal treatment, it seeks to “strike a balance between the rights of one group and another, rights that can conflict with or contradict one another in some circumstances.”[3]
The material provisions for the purposes of this article are as follows:
| Section 4 | Sets out the protected characteristics, including “sex” and “gender
reassignment”. |
| Section 7 | Defines when a person has the protected characteristic of “gender reassignment”: “if the person is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassignment
the person’s sex by changing physiological or other attributes of sex”. |
| Section 11 | Defines the protected characteristic of “sex” as “a reference to a man or to a woman”. |
| Section 29 | Prohibits a service provider from discriminating against a person requiring the service. |
| Section 195 | Contains an exception in relation to sports. |
| Section 212 | Contains general interpretation provisions, including that “man” means a “male of any age” and “woman” means “a female of any age”. |
(a) Prima facie protection from discrimination
Under the EA 2010, a transgender athlete would prima facie have protection from the following treatment in respect of the provision of services:
However, in the sporting context, the above protections are, crucially, subject to s.195 EA 2010. Further, the exception in Paragraph 28 of Schedule 3 EA 2010 may apply. Both are considered below.
(b) The application of the s.195 EA 2010 exceptions
ss.195(1)-(2) EA 2010 provide that:
“(1) A person does not contravene this Act, so far as relating to sex, only by doing anything in relation to the participation of another as a competitor in a gender-affected activity.
(2) A person does not contravene section 29, 33, 34 or 35, so far as relating to gender reassignment, only by doing anything in relation to the participation of a transsexual person as a competitor in a gender-affected activity if it is necessary to do so to secure in relation to the activity—
(a) fair competition, or
(b) the safety of competitors.”
These provisions create two legal exemptions which apply to sport:
ss.195(1) and (2): is the activity a “gender-affected activity”?
Both s.195(1) EA 2010 and s.195(2) EA 2010 require there to be a “gender-affected activity”: it is a “gateway condition”.[9]
s.195(3) EA 2010 defines a gender-affected activity as “a sport, game or other activity of a competitive nature in circumstances 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 as competitors in events involving the activity.” This can be broken down into the following questions:
s.195(2) only: is it necessary to do the act (in relation to the participation of a transsexual person as a competitor) to secure, in relation to the activity, (1) fair competition or (2) the safety of the competitors?
s.195(2) EA 2010 has an additional hurdle to s.195(1) EA 2010: even if a sport is deemed to be “gender-affected”, for the defence to be successfully relied on, the action taken would need to either be necessary to secure fair competition or the safety of the competitors.
“Safety” is a relatively high threshold and will be determined against the nature of the specific sport being considered. For example, the arguable necessity of excluding a transgender woman from a contact sport such as rugby, were she of considerably greater physique than cisgender women playing, may be greater than a lower-contact sport such as football or a non-contact sport such as individual athletics.[10]
“Fair competition” invites more complex consideration. For example, in some cases, a transgender woman may benefit from advantages of the male physique. She may have spent a considerable period with suppressed or eliminated testosterone levels and elevated female hormone levels, affecting muscle mass and fat distribution, but not bone structure. There may also be differences between those who have transitioned from male to female at puberty, and those who transitioned post-male puberty.[11] These factors will differ from person to person. There is no one-size-fits-all approach.
(c) The application of Schedule 3, Paragraph 28 EA 2010 exception
Schedule 3 EA 2010 is headed “Services and public functions: exceptions”. Under Paragraph 28, and for the purposes of s.29 EA 2010, it is not unlawful gender reassignment discrimination if:
1. the conduct relates to: (a) the provision of separate services for persons of each sex; (b) the provision of separate services differently for persons of each sex; (c) the provision of a service only to persons of one sex (per Schedule 3, Paragraph 28(2)); and
2. the conduct is a proportionate means of achieving a legitimate aim.
The success of this defence will be specific to the legitimate aim relied on. However, in practice, it is likely to overlap with the questions the court has to consider under s.195(2) EA 2010. Fairness of competition/safety of competitors are undoubtedly legitimate aims, and so if the conduct of the governing body is deemed necessary to secure fair competition or the safety of competitors, that action is likely to be deemed a proportionate means of achieving a legitimate aim (see Haynes below, in which Paragraph 28 of Schedule 3 was argued as a defence).
III. KEY TAKEAWAYS FROM FOR WOMEN SCOTLAND
(a) “Sex” in the EA 2010 refers to biological sex, irrespective of a GRC
In For Women Scotland, the Supreme Court held that, in light of the context and purpose of the statute, the definitions of “sex”, “woman”, “female”, “man” and “male” in the EA 2010 are defined by biology. It held that “sex” means “biological sex”, “woman” means “biological woman”, and “man” means “biological man”.
In the Supreme Court’s judgment, if a transgender person has a GRC, this does not alter their biological sex for the purposes of the EA 2010. That is the case, even though s.9(1) GRA 2004 stipulates that: “Where a full gender recognition certificate is issued to a person, the person’s gender becomes for all purposes the acquired gender (so that, if the acquired gender is the male gender, the person’s sex becomes that of a man and, if it is the female gender, the person’s sex becomes that of a woman).”
The position is now that a transgender man with a GRC is still to be treated as a “woman”, and a transgender woman with a GRC is still to be treated as a “man”, for the purpose of s.11 EA 2010. The EA 2010 effectively makes provision to disapply s.9(1) GRA (within the meaning of s.9(3) GRA 2004).[12]
(b) The consequences in a sporting context
Sport is addressed specifically at [232]-[236] of the judgment.
The Supreme Court determined that “sex” in s.195(1) EA 2010 means “biological sex”[13]. It went on to state as follows (emphasis added):
A small but important point is the use of the word “could” in the first line of the above paragraph. The court did not say that the women’s boxing competition it uses as an example must exclude transgender women, just that it can lawfully do so by relying on s.195(1) EA 2010.
Lord Sumption affirmed this interpretation in an interview on Radio 4’s PM Programme (18 April 2025). In his view, sporting competitions can limit participation to cisgender athletes. However, they are not legally obliged to do so. Their discretion remains intact. He commented that: “Sporting bodies could decide to allow trans women to compete on the same basis as biological women, some sporting authorities do. Although, I think that in the light of the latest judgment, they would be wise to say so expressly in their rules”.
The reality is that the Supreme Court’s decision has done little to change the landscape in the sporting context:
(c) A real life example
Since For Women Scotland, there has been (at the time of writing) one sports case applying the Supreme Court’s judgment: Haynes.
Ms Haynes is a professional eight-ball pool player, and a transgender woman, who claimed direct discrimination on the ground of gender reassignment against the English Blackpool Pool Federation (“EBPF”). The EBPF had introduced a change in its rules so that only people who were born female would be permitted to play in its female competitions and teams, which meant that Ms Haynes could no longer play for her team.[15]
Was the treatment sex or gender reassignment discrimination?
Parker J dismissed Ms Haynes’ claim. The effect of For Women Scotland was that Ms Haynes “must be regarded as male”.[16] Parker J held that she had been treated as a man by the EBPF, in accordance with the law as stated in For Women Scotland, and was therefore ineligible for the women’s competition.[17] Her exclusion was a matter of sex discrimination, not gender reassignment discrimination (i.e., she was excluded because she was biologically male, not because she was transgender).[18] The claim therefore fell at this first hurdle.
It was noted that if Ms Haynes had claimed for sex discrimination, the Defendants would have needed to prove that pool was a “gender-affected activity” in order to justify her exclusion under s195(1) EA 2010. However, she had only claimed gender reassignment discrimination and since there was none, s195(2) EA 2010 did not arise.[19]
Is pool a gender-affected activity?
Although it was not necessary to decide whether pool is a gender-affected sport, it was an issue on which both parties called expert evidence and so Parker J answered the question in any event. Both parties agreed that pool is a “sport, game or other activity of a competitive nature”.
The critical issue was whether pool is a game conducted “in circumstances 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 as competitors in events involving the activity” (per s.195(3) EA 2010).[20] Parker J accepted that any advantage only needed to be “more than minimal”, because in sport a “small but clear advantage can make the difference between winning and losing.”[21]
Parker J split the consideration of s.195(3) EA 2010 into two questions and offered guidance on how each should be approached[22]:
1. Whether there are differences between the physical strength, stamina or physique of average persons of one sex compared with average persons of the other sex?
2. If so, whether those are differences which “would put them at a disadvantage […] as competitors“?
In short, “s195(3) EA 2010 requires the court to consider whether a woman of average physical strength, stamina and physique and who is reasonably experienced in the relevant sport game or activity would be at a disadvantage when competing against a similarly experienced man of average physical strength, stamina and physique.”[23]
Four experts gave evidence on a wide range of potential factors, from the speed of break shots to the impact of hormonal cycles in cue sports. Parker J found that the break shot in pool is important and a factor in doing this successfully is achieving the highest cue speed possible without losing accuracy.[24] Greater absolute strength gives an advantage in pool because it translates to a higher achievable cue speed and thus a better break shot.[25] The ability to take more shots without resorting to a rest is a further sex-related advantage enjoyed by the average male over the average female.[26] Lesser strength and reach put the average woman at a disadvantage when competing against the average man at English eight-ball pool. Therefore, pool was held to be a gender-affected activity.[27]
Was the exclusion necessary to secure fair competition?
In respect of s195(2) EA 2010, “necessary” was taken to mean “something that is more than merely desirable, but may be less than utterly essential”.[28]
The starting point in determining this issue was said to be the “relevant differences of physical strength, stamina and physique as between trans women and biological women”.[29] Given the expert evidence, it was difficult to identify what steps (short of exclusion) would be enough to ensure fair competition.[30]
Parker J noted that testing for testosterone suppression and allowing transgender women to compete in pool if they tested below a certain level would not be viable since that would not remove the advantage of reach, and the impact on strength was unclear.[31] A suggestion that some form of handicap could work was not proposed in enough detail for the judge to be persuaded that it could provide a fair alternative to exclusion.[32]
As a result, Parker J held that there was no reasonable alternative way of achieving fair competition short of exclusion, so even if this had been a case of gender reassignment discrimination, the exclusion of transgender women from female English eight-ball pool would have been justified under s195(2) EA 2010, in any event.[33]
Was the exclusion a proportionate means of achieving a legitimate aim?
The Defendants had also advanced a Schedule 3, Paragraph 28 EA 2010 defence. They argued that the exclusion of transgender women from female competitions was a proportionate means of achieving a legitimate aim, that aim being to ensure (i) fairness of competition and (ii) diversity through the inclusion of females.[34]
Parker J dealt with this briefly, finding that whether the exclusion was a proportionate means of achieving a legitimate aim “substantially overlaps” with whether the exclusion of transgender women was necessary to secure fair competition.
He held that “fairness of competition is undoubtedly a legitimate aim, and if… exclusion is necessary to achieve fairness then it must be a proportionate means of doing so.”[35]
In relation to the other aim relied on – diversity through the inclusion of females – while encouraging greater female participation was found to be a legitimate aim, the exclusion of transgender women was not deemed to be a proportionate means of achieving it.[36]
What does Haynes show us?
This case illustrates how:
IV. CONSIDERATIONS FOR SPORTING BODIES
Current sporting body policies
Sporting bodies have adopted a range of policies in respect of the participation of transgender athletes. For example:
| Sporting Body | Policy on Transgender Athletes’ Participation |
| The FA | From 1 June 2025 transgender women are no longer able to play in women’s football in England. |
| Rugby Football Union | Non-contact forms of rugby such as tag, touch and T1 are mixed-gender and are available to all without gender-based or sex-based eligibility criteria. The RFU have set specific guidelines for different age-groups: in relation to the “adult female category”, players are only permitted to play if the sex that was originally recorded at birth was female, irrespective of gender identity. |
| The ECB | Only those whose biological sex is female will be eligible to play in women’s cricket and girls’ cricket matches. Transgender women can play in open and mixed cricket. |
| UK Athletics | Those with a gender different from the sex observed at birth cannot compete in the female category from 1 April 2023 unless approved by UK Athletics as complying with World Athletics Regulations to be able to compete in the female category. |
| Swim England | Two categories – open (athletes with a birth sex of male, transgender or non-binary competitors and any competitor not eligible for the female category) and female (athletes with a birth sex of female). |
| British Cycling | In respect of competitive activity, to compete in the female category, the competitor’s birth sex must be female. Once a transgender male or non-binary competitor (whose birth sex is female) commences hormone treatment, they will not be eligible to participate in the female category. In respect of non-competitive activity, all transgender and non-binary participants are able to take part in British Cycling sanctioned Non-Competitive Activity (save for the Breeze programme which is open to transgender women, non-binary participants and those whose sex was assigned female at birth). |
Risks of discrimination claims
As set out above, in reality, the Supreme Court decision has done little to change the landscape in respect of transgender participation in sport.
Issues of direct and/or indirect discrimination are likely to arise if transgender athletes are either included or excluded from single-sex sporting categories and/or competitions without proper consideration of the applicability of s.195 EA 2010. This is not an easy conflict to resolve. The Supreme Court has left it open to sporting bodies to grapple with this issue.
As well as the potential for transgender athletes to bring discrimination claims if they are excluded, there are also risks of cisgender athletes bringing claims if they are made to share their single-sex category with a transgender athlete.
Take the example of a cisgender woman competing in the women’s category of a sport, who challenges her sporting body, because it has allowed transgender athletes to opt-in to the competition category that corresponds with their acquired gender. She might claim indirect discrimination contrary to s19 EA 2010, in which case:
Whether a sporting body is likely to be successful in a justification defence will be highly case- specific. How the case was put and argued will be of central importance. A court or tribunal may readily accept that promoting transgender inclusivity is a legitimate aim. However, the critical battleground is likely to be on proportionality. This will require a careful assessment of the potentially discriminatory impact of the sporting body’s approach, against the aims pursued by that approach, and whether there were alternative ways of achieving those aims.
The latter point is particularly important for sporting bodies. Those who wish to take a transgender-inclusive approach should ensure that they have considered all the options which would achieve its aims and carefully compare their possible discriminatory impact before deciding what to do. This is because it will need to be confident in any justification defence of its policy and willing to face scrutiny of its approach.
Practical steps
Sporting bodies are advised to do the following:
Mia Chaudhuri-Julyan
Sophie Cashell
[1] [8].
[2] [6].
[3] [151].
[4] [253]. This would be subject to satisfying the definition within s.7(1) EA 2010. However, direct gender reassignment discrimination by perception and/or association did not appear to be considered by the Supreme Court.
[5] [250].
[6] [252].
[7] [256]. Again, the definition within s.7(1) EA 2010 may need to be considered.
[8] [260].
[9] [234].
[10] Robin White, A Practical Guide to Transgender Law, Chapter 17.
[11] Ibid.
[12] [264 – 265].
[13] [234].
[14] [248]; [250 – 261].
[15] [6]-[7].
[16] [70].
[17] [80].
[18] [85].
[19] [85].
[20] [128].
[21] [129].
[22] [133]-[135]; [139]; [241]-[242].
[23] [138].
[24] [239]-[240].
[25] [242].
[26] [246].
[27] [250].
[28] [251].
[29] [254].
[30] [256].
[31] [259].
[32] [260]-[262].
[33] [263].
[34] [264].
[35] [265].
[36] [266].
