Gender reassignment discrimination

This is the first decision dealing with transgender discrimination since the Supreme Court’s ruling in For Women Scotland (FWS) v Scottish Ministers.  Given it’s such a topical subject, it’s worth reporting.

In Haynes v The English Blackball Pool Association, the pool association decided to exclude transgender women (i.e. people who were biologically male) from the female category of competition.

The Claimant, a transgender woman with a Gender Recognition Certificate, alleged that this exclusion amounted to direct gender reassignment discrimination.The county court found no discrimination had taken place. Following For Women Scotland, ‘sex’ in the Equality Act 2010 refers to biological rather than certificated ‘sex’. The claim was dismissed as, in light of For Women Scotland, the correct comparator for the Claimant was a man without the protected characteristic of gender reassignment. Such a man would also have been excluded from pool’s female category, so the Claimant was unable to show different treatment.Although it was not necessary for the disposal of the case, the Court took the opportunity to confirm:

• pool is a “gender affected activity”, such that it could lawfully be organised into separate competitions for men and women as this was necessary to secure fair competition (s195 Equality Act 2010).

• the pool association was providing a service (organising tournaments) and treating men and women differently in the provision of that service. However, this different treatment was not discriminatory as it was a proportionate means of achieving the legitimate aim of “promoting the integrity of the game through fairness of competition and diversity through inclusion of females in the game of pool” (Schedule 3 para 28 Equality Act 2010).