Sport: Supreme Court Ruling on Sex and Gender
(Limited Text - Ministerial Extracts only)
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Lord Moynihan
To ask His Majesty’s Government whether they intend to hold meetings with the British Olympic Association and national governing bodies of sport, including the Football Association, to discuss the implications for British sport of the Supreme Court ruling on the terms “woman” and “sex” in the Equality Act 2010.
The Minister of State, Office for Equality and Opportunity (Baroness Smith of Malvern) (Lab)
My Lords, it is for each sport’s domestic national governing body to set their own policies for who can participate in domestic competitions. We have always been clear that, when it comes to women’s sport, biology matters. We will continue to support sports to develop policies that protect fairness and safety. Our sporting bodies also need to come up with approaches to ensure that everybody has the opportunity to take part in some capacity.
Lord Moynihan (Con)
My Lords, I proposed an amendment in 2004 to the then Gender Recognition Bill, which was agreed by your Lordships’ House and reflected in the Equality Act 2010, to exempt sports governing bodies from the legislation on the grounds of fair competition and the safety of competitors. Nevertheless, does the Minister agree that, given the widely differing interpretations within the world of sport, government advice on these two very sensitive but important issues, in collaboration with Sport England, would be definitely welcomed?
Baroness Smith of Malvern (Lab)
The noble Lord is right that the Equality Act has always enabled sporting bodies to make decisions on the basis of safety and fairness, which we wholly support, but there are also considerable differences between individual sports in terms of, for example, the age or level at which safety and fairness become really crucial elements. I am not sure that it is the role of government to intervene in the way he is suggesting, because the clarity from the Supreme Court ruling, interpreted in relation to each individual sport, is probably the appropriate way for governing bodies to go.
Baroness Hayter of Kentish Town (Lab)
My Lords, far fewer women than men, at all levels, participate in sport, and Sport England made money available to parkrun to encourage young women to participate. Because of the way parkrun keeps its figures, it allows men to self-identify and to have their times put as if they were women’s times, which is terribly discouraging for women coming into the sport. Could the Government subtly have some discussions with Sport England? Maybe it would really be fair for women if their times could be kept just for born women.
Baroness Smith of Malvern (Lab)
I am an enormous fan and participant in parkrun, which manages to provide enormous opportunities for running for both very talented runners and people like me. The noble Baroness makes an important point about everybody being able to identify their performance on the basis of a fair comparison. It is for parkrun to listen to that and to make the relevant decisions.
Baroness Hunt of Bethnal Green (CB)
My Lords, the Minister will be aware, as has already been alluded to, that the Equality Act and the Gender Recognition Act have always allowed trans people to be excluded from sports, and the Supreme Court judgment has not changed that. The most complicated area for elite sport and international sport is around those who are not trans but for whom it is hard to determine whether they are a woman. The Supreme Court judgment defines biological sex as something that is assigned at birth. Does the Minister think that it is the role of the Government to re-examine what we mean by biological sex, to enable elite sport and international sport to make a more balanced judgment about who is allowed to compete in the category of woman?
Baroness Smith of Malvern (Lab)
Frankly, no, I do not think that it is the role of government to determine for international sporting bodies how they make those decisions in the very difficult circumstances that the noble Baroness identified.
Lord Addington (LD)
My Lords, will the Government confirm that they will make sure that sports themselves—with medical help—make these decisions, and that they make their decisions based on, as the Minister already said, safety first and then fairness? They must make sure that everybody knows that, because confusion has been eating away at the structure of sport.
Baroness Smith of Malvern (Lab)
That is what I just said in my previous answer. It is the responsibility of sports governing bodies to make decisions that are appropriate for their sports and that also deliver the safety and fairness that have always been at the heart of the legislation in this area. That is the most appropriate way forward.
Baroness Williams of Trafford (Con)
My Lords, following on from the question from the noble Baroness, Lady Hunt, we can all think of examples in international sport which are some of the most complex and do not relate to trans athletes’ participation but the methods used to determine whether someone is male or female. Will the Government be providing better clarity on this aspect for international sporting bodies?
Baroness Smith of Malvern (Lab)
The noble Baroness is right that the controversy or difficulty comes through the methods that are used to determine sex or conditions for entry within those sports. I still think it is not the role of government or within the power of government to tell international sporting bodies what conditions and rules they should have in place for participation in those sports.
Baroness Griffin of Princethorpe (Lab)
My Lords, given that a lawful and meaningful consultation requires consultees to be afforded adequate time to respond, can my noble friend the Minister confirm how long the Government will consider adequate for the EHRC’s consultation, in the context of a highly complex area of law that has attracted a wide range of interpretations?
Baroness Smith of Malvern (Lab)
It is clear that this is both a difficult and sensitive area, not least because this is my third or fourth appearance at the Dispatch Box on it since the ruling. My noble friend refers particularly to the development of the code of practice by the Equality and Human Rights Commission, which will be a very important way of ensuring that providers of services—less so, I have to say, for sports governing bodies—have more clarity about the application of the Supreme Court ruling. It is clearly important that there is sufficient time for people both to consider the implications of that and to make representations. I hope and believe that it is the intention of the Equality and Human Rights Commission that people have the chance to make those representations over a suitable period of time.
Lord Young of Acton (Con)
My Lords, in light of the Supreme Court judgment, as well as the FA’s change of policy, will the Minister take this opportunity to invite—not tell—the FA to apologise to those women whom it has penalised for objecting to the participation of biological males in women’s football. I am thinking in particular of the teenage girl who received a six-match ban from Lancashire FA for asking a bearded opponent she was about to play against on a ladies team whether he was a man.
Baroness Smith of Malvern (Lab)
As I have said previously, the Supreme Court judgment provides us with some clarity around the definition of sex within the Equality Act on the basis of biological sex. The priority now is for all of us to go forward, through the Equality and Human Right Commission’s code of practice and through the way we deal with this issue, not in a spirit of looking backwards or recrimination but in a way that enables us to ensure that this judgment is properly administered and represented in the changes that are made and to ensure that everybody in this quite sensitive area is treated with decency and respect. Looking forward is important now.
Baroness Ludford (LD)
My Lords, could the Minister tell us what action the Government are taking in other sectors to ensure the prompt implementation of the Supreme Court’s clear confirmation that sex in the Equality Act must mean biological sex, not gender identity? For instance, in policing, the National Police Chiefs’ Council says
“we will not rush our response”,
which means in practice, police officers will still be allowed, or required, to strip search members of the public of the opposite sex to themselves. This does not require lots of practicality about implementation; this can change from one day to the next.
Baroness Smith of Malvern (Lab)
I am sure the noble Baroness is right that a whole range of different organisations are currently considering their practice. The Supreme Court ruling brings clarity about the definition of sex, and it is on that basis that a whole range of organisations, including the police, should be considering what changes are necessary.