First decision on transgender discrimination since Supreme Court ruling in FWS

First decision on transgender discrimination since Supreme Court ruling in FWS

A recent judgment in the Canterbury County Court has shown the impact of the Supreme Court’s decision in For Women Scotland Ltd (FWS) V The Scottish Ministers on the interpretation of the Equality Act 2010.

In Haynes V Thomson & Goodwin (on behalf of the English Blackball Pool Federation) it was decided that transgender women were to be excluded from the female category of competition in August 2023. Prior to this trans gender women were able to compete in the female category if they met testosterone requirements.

The claimant, Ms Haynes who is a transgender woman with a Gender Recognition Certificate, alleged that her exclusion constituted direct discrimination on grounds of gender reassignment contrary to the Equality Act 2010.

However, the County Court held that following the FWS ruling the terms “sex”, “women” and “man” in the Equality Act 2010 refer to biological sex not certified sex. Consequently, the judge decided that the exclusion of Ms Haynes was discrimination on the grounds of sex and not gender reassignment. As the claim was pleaded only as gender reassignment discrimination and not sex discrimination, it could not succeed. Therefore, the judge found that the claim must be dismissed.

Due to the FWS ruling the court found the correct comparator for the claimant was a biological man without the protected characteristic of gender reassignment. A man like this would also be excluded from the female pool competition and therefore the claimant was unable to show different treatment.

Despite not being determinative for the case, the court also considered in detail whether pool as a sport is a “gender affected activity”. After looking at evidence from experts it was concluded that it is, due to physical differences between biological men and women which affected competitive outcomes.

As a result, it was found that if the claim had succeeded on other grounds, the exclusion of trans women would have been justified as necessary to ensure fair competition because of the physical advantages caused by male puberty and the lack of possible alternatives to exclusion.^..

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