Excluding transgender pool player from women’s teams was not discrimination
In April 2025, the Supreme Court held that the legal definitions of “woman”, “man” and “sex” in the Equality Act 2010 refer to biological sex. A transgender woman with a gender recognition certificate did not come within the definition of “woman” for the purposes of the Equality Act 2010. (For Women Scotland Ltd v The Scottish Ministers (FWS)).
We have recently had the first decision since FWS relating to transgender issues. The proceedings followed a sport association’s decision to exclude trans women from competing in a competition for women’s teams. In Haynes v The English Blackball Pool Federation the County Court held that there was no gender reassignment discrimination.
Employers and service providers are eagerly waiting for the Equality and Human Rights Commission’s (EHRC) updated Code of Practice for services, public functions and associations to provide practical guidance on managing the implications of FWS. It was recently reported that the EHRC will provide the updated Services Code to the Government by the end of August 2025.
For details of the Supreme Court decision in FWS and the EHRC’s consultation on the Services Code see our previous articles here:
Background
Ms Haynes is a professional English eight-ball pool player and a trans woman with a gender recognition certificate.
The English Blackball Pool Federation (EBPF) organises county pool competitions and these include a competition for women’s teams. In 2022, there had been complaints from female players about competing against transgender women as they thought it unfair to compete against biological men and did not feel comfortable sharing toilets with them.
On 27 August 2023, the EBPF announced a change in its rules so that only people who were born female would be permitted to play in its female competitions and teams. The change took effect on 3 December 2023. This meant that Ms Haynes could no longer play for the Kent women’s A pool team and in women’s competitions although transgender players could play in the “open” category. Ms Haynes claimed that the exclusion was direct discrimination on the grounds of gender reassignment.
County Court
It was accepted that EBPF is a service provider in relation to organising county fixtures. In its defence, EBPF argued three points:
- The revised rules did not discriminate on the grounds of gender reassignment. Ms Haynes was excluded because she was born male and if she had been a transgender person who was born female, she would not have been excluded. The exclusion was therefore discrimination on the grounds of sex, not gender reassignment. As there was no claim of sex discrimination, the claim should be dismissed.
- Alternatively, if the court found that EBPF had discriminated on the grounds of gender reassignment, there was no unlawful discrimination because pool is a “gender-affected activity” as defined in section 195(3) of the Equality Act 2010. A gender-affected activity is 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. The EBPF’s revised rules were necessary to secure fair competition as permitted by section 195(2) of the Equality Act 2010.
- The revised rules were justified as a proportionate means of achieving a legitimate aim namely, “promoting the integrity of the game through fairness of competition and diversity through inclusion of females in the game of pool.”
Five days after the trial concluded, the Supreme Court gave its judgment in FWS and the court gave the parties time to prepare submissions about the effect of FWS on their case.
No gender reassignment discrimination
EBPF argued that Ms Haynes had been prevented from playing for the Kent women’s A pool team because her biological sex is male. This was discrimination on the grounds of sex, not gender reassignment. EBPF’s rules did not involve any discrimination on the grounds of gender reassignment because they did not prevent a trans man from taking part in a women’s competition. Following the decision in FWS that “sex” in the Equality Act 2010 means biological sex, even if the individual has a gender recognition certificate, Ms Haynes must be regarded as male. The present claim was brought only on the grounds of gender reassignment discrimination and should fail. The court agreed. There had been no gender reassignment discrimination and Ms Haynes’ claim could “not survive the outcome of FWS.” Further, in relation to comparators, the correct comparator in this case must be the same sex as Ms Haynes and because of FWS, Ms Haynes’ sex was male.
Gender-affected activity
Having decided the case on the above finding, the court did not need to come to a view about the other parts of EBPF’s defence. However, as four expert witnesses (two for each party) relating to biology, physics and engineering had given evidence, the court decided to address the question of whether or not pool is a gender-affected activity.
It found that there are differences of physical strength, stamina and physique which are relevant to pool and which create a male advantage. For instance, the break shot – “the average man can reliably and consistently generate a higher cue speed with less effort than the average woman. That is a result of differences in physical strength and physique. In addition, on average, men are stronger than women, they have greater reach and their larger hands and longer fingers provide an advantage particularly in creating bridges.
The court concluded that lesser strength and reach put the average woman at a disadvantage when competing against the average man at English eight-ball pool. Accordingly, pool is a gender-affected activity.
EBPF’s case was that the exclusion of trans women from female competitions was a proportionate means of achieving legitimate aim to ensure fairness of competition and diversity through the inclusion of females.
The court’s view was that there was no reasonable alternative way of achieving fair competition short of exclusion. Accordingly, if this were a case of gender reassignment discrimination, exclusion of trans women from female English eight-ball pool was justified under section 195(2) of the Equality Act 2010 as a proportionate means to ensure fairness of competition. However, it did not accept that, were it not for the need to achieve fairness, excluding trans women from female competitions would be a proportionate means of achieving it. Other than the complaints about fair competition, the only other complaints were about sharing toilets and as the court said, that would be an issue whenever trans women are present whether or not competing in the same event.
Comment
As this is the first decision on transgender issues since FWS, the case attracted a lot of attention. The extensive expert evidence produced and the court’s findings relating to gender-affected activity provide a helpful overview of the competitive sport exceptions contained in the Equality Act 2010.
Regarding the updated Services Code, it is reported that the EHRC received more than 50,000 replies to the consultation exercise. Because of the number of replies, the updated Services Code will be provided to the Government by the end of August 2025 rather than the end of July 2025, as originally planned by the EHRC.
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