Associate Professor Kris Lines & Dr Jo Beswick“The Equality Act 2010 – 5 years on”, the University of Chester [22nd June 2015]

The Power of Equality (except if you play SPORT): Why the Equality Act 2010 reinforces discrimination

Photo Credits: Purple Sherbet Photography (Flickr)

Outline of the Paper

• Equality Act 2010, s.195• Case-Study1: Women & Girls• Case-Study2: Gender reassignment• Case-Study3: Age• Case-Study4: Race• Other Protected Characteristics• Conclusions

While many of you may be familiar with this….

SexGender reassignment

Race

Age

Other s.4 ‘Protected Characteristics’

• Disability• Marriage & Civil Partnership• Pregnancy & Maternity• Religion or belief• Sexual orientation

You might not be familiar with s.195:

CASE-STUDY1: WOMEN & GIRLSPhoto Credits: Warren Chrismas (Flickr)

- Equality with Men? (integration)

OR

- Emphasise Differences? (Segregation)

Photo Credits: Tim Schofield (Flickr)

Eileen McDonagh & Laura Pappano:

• Female Inferiority to males• The need to protect females from

injuries in competition with males

• The Immorality of females competing directly with males

Single-Sex

Photo Credits: Joshjdss (Wikipedia)

“Mini-Messi” Astroturf?

Officials

• S.195 only applies to competitors NOT officials

• BJA v. Petty [1981]

• But are there ‘glass ceilings?’

Mixed sport?

Sir Stirling Moss:“The mental stress I think would be pretty difficult for a lady to deal with in a practical fashion. I just don’t think they have the aptitude to win a Formula 1 race.”

Photo Credits: Sarah Davison (Flickr)

Mixed Sport

Photo Credits: Alvin Ang (Flickr) Photo Credits: Sultry/Sulky/ Silly (Flickr)

Bennett v. Football Association (1978)

s.195 (3)

“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”

Rob Burrow (Super League Rugby)

Photo Credits: Mtaylor848 (Wikipedia)

Dr Jo Beswick

Mixed sport: Same Height?

Photo Credits: Rona Proudfoot (Flickr)

ISAF (Olympic Sailing)

1980: 6 events; all events open to men and women

1984: 7 events; 6 open, 1 men’s 1988: 8 events; 4 open, 3 men’s, 1 women’s 1992: 10 events; 4 open, 3 men’s, 3 women’s 1996: 10 events; 4 open, 3 men’s, 3 women’s 2000: 11 events; 5 open, 3 men’s, 3 women’s 2004: 11 events; 4 open, 3 men’s, 4 women’s 2008: 11 events; 3 open, 4 men’s, 4 women’s 2012: 10 events; 2 open, 4 men’s, 4 women’s 2016: 10 events; NO OPEN, 5 men’s, 4 women’s, 1 MIXED

Irony is that to increase women’s participation, ISAF mixed events have been reduced

Sex Discrimination Act 1975 (as amended by 2008 regulations)

Sport etc.[F21944.(1)]Nothing in Parts II to IV shall, in relation to any sport, game or other activity of a competitive nature where the physical strength, stamina or physique of the average woman puts her at a disadvantage to the average man, render unlawful any act related to the participation of a person as a competitor in events involving that activity which are confined to competitors of one sex.

[F220(2)Subsection (1) applies to discrimination under sections 29 to 31 which falls within section 2A, only if the discrimination is necessary to secure—(a) fair competition, or(b) the safety of competitors, at such events.]

s.195 (3)?

“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”

Photo Credits: Michael Coghlan (Flickr)

CASE-STUDY2: GENDER RECOGNITIONPhoto Credits: Michael Coghlan (Flickr)

Not Binary…

Photo Credits: Amazon

Photo Credits: Erik van Leeuwen (Wikipedia)

Photo Credits: Duncan Rawlinson (Wikipedia)

“There is one thing that a transsexual woman unfortunately cannot expect to be allowed to do, and that is to play professional sports in her chosen field. She can get married, live as woman, do all of those other things, and no one should ever be allowed to take them away from her. But this limitation—that’s just life. I know because I lived it.”

Now, she still wonders if it was the right thing to do: “f I had it to do over, I would have my sex change because that’s what I was destined to do. But would I have tried to play professional women’s tennis? Maybe not.

Although note Renee Richards most recent 2015 interview:

Photo Credits: Soft Surfaces Ltd (Flickr)

Medico-Legal vs Sporting Rules

http://www.transathlete.com/

s.195 (2)

(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.

Photo Credits: Torbakhopper (Flickr)

But what about Intersex?

CASE-STUDY3: AGE

Photo Credits: Martin Beek (Flickr)

4x Most recent age-discrimination cases:

Martin v. PGMOL (2010)

Conroy v. SFA (2013)McCririck v. Channel 4 (2013)

Photo Credits: Will Palmer (Wikipedia)

Willey & Sharpe v. ECB (2015)

Lawful if it is a PROPORTIONATE aim

Photo Credits: Brian Clayton (Flickr)

s.195 (7)

(7) A person does not contravene this Act, so far as relating to age discrimination, only by doing anything in relation to the participation of another as a competitor in an age-banded activity if it is necessary to do so—

(a) to secure in relation to the activity fair competition or the safety of

competitors,

(b) to comply with the rules of a national or international competition, or

(c) to increase participation in that activity..

Photo Credits: Torbakhopper (Flickr)

s.195 (7)(b)

(b) to comply with the [CONTRACTUAL] rules of a national or international competition???

Photo Credits: Phillippa Willets (Flickr)

CASE-STUDY4: RACEPhoto Credits: Eric Constantineau (Flickr)

s.195 (5)(5) A person who does anything to which subsection (6) applies does not contravene this Act only because of the nationality or place of birth of another or because of the length of time the other has been resident in a particular area or place.

(6) This subsection applies to—(a) selecting one or more persons to represent a country, place or area or a related association, in a sport or game or other activity of a competitive nature;(b) doing anything in pursuance of the rules of a competition so far as relating to eligibility to compete in a sport or game or other such activity..

Photo Credits: Pierre-Sellm (Flickr)

RFU: “So I would like to confirm that it is our strong intent, from the end of the Rugby World Cup 2011 through the RWC 2015 cycle, to select our Elite Player Squads at all levels entirely from players playing at English clubs where at all possible

OTHER PROTECTED CHARACTERISTICSPhoto Credits: Got Credit (Flickr)

Disability: REASONABLE ADJUSTMENTS?

Pistorius v. IAAF (2008)

Photo Credits: Will Clayton (Flickr)Photo Credits: Flguardian2 (Flickr)

PGA Tour, inc v. Martin (2001)Hall v. VAFA (1999)

Photo Credits: Trygve Utstumo (Flickr)

Religion

Sexual Orientation

Photo Credits: Guillaume Palmer (Flickr)

Is the problem actually International Sport?

Sagen v. VANOC (2010)

Photo Credits: Jungle Boy (Flickr)

Nagra v. CABA (2000)Martin v. IOC (1984)

Photo Credits: Pau.Artigas (Flickr)

The challenge is to justify why the Equality Act 2010 should contain exemptions for sport….

Is Equality best served by:

- Emphasising differences?- Removing segregation?

QUESTIONS?