A step change in sports policy

The UK Sports Councils’ new guidance on trans inclusion is a breath of fresh air

Artillery Row

Today, the UK Sports Councils have stepped into the gap left by the International Olympic Committee (IOC). They’ve thought carefully about safety, fairness, and inclusion for sport. And they’ve got it — mostly — right.

At Tokyo, everyone could see that the inclusion of Laurel Hubbard in the women’s weightlifting competition was unfair. The IOC have declared that their inclusion rules were “not fit for purpose” and promised to deliver a new framework in September. But they’ve failed to agree any new ones, leaving world sport in limbo.

Meanwhile, the UK Sports Councils have developed a series of guidelines which were published on Thursday 30 September and developed by the Sports Council Equality Group (SCEG). They’ve carried out the largest ever investigation into sports policy on this issue.

The push for trans-inclusion was an attack on the integrity of sport

SCEG say that it is not possible to secure safety, fairness, and the inclusion of trans women in women’s sport. They’re right. They say that their previous policy, like the IOC policy — is not fit for purpose. This is right, too. The emphasis on Testosterone levels as the appropriate marker has failed. Policy that — on the most charitable interpretation — aspired to fairness has failed to achieve it because, as Miroslav Imbrisevic puts it, Testosterone is not the only game in town.

There was a fundamental divide between two camps on this. On the one hand was a group of advocates and activists who wanted to make sport subservient to inclusion, as they understood it. On the other side were people concerned directly with the integrity of sport. It needs to be said that the push for trans-inclusion, in the absence of any scientific justification, was an attack on the integrity of sport.

SCEG want the criterion for sex-categorised sport to be sex recorded at birth. This is straightforward, legal, and in line with the specific exemption for Sport in the EA2010 at section 195. It’s lawful to ask for, and record, sex at birth for these purposes.

They therefore set out three possibilities — on Page 9 of the Guidelines:

  1. Trans-Inclusive sport, in the women’s category, where trans-inclusion is prioritised over safety and fairness for women. This is the old-style IOC approach, more or less, with Testosterone reduction. Vitally, they say explicitly that this isn’t fair for women athletes (TI)
  2. Organising sport with two categories: Female and Open (F/O)
  3. Unisex – what they call “universal” sport (U)

This is right, conceptually speaking. They’ve got the different options lined up correctly. They say they are “equally valid” — I’ll come back to that.

SCEG say that a case-by-case approach, such as that advocated by England Rugby, is impracticable and unverifiable. That’s right. England Rugby’s approach must now be dead in the water. And they say that SCEG is not a regulator; it’s for individual National Governing Bodies to make their decision between the three models: (TI), (F/0) and (U).

Here’s the easy bit: a few sports can go for (U) without much of a problem. Certainly Equestrianism, and there are lots of arguments about some shooting events. Perhaps motor racing also fits in this category, though in that case there might be a supplementary social question.

But (U) is not an option for the vast majority of sports because they need sex categories to stop them being dominated by people with male advantages.

So, the option is between (TI) and (F/O). I’m absolutely delighted to see that (F/O) is on the table, and in pole position for all those cases where (U) isn’t possible. I’ve argued for it before in my academic work and to sporting organisations. It felt like an idea that was a bit too radical, so I’m glad it’s got more traction.

But I think there’s a glitch. I don’t think that the options are “equally valid” (whatever that means, exactly: philosophers get sniffy about this use of the word “valid”). So, I’m only 90 per cent delighted because once (F/O) is on the table, (TI) isn’t a serious option.

SCEG say that trans inclusion is not compatible with sport that is fair for women. That’s right. That’s what the research by Hilton and Lundburg, and by Ross Tucker. This is solid scientific evidence, listed in the literature review, fully evidenced. This is now accepted by the other side (like Joanna Harper who want to drop “fair” for “meaningful”).

But that means that SCEG are saying to NGBs: “You decide whether you want sports rules that are safe and fair for women, or rules that are unsafe and unfair to women, but trans-inclusive.” I’m glad that the position is presented clearly. Presenting things clearly is fundamental to philosophy.

“Trans women are women” is a mantra; it’s not a basis for policy

Once the question is put like that, however, there is only one of the two candidate policies that makes sense. I don’t think NGBs can say to women players: “We’ve decided to regulate in a way that makes sport unfair and unsafe for you.” Aside from the legal and insurance issues, I think that is straightforwardly unethical. It uses women athletes as a means to an end, raising the risks of injury and unfairness to them, in a way that is impermissible.

The philosopher we need here is Kant, who proscribes actions that use persons merely as a means to the ends of the actor. So, here, I think SCEG gets it wrong, and that the guidance ought to be tightened up.

Overall I welcome to these proposals. I think that the people involved have done a pretty good job. I’m also pleased that some of the policies I’ve recommended are included in these documents. Things are finally moving in the right direction.

There’s also a broader conversation to be had. After various members of Labour’s front bench made fools of themselves down in Brighton, these new guidelines are a breath of fresh air. “Trans women are women” is a mantra; it’s not a basis for policy. And nowhere is that clearer than in sport. It shows that there are certain contexts in which sexed bodies matter. Not all contexts, but some. And sport is one of them. How much they matter in other contexts is a matter of public policy and empirical investigation.

If Labour is to dig itself out of the rabbit hole, Keir Starmer needs to come up with a sensible policy that makes people lives — especially women’s — fair and secure.

Jon Pike is co-convener of the Open University Gender Critical Research Network and a philosopher of sport and ethics.

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