Much has been made in recent press and social media coverage in relation to the women’s boxing at the ongoing Olympics between Imane Khelif of Algeria and Angela Carbini of Italy.

Ms Carbini has made the news having abandoned the fight after 46 seconds due to having apparently ‘not felt a punch’ like Ms Khelif’s before and due to ‘fearing for her safety’. The issue? Ms Khelif failed a ‘gender eligibility test’ which prevented her from competing in the 2023 world championships due to having XY chromosomes (most often associated with males).

Outrage has been voiced, and bile spoused, that a woman (Ms Carbini) has been forced to fight a man (Ms Khelif), Ms Carbini has been forced to give up on her dreams as a result and that the world has generally gone mad.

Of course, the first thing that seems to have been missed is that Ms Khelif was born a woman, has lived her life as a woman, has always boxed as a woman and has a female passport. In short, she is not male and never has been.

But, what if she was or had been male? What would the legal position be in this country?

Whilst it seems like this situation has been used by some to fan the ‘anti-trans’ movement caution should be adopted. Has this country actually gone mad? The answer is, of course, no. Adequate protections are already in place.

Transgendered women, who have obtained a Gender Recognition Certificate are women. End of discussion. People may not like it, people may not understand it but that is the legal position until the law is changed. We live in, at first blush, an inclusive society and Parliament has legislated that is unlawful to discriminate against someone because they are transgendered.

Section 195(2) of the Equality Act 2010 states that, in a ‘gender related activity’ (defined as ‘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’) it is permissible to discriminate on grounds of gender reassignment in sport in certain situations.

Such discrimination will not be unlawful where:

… 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.

As one can see, the otherwise discriminatory practice must be ‘necessary…’. Not convenient, not preferred, but necessary, which the writer suggests is a high threshold to overcome, to secure fair competition or the safety of competitors.

Therefore, on the face of it, it would at least be arguably justifiable in this country if a transgender woman was prevented from competing in a female category of boxing, if it could be shown that, to do so, would either jeopardise the safety of the fighters or where the cis-gendered woman would be put at a disadvantage due to the strength, stamina or other physical advantages of the transgendered competitor.

There are three main points to bear in mind before making a judgement on this:
1) Evidence. It always helps to have something to back up the apparent safety fears or advantages that a transgendered athlete is supposed to have. Bias and stereotypes will not do.

2) There is a general lack of scientific data comparing cis-gendered athletes to transgendered athletes. You must remember, to use a male comparison is not fair in the writer’s view because the impact of the continually applied synthetic hormones in transgendered women’s bodies, which are of course not present in cis-gendered mens’ bodies, are not known. Indeed, the research that does exist shows that the synthetic hormones may hinder performance rather than assist (see https://bjsm.bmj.com/content/58/11/586)

3) There is a distinct lack of legal precedent on section 195 and the ‘fair competition defence’.

The case of Haynes v Thomson and Goodwin on Behalf of the English Blackball Pool Federation, in which this firm’s Matt Champ acts for the Claimant, is believed to be the first case in this country to deal with the ‘fair competition defence’.

The case is listed for a trial window to take place in the first half of 2025.

The question of inclusion is a complicated one. However, whilst an important topic, it is hoped that people will see that it is an entirely separate niche that the law already legislates for. It should not be used as a lazy attempt to support the idea to attack transpeople generally.