BUCS (British Universities and Colleges Sport) have recently come under pressure at their conference on the topic of trans inclusivity within competitive sport.
In almost all cases, BUCS mandates universities and students’ unions to enforce the gender eligibility rules of the national governing body for the relevant sport.
This stance is based on a key misunderstanding of the law and recent rulings surrounding single sex spaces. It does not acknowledge that the experiences and ability to transition is different for students than it is for older adults, and is based on an incomplete reading of the legal framework – one that treats the restriction of trans participation as legally required, when in fact it is only permitted, and only where it is proportionate.
The complete restriction of transgender people playing sport as the gender they identify as is not mandated by law, it is only permitted.
Forming a case
Many organisations have recently moved towards a complete ban of transgender athletes competing in the gender category that aligns with the gender they identify as, many have cited the For Women Scotland v The Scottish Ministers case and ruling as their justification.
One example of this is The Football Association, which excluded trans women from women’s football due to the belief that they are legally obligated to do this based on the supreme court ruling, regarding the legal definition of “woman” in the Equality Act.
The Equality and Human Rights Commission has so far failed to clarify that the For Women Scotland v The Scottish Ministers ruling permits exclusion of, for instance transgender women from women-only spaces (such as sports teams), but it doesn’t mandate it.
Under section 195 of the Equality Act, sport can be restricted by sex where this is a proportionate means of achieving fair competition or the safety of competitors – but the burden is on those setting the rules to show that any restriction is proportionate in the specific context, not simply to apply a blanket ban.
As such, it looks to be only permissible to restrict transgender people from playing sport in a category not aligned with the gender they were assigned at birth if it is within “gender affected activities” where it can be shown that the restriction of trans people is necessary for reasons of fair competition or the safety of competitors.
Here, it is clear that the burden of proof for restriction of trans athletes is placed onto those setting the rules, i.e. national governing bodies (NGB), and BUCS who elect to defer to them.
It is also clear that it is not mandated to restrict trans athletes from competition, only made permissible in some cases with sufficient proof.
This lack of clarity means that in adhering to the rules set by BUCS and national governing bodies, universities and students’ unions are enforcing a misunderstanding of the law, seen in not allowing any transgender women to play football in a women’s team. This causes harm to our transgender students, forcing them to miss out on sporting opportunities simply due to a misunderstanding of a legal case.
Transition is different
BUCS often does not use its own gender policy for sports, it uses that of the governing body. Most governing bodies mandate the use of hormones or biological transition to be eligible for sport aligned with the person’s gender identity.
Where NGB eligibility criteria are effectively impossible for the student population to meet – because of NHS waiting lists, the cost of private medical transition, and the ban on puberty blockers for under-18s – deferring to those criteria amounts to a blanket ban in practice. A blanket ban applied without assessing whether it is proportionate in the specific context of student sport is legally vulnerable
It is widely considered that (cisgender) students are different from the general population of adults, this same grace must be given to transgender students too. BUCS itself treats student sport as distinct from elite adult sport in its tiered competition structure, and the same distinction should apply to eligibility policy. This must be acknowledged when creating participation rules for young transgender people.
There are two main differences between transgender students and adults which must be taken into account when regulating their gender eligibility in sports.
The first one is age. Due to long waiting lists for medical transition and hormones (up to five years), and puberty blockers recently being banned for those under 18, it is practically impossible for students to reach the requirements set by national governing bodies.
The second factor which makes meeting the gender eligibility requirements set by NGBs impossible is money. The cost of medical transition is very high and falls on the individual. Most if not all governing bodies state that the individual must provide numerous medical tests, and pay for them.
This essentially means universities and SUs end up enforcing what is effectively a blanket ban on transgender people in competitive sport.
We must do more than simply follow the guidance from NGBs, we cannot support a sporting provision which results in a complete ban on transgender students in competitive sport.
What’s fair and safe
BUCS prioritises “safe” and “fair” competition.
Maximising fairness and safety doesn’t require a blanket ban on transgender athletes in BUCS. In fact, not allowing transgender students to participate in the gender category they identify as is unfair and unsafe.
Most NGB guidance allows trans men to compete with cis men but does not allow trans women to compete with cis women, citing safety. This means safety concerns are only applied when cisgender competitors might be affected – not when trans competitors are placed in categories that may be unsafe for them. A framework genuinely concerned with safety would consider the welfare of all participants.
The exclusion of transgender students from competitive sport in the gender they identify as is not fair for them, and also does not guarantee fairness for cisgender students.
For cisgender people, trans inclusion in sport is not always unfair. Physical differences in sport are normal and accepted, banning tall people from basketball seems absurd, and so does banning the strongest weightlifter from a weightlifting competition.
The proportionality test requires that any restriction is appropriate to its context. BUCS operates across multiple tiers, and much of its provision is participatory rather than elite. A restriction that might be proportionate at premier level – where marginal competitive advantages matter – may not be proportionate at lower tiers where inclusion, wellbeing, and community are central to the purpose of the provision.
Leading in a time of hostility
The EHRC has said it will deal with sport separately, and that guidance is still awaited. In the meantime, the proportionality framework means there is genuine space for BUCS to develop a student-specific approach rather than defaulting wholesale to NGB rules written for elite adult sport.
There are concrete steps BUCS could take.
It could develop its own eligibility framework that distinguishes between competitive tiers – recognising that the case for restriction is different at premier level than it is in participatory sport where community and wellbeing are central to the purpose of the provision.
It could commission its own proportionality assessment for student sport, rather than inheriting one designed for a different context and a different population.
And it could ensure that where restrictions are applied, they are accompanied by alternative provision – so that trans students are not simply excluded from competitive sport altogether with nowhere to go.
With sporting environments frequently being a place where community is created, BUCS has a duty to work towards a policy which prioritises inclusion and clear protections for trans students. As it stands, it risks contributing towards the elevated health risks for trans students facing complete bans from competitive sport.
Moving away from enforcing the NGB eligibility rules and developing a more inclusive and more beneficial framework for all students are the necessary next steps.
