Supreme Court’s landmark gender ruling — a defining moment for sports governance

The Supreme Court has delivered a landmark judgment that’ll have far-reaching consequences for sports governance and specifically the eligibility of transgender women to compete in women’s sporting categories. 

The ruling provides essential legal clarity on the interpretation of ‘sex’ under the Equality Act 2010 and is poised to influence regulatory policy across both national and international sporting bodies.

As a law firm with extensive experience in advising and supporting national governing bodies, international federations and athletes, we’re uniquely positioned to assist clients in interpreting and applying this decision within their organisational frameworks. 

The judgment not only sets a judicial precedent but also underscores the legal obligations of sports entities under equality and anti-discrimination law.

Here, Catherine Forshaw — a regulatory, safeguarding and athlete eligibility expert who sits as the Legal Representative and Chair on a number of national governing body eligibility and inclusion panels that deal specifically with the inclusion of transgender athletes in sport — explains what the Supreme Court’s ruling means for policymakers, sportspeople and grassroots sport.

Background to the ruling

The Supreme Court determined that the "concept of sex is binary" and a person with a Gender Recognition Certificate (GRC) — a formal document giving legal recognition of someone’s new gender — in the female gender "does not come with the definition of a woman".

The case against the devolved Scottish government — brought about by campaigners For Women Scotland — asked the Supreme Court to determine what the law meant by 'sex', given that the Scottish government had argued the 2004 Gender Recognition Act defines it as "certificated sex".

The judgment was limited to the precise interpretation of the equality legislation (the Equality Act 2010) which applies to the UK (not just Scotland) and is designed to prevent various forms of discrimination but provides an exemption allowing competitors to be excluded from a "gender-affected" sport or activity based on their sex under section 195.

The Supreme Court's unanimous decision held that the terms 'woman' and 'sex' in the Equality Act 2010 refer to a biological woman and biological sex. Delivering the judgment, Lord Hodge made clear that the ruling wasn’t intended as a societal statement on gender identity but rather a legal clarification to guide regulatory compliance and statutory interpretation.

The central legal issue pertained to whether such a bar constituted unlawful discrimination under the Equality Act 2010 (the Act). While the Act protects individuals from discrimination on the basis of gender reassignment, it also permits single-sex exceptions in certain contexts — including sport — where such exclusion is a proportionate means of achieving a legitimate aim like fairness or safety.

Legal & regulatory implications

The ruling arrives amid intense public debate over the intersection of transgender rights and women’s rights, particularly in the women’s sport arena. Consequently, the ruling has material consequences for sporting organisations and national governing bodies. 

While it doesn’t compel national governing bodies to reconsider their rules on eligibility or make any immediate changes to existing policies, it does establish a legal benchmark by which future eligibility rules may be measured. 

National governing bodies — many of which have already implemented eligibility criteria based on biological sex or testosterone thresholds — are now better placed to justify such policies as legally sound.

The Supreme Court has confirmed that inclusion and non-discrimination must be balanced against legitimate interests such as fair play and safety — principles that have been long upheld in sport. 

The ruling supports a more tailored, evidence-based approach — allowing national governing bodies to impose proportionate eligibility requirements without contravening equality laws.

Impact on current & future policies

This decision is expected to reinforce the direction already taken by several high-profile UK sporting bodies with many already introducing restrictions on transgender women competing in female categories. World Athletics and British Cycling were two of the first governing bodies to introduce an outright ban on transgender women participating in women’s events. 

In August 2023, British Rowing announced that transgender women wouldn’t be permitted to compete in the women’s category at its events. This was followed swiftly by the Rugby Football Union (RFU) and UK Athletics, which had both previously allowed transgender women to compete in female categories if they met testosterone requirements.

British Triathlon pioneered the establishment of an ‘open’ category in 2022, a concept that has also been adopted by World Aquatics. Earlier this month, The Football Association updated its policy around transgender athletes competing in all levels of women’s football — from grassroots through to the top-tier Women’s Super League — introducing stricter eligibility criteria for transgender women and non-binary players in the women’s game. A new formal process will give The Football Association “ultimate discretion” over eligibility for transgender women and non-binary players to play in the women’s game. Any decisions will be managed on a “case-by-case basis”.

England Hockey has also recently updated its transgender and non-binary participation policy, with the creation of a female category for “participants recorded female at birth, which includes transgender men not undergoing hormone treatment” and an open category for all, which will come into effect in September 2025.

While these policies vary, they’re increasingly aligned with the Supreme Court’s clarification. The ruling is likely to prompt further policy refinement and potentially stricter regulatory requirements — especially in elite competition. 

However, the Supreme Court’s recognition of the need for a proportional approach means that there’s scope for tailored policies in different disciplines and levels of sport.

Grassroots sport & community impact

At the grassroots level, the implications of the ruling are nuanced. Recreational and community sports have historically maintained more inclusive policies, often without stringent medical or legal requirements. However, the legal clarity provided by the Supreme Court may prompt more cautious approaches — particularly where single-sex facilities or contact sports are concerned.

Some advocacy groups have expressed concern that the ruling may inadvertently increase barriers for transgender athletes at the community level. Others argue that clear legal parameters will assist organisations in making fair and consistent decisions, reducing the risk of legal liability or reputational harm.

Athlete & stakeholder reactions

The ruling has drawn mixed reactions from the sporting community. Prominent female athletes have welcomed the legal clarification as a necessary safeguard for fair competition. Notably, former Olympic swimmer Sharron Davies described the judgment as a victory for female athletes and biological fairness.

Conversely, advocacy groups such as Football v Transphobia and Pride Sport UK have raised concerns about the potential for increased discrimination and exclusion, particularly in amateur sport. These differing viewpoints reflect the complexity of the issue and the ongoing need for informed, empathetic policymaking.

The Football Association has said that there are 20 transgender women registered to participate in amateur football in England while the most recent census (from 2021) states that there are 260,000 transgender people in total in the United Kingdom.

According to a Kick It Out report from 2024, there were 22 reported instances of abuse towards players based on gender reassignment in the 2023-24 season across the professional and grassroots game. That is double the instances reported in the season before.

This rise mirrors the situation in the country as a whole, with a Home Office report from October 2023 stating that there were 4,732 hate crimes committed against transgender people in England in the preceding year — a rise of 11% from the year before.

What happens next?

The Supreme Court’s decision represents a pivotal legal development with enduring impact across all levels of sport. 

It calls on governing bodies, regulatory agencies and policymakers to ensure that their rules comply with the clarified legal framework while respecting the dignity and rights of all participants.

UK Sport — which funds Olympic and Paralympic athletes but isn’t a regulator of sport governance — said in a statement that it’s “committed to working with colleagues across the Sports Councils to consider any implications of the ruling on our guidance to sports”. In 2021, the body issued guidance on transgender inclusion in domestic sport in partnership with Sport England, Sport Wales, Sport Scotland and Sport Northern Ireland that deferred any decisions about trans inclusion to individual sports.

Talk to us

As expert legal advisers across the world of sport, we’ve provided extensive support to numerous national governing bodies — helping them to navigate the complexities of transgender athlete participation.  

As the dialogue surrounding inclusion and fairness continues to develop, we remain dedicated to guiding organisations in fostering equitable, legally compliant and respectful sporting environments.

If you’d like more information on how this ruling could affect your organisation or policies, our team is here to help. 

Talk to us giving us a call on 0333 004 4488, sending us an email at hello@brabners.com or completing our contact form below.