cases the exemption cannot apply unless there is a gender-affected activity. This is a gateway condition.
235. A gender-affected activity is a defined term. It depends on a determination of whether the physical strength, stamina or physique of average persons of one sex would put them at a disadvantage as competitors in a particular sport when compared to average persons of the other sex. Take boxing as an example. This is undoubtedly a gender-affected activity on a biological interpretation of sex in section 195(3). On this basis, it is readily apparent (indeed, obvious) that women’s average physical strength, stamina and/or physique will disadvantage them as competitors against average men in a boxing match. However, if average women as a group for comparison with average men for the purposes of section 195(1) includes trans women with GRCs (so legally female but biologically male) the differences in strength, stamina and physique between the two groups may begin to fade. Although at present the numbers of trans people with GRCs may be statistically insignificant, that could not have been predicted at the time the GRA 2004 was enacted, and the effect of section 9(1) cannot depend on how many people are issued with GRCs. Each group has members of the opposite biological sex in it and the gateway condition may be difficult to establish at all. Even if the gateway condition is established, the approach to the group of trans sportswomen who are potentially to be excluded would differ on a rationally unconnected basis: whether or not they have a paper certificate. To exclude trans women with a GRC from the boxing competition, the organiser would have the additional burden of showing that it was necessary to do so in the interests of fairness or safety, whereas a trans woman without a GRC could simply be excluded as a male under section 195(1).
236. On the other hand, a biological definition of sex would mean that a women’s boxing competition organiser could refuse to admit all men, including trans women regardless of their GRC status. This would be covered by the sex discrimination exception in section 195(1). But if, in addition, the providers of the boxing competition were concerned that fair competition or safety necessitates the exclusion of trans men (biological females living in the male gender, irrespective of GRC status) who have taken testosterone to give them more masculine attributes, their exclusion would amount to gender reassignment discrimination, not sex discrimination, but would be permitted by section 195(2). It is here that the gender reassignment exception would be available to ensure that the exclusion is not unlawful, whether as direct or indirect gender reassignment discrimination.
(vi) The public sector equality duty and positive action measures for women
237. We have referred above (at paras 127 and 147–149) to the main terms of the PSED (section 149) and the positive action measures available, both in the workplace (section 159) and in the provision of services (section 158). Other specific provision is made
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