Evidence to the Scottish Government: female participation in sport

Woman’s Place UK is a group of women from a range of backgrounds who are united by our belief that women’s hard-won rights must be defended. Women face entrenched and endemic structural inequality. This is why sex is a protected characteristic in the Equality Act 2010. This includes Section 195 (1) ensuring the legality of single-sex sport in sex-affected sports. We believe this right must be defended.

In July 2019 we collaborated with Fair Play For Women to organise a public meeting entitled ‘A Woman’s Place is on the Podium’. An audience of 750 filled the QEII Centre in Westminster to listen to Olympic medallist swimmer Sharron Davies and developmental biologist Dr Emma Hilton about the importance of single-sex sports. Messages of support from Lady Tanni Grey-Thompson and Dame Kelly Holmes were screened. It wasn’t just the women sports legends showing their solidarity; former Olympic decathlete Daley Thompson had come along to show his support too.

The message from the platform was that female athletes and sports participants are entitled to equal opportunities, fairness and safety in sport, and that for most sports this necessitates dedicated female categories. Further, that self-identification into opposite sex categories compromises, in particular, fairness and safety for girls and women. WPUK’s evidence to the Scottish Government echoes the voices of so many, sex matters in sport. All speeches are available on video as is the account of our meeting. (2)

 

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What issues, if any, affect women and girls taking part in community sport and physical activity? How might these challenges be overcome?

2.1. The significant decline in participation of girls in sport and physical activity as they reach adolescence and associated structural and individual barriers has been well documented in decades of research and policy. The sex participation gap in a range of sports is significant so that girls and women are significantly under-represented in sport and physical activity 3, and from age 8-10 years onwards activity levels of boys and girls diverge with a substantial decrease in percentage of girls meeting physical activity guidelines. The percentage of 13-15 year old girls
meeting guidelines dropping as low as 11% compared to 24% for boys. For girls the 22% point decrease in those meeting guidelines between the ages of 8-10 years and 13 to 15 years is a major challenge with, for many, the seeds of a life of sedentary behaviours and associated chronic health problems being sown at this young age (4) (5).

2.2. WPUK’s evidence to the Scottish Government would like to flag the Scottish Household Survey data 2014 showing lower levels of female participation in football (7%) and golf (15%). However, given the shift to a gender identity question in 2018, it is no longer possible to ascertain the extent to which participation by sex has changed. Nevertheless, The sex participation gap starts at around 8 and widens as girls move into secondary school (6), 64% of school-age girls stop playing sport by their mid-teens because of period pain and shame (7), and one in four girls drop out in adolescence, with fear of period leakage a key reason (8). Decades of research documents barriers to sport and physical activity for girls and women and the best work actually asks girls and women for their views, preferences and experiences. The barriers frequently identified include lack of time and childcare, lack of money, lack of transport, personal safety, funding, access to facilities, body image, clothing and equipment, lack of self-confidence, parental and adult influence, male-dominated culture of sport, sexual harassment and abuse, and female invisibility (media and role models) (9).

2.3. Sport and physical activity policy to date has failed to address these barriers and halt this decline. It is impossible for WPUK’s evidence to the Scottish Government to do justice to the breadth and depth of this research and policy documentation in a submission to this Inquiry. Indeed, given the wealth of research that already exists, the imperative is to act upon it rather than repeat it. This submission will not therefore revisit this work in detail, but will instead highlight structural as opposed to individual ‘barriers’ to the participation of girls and women in sport and physical recreation given these have been less comprehensively addressed and/or have been dropped from more recent policy development.

2.4. Structural barriers include:

2.4.1. Lack of recognition of biological sex and associated performance gap between males and females from puberty onwards in sex-affected sports and physical activities
2.4.2. Lack of comprehensive single-sex provision in sex-affected sports from the onset of puberty
2.4.3. Lack of meaningful consultation with girls and women regarding their sport and physical activity preferences
2.4.4. Non-compliance with the 2010 Equality Act on the part of public bodies which conflate the independently protected characteristics of ‘sex’ and ‘gender reassignment’ as the non-legally protected term ‘gender’.
2.4.5. Disproportionate provision and public funding of the sport and physical activity choices of primarily boys and men
2.4.6. Disproportionate emphasis on competitive teams sports in schools rather than a broad and balanced physical education curriculum for both sexes
2.4.7. Ongoing emotional and sexual harassment and abuse in sport primarily affecting female participants and athletes (10).

3. The importance of biological sex

3.1. Although rarely discussed in policy documentation, males have an advantage in sex-affected sports and physical activities from the beginning of puberty onwards. Most sports and physical activities are sex-affected. As a consequence, policies to address the inclusion of girls and women in sport and physical activity must recognise that in sport and physical activity, sex (not gender) matters.

3.2. Sport and physical activity achieves inclusion in sex-affected sports and physical activities from participation to elite levels by providing dedicated participation categories (including age and sex). This ensures the social, health and economic benefits of sport and competitive physical recreation are spread as widely as possible. Otherwise, fit young males would disproportionately participate, compete and win. The puberty-related male performance advantage is 10-13% in rowing, swimming and running, 16-22% in cycling, football and tennis, 29-34% in cricket, volleyball and weightlifting and over 50% in baseball and hockey (11). A comparison between schoolboys and elite females illustrates how big this sex performance gap is. The schoolboy records for the 100, 800 and 1500m are all faster that the elite adult female records (12).

4. The importance of single sex provision

4.1. Boys, and mixed sex sport are barriers for girls who, as well as, and possibly because of, having a biological disadvantage from the onset of puberty onwards in mixed sex sport, become increasingly self-conscious participating in sport with or alongside boys as they get older (13) . Time after time research recommends providing girls-only sessions (14), (15), (16), (17), (18), (19), (20), (21), (22), (23). This is clearly important because of the biological reality of male performance advantage, and associated socio-cultural reasons. These include puberty onset, body image, menstruation and related self-confidence issues. It is clear that inclusion of, and equal opportunities for, girls and women in sex-affected sports and physical activities from the beginning of puberty onwards necessitates dedicated
female spaces, categories, changing rooms and toilets (24). WPUK’s evidence to the Scottish Government would like to emphasis the following recommendations in the Sport Scotland Report ‘Making Women and Girls More Active‘:

‘Ensure girls and women can have privacy in changing rooms and in facilities. If it’s not possible throughout, make sure a couple of showers are private, to enable minority ethnic girls/women to take part.’ (p.25).

‘Provide single-sex activities, staffed by women and make sure that they’re not running next to a men’s session; there’s no point running a women-only aerobics session in one half of a hall, only to have men’s football in the other half.’ (p.25)

‘Provide women/girl-only sessions.’ (p.28)

The same report provides a wealth of good practice examples including: ‘Girls Sports Club’ is an initiative run by the Lottery Funded Project Stramash in Argylland Bute aimed at providing activities after school for girls from P5-S1. The club runs for an hour and a half once a week and has approximately 60 girls turning up to try out a variety of activities such as football, gymnastics, snorkelling, shinty, cheerleading and new age curling. The girls who attend pay one pound and the money is all invested in new equipment so that participants do not need to invest in their own kit.’ (p.27) ‘Young people are constantly involved in designing the programme of activities they take part in and as a result of this consultation the project has been extended to a girls only ‘Open All Hours’ which offers girls only swimming on Saturday afternoons. The sessions are fully staffed by female instructors and the girls have a big influence on the programming of activities. Weekly attendance figures of approximately 40 girls, including approximately ten from BME communities make this project a model of good practice.’ (p.28)
‘Single sex groups for physical activity are encouraged as far as possible in the Middle School’ (p.31) ‘Girls football clubs have been set up in five schools and mixed clubs in a further two schools.’ (p.31) Black and Minority Ethnic Swimming for Girls ‘offers black and minority ethnic girls aged 9-18 the opportunity to participate in a swimming programme specifically designed to meet their needs, in a safe and friendly environment; for many this is their first chance to swim.’ ‘The group also caters for black and minority ethnic girls with special needs and carers are available to assist outside the pool, as well as a specially trained coach in the water.’ (p.35)

In conclusion this report outlines the following ‘Principles of Equitable Practice’:

‘Girls and women need an opportunity to participate in physical activity in their own ways. The presence of males, as staff or participants, changes how girls and women participate and therefore alters their experience.’ (p.43) ‘Single-sex provision of sporting opportunities is needed and called for by many women and girls and should be provided in the right circumstances and with regard to relevant legislation.’ (p.43)

WPUK’s evidence to the Scottish Government urges policy to embed these principles in sport provision for girls and women.

5. The importance of girls’ and women’s voices

5.1. The participation rates in different sport and physical activities in Scotland varies significantly by sex (25). More women than men participate in walking, dance, keep fit/aerobics and swimming. For all other sport and physical activities, particularly in traditional competitive sports including golf, football and bowls, men significantly outnumber women.

5.2. If girls are asked, they choose very different sports and physical activities to boys. Sport Wales collects extensive data which shows latent demand and club sport preferences for girls and boys. Girls want more swimming, netball, trampolining, dance and running, whereas boys want more football, rugby, tennis and basketball. The PE Curriculum and extracurricular sport more closely caters for boys rather than girls. When asked, girls want more choice, less focus on competition and winning, and more focus on enjoyment (26).

5.3. When women are asked, they choose single-sex rather than mixed sex toilets and changing rooms. Primarily for privacy and dignity reasons (27). Further, women do not agree with transgender inclusion in opposite sex sport, toilets or changing rooms via gender identity (28). WPUK’s evidence to the Scottish Government can not over state this

5.4. There were no female sports participants, athletes, academic or legal experts invited to give evidence to the Scottish Committee for Gender Recognition Reform session on sport (29), (30). As a consequence the Committee were misinformed by, Malcolm Dingwall-Smith, Strategic Partnerships Manager at Sportscotland, and Hugh Torrance of LEAP, a trans advocacy group. Both men told the Committee that the proposed reforms of the Gender Recognition Act do not impact significantly on sport. However, two British female Olympians and academic experts offered to give evidence to the contrary but this was declined (31). 

6. The importance of equal sport and physical activity provision on the basis of sex

6.1. WPUK’s evidence to the Scottish Government highlights that Public Sector organisations including Sport Scotland and Scottish local authorities are subject to the 2010 Equality Act and the Public Sector Equality Duty and must eliminate discrimination, advance equality of opportunity and foster good relations with respect to nine characteristics, including the separately protected characteristics of ‘sex’, and ‘gender reassignment’ (32). Note that neither gender or gender identity are protected characteristics, and ensuring compliance with the law, means ‘sex’ and ‘gender reassignment’ should not be conflated as ‘gender’.

6.2. Biological sex is so important in sport and physical activity that the Equality Act contains the dedicated Section 195 on sex and sport (33). This permits exclusion of males with the protected characteristic of gender reassignment from female sport and physical activities in sex affected sports even with a Gender Recognition Certificate and change of legal sex. This upholds fairness, safety and equal opportunities for females. It ensures females with the protected characteristic of sex are included in sport and physical activity on an equal basis with males. Local authority investment and/or provision which includes biological males in female sport via gender identity, may therefore be indirectly discriminating against females
and contravening the Equality Act. Importantly, the Public Sector Equality Duty cannot be delegated to, for example, governing bodies of sport.

6.3. The Sports Council Equality Group Guidance for Transgender Inclusion (34) sets out 10 guiding principles including the following:

‘Categorisation within the sex binary is and remains the most useful and functional division.’
‘Competitive fairness cannot be reconciled with self-identification into the female category in gender-affected sport.’
‘Categorisation by sex is lawful, and…the requirement to request information relating to birth sex is appropriate.’
‘Achieving inclusion across all the strands of the Equality Act is complex and nuanced.’

WPUK’s evidence to the Scottish Government therefor emphasises that local authority Equality Diversity and Inclusion policies must not privilege one protected characteristic (e.g. ‘gender reassignment’) over all the others (e.g. ‘sex’, or ‘religion or belief’).

6.4 It is sometimes argued that although inclusion in female sport via gender identity is unfair and unsafe in elite sport, it is not a problem at participation levels. However, because both competitive sport, and those identifying as transgender, are disproportionately male, this impacts asymmetrically on female sport 35 . A small proportion of a large group transitioning into a much smaller group makes a disproportionately large impact. So, 10% of female football participants could be male, whereas only 0.1% of male footballers would be female. Further, transmen and female non-binary players tend to remain in female sport where they are not disadvantaged by male performance advantage.

6.5 Sport and physical activity funding

Disappointingly, for adults, the preferences of males are disproportionately funded by the Sports Councils. Women want to swim, and men want to play football, although as they get older, competitive team games become less popular with men as well. WPUK’s evidence to the Scottish Government highlights that disproportionate provision of competitive team games exclude female sport and physical activity participants (36).

7. The importance of compliance with the 2010 Equality Act on the part of public bodies including local authorities and the Scottish Sports Council.

7.1. Most sports participation is not governed by the eligibility criteria of sport governing bodies but takes place in informal and voluntary settings such as schools, universities, local authority sport and fitness centres and health centres. Consequently, equal opportunities for female participants are upheld by way of the protected characteristic of sex as outlined in the 2010 Equality Act and the ability of these organisations to implement Section 195 of the Act. If the proposed GRR (Scotland) Bill is passed, this will increase the number and diversity of the population of people who have changed legal sex and will make upholding
single-sex sport provision extremely difficult to do. This is because, “whether an individual has a GRC may be a factor in the decision taken by a service
provider”, in relation to accessing single sex services (it) makes it easier for GRC holders to challenge their exclusion from single-sex spaces and services.’

‘The meaning of the law on the exceptions is contested and service providers are already hesitant to use them. There is a serious risk that a very large increase in GRC holders will make providers even more reluctant to do so, for fear of facing legal action.’ ‘This fear will be exacerbated by strict privacy provisions that make it a criminal offence to disclose that a person has a GRC, if that knowledge is acquired in an official capacity.’ ‘providers and other users will become more unwilling to challenge the presence of any male person asserting their right to be in a woman-only space’ (37).

7.2. WPUK’s evidence to the Scottish Government is that the Scottish Government and Sport Scotland cannot outsource compliance with the Equality Act Section 195 and the proposed GRR (Scotland) Bill to governing bodies of sport. The Scottish Government and Sport Scotland have a legal duty to ensure the investment decisions they make comply with the law and do not indirectly discriminate against females. Further, if governing bodies of sport are carrying out public functions on behalf of the Scottish Government and Sport Scotland, they are also subject to the legislation and must avoid indirect discrimination against females (38).

7.3. Conflating sex and gender.
The term ‘gender’ has historically been used inaccurately as a synonym for sex and
therefore referred to biological sex. (39), (40).  However the term ‘gender’ is now often used as shorthand for ‘gender identity’ or ‘gender reassignment’ neither of which refer to biological sex. As consequence the terms ‘sex’ and ‘gender’ must now be disaggregated in order to accurately reflect both the reality of biological sex and the law in policy documentation.

7.4. Further, the separately protected characteristics of ‘sex’ and ‘gender reassignment’ should not be conflated. This is particularly important for sport policy which aims to increase the participation of females, given single sex sport and physical activities in sex-affected sports and physical activities are essential for the equal inclusion of girls and women. Conflating ‘sex’ and ‘gender reassignment’ in policy documentation will make the enforcement of Section 195 of the Equality Act impossible.

7.5. Testosterone suppression in males only minimally affected puberty-related male advantage (41), (42). So, males who identify as transgender carry legacy male advantage into female sport and physical activity, whereas females who identify as transgender carry legacy female disadvantage into male sport and physical activity and so tend to remain in female categories. Therefore, permitting participation in sport via self-identification of gender from the beginning of puberty upwards will further impact upon attempts to attract girls and young women into sport and retain them once they are there. It is likely that for fairness and safety reasons, girls will self-exclude or their parents will withdraw their daughters, and that female athletes will self-exclude, from sports and physical activities that permit inclusion in opposite sex categories by way of self-identification of gender.

7.6. Girls and women are significantly under-represented in sport, but unfortunately the Scottish Household Survey no longer disaggregates sex and gender so that participation rates of the differently protected characteristics of ‘sex’ and ‘gender reassignment’ cannot now be accurately tracked. This will affect the ability to demonstrate compliance with the Equality Act and the monitoring of the implementation of the proposed GRR (Scotland) Bill. The Scottish Household Survey data for 2014 shows much lower levels of female participation in football (7%) and golf (15%). However, given the shift to a gender identity question in 2018, it is no longer possible to ascertain the extent to which participation by sex has changed (43).

7.7. WPUK’s evidence to the Scottish Government highlights the asymmetric impact of self-ID on women and girls single-sex sport categories and there is little evidence of any meaningful equality impact assessments have been undertaken. Female sport categories are those primarily impacted and yet girls and women are already significantly under-represented (44). The effect of expanding the numbers and diversity of the population eligible for GRCs with associated Section 22 provision, will impact on service providers (sport and fitness centres) offering single-sex (Section 195 of the Equality Act) services. (45). The prevalence data for those who have undergone some form of medical transition as compared with those who self-identify shows a significant difference so that, ‘Whereas in most studies estimating the prevalence of surgical or hormonal gender affirmation therapy or transgender-related diagnoses, the prevalence estimates generally ranged between 1 and 30 per 100,000 individuals, self-reported transgender identity was orders of magnitude higher ranging from 100 to 700 per 100,000 or 0.1%-0.7%.’ (46). Inclusion in opposite-sex sport and physical activity, toilets and changing rooms, via gender identity, rather than biological sex, indirectly discriminates against female participants.

8. What issues, if any, affect women and girls taking part in elite sport? How might these challenges be overcome?

Some of the issues outlined above also affect girls and women’s participation in high-performance and elite sport. A full discussion of these issues is beyond the scope of this submission; however, structural barriers include:

8.1. Lack of recognition of biological sex and associated performance gap between males and females from puberty onwards in sex-affected sports and physical activities.

8.2. Eligibility via gender identity rather than biological sex in sex-affected sports, particularly lower down the performance pathway.

8.3. Lack of meaningful consultation with female athletes regarding transgender inclusion guidelines.

8.4. Non-compliance with the 2010 Equality Act on the part of public bodies including governing bodies of sport, the Scottish Sports Council and UK Sport, which frequently conflate the independently protected characteristics of ‘sex’ and ‘gender reassignment’ as the non-legally protected term ‘gender’.

8.5. Disproportionate funding of male sport.

8.6. Emotional and sexual harassment and abuse in sport primarily affecting female participants and athletes (47).

9. The importance of biological sex.

9.1. There is settled scientific consensus that, as a consequence of human sexual dimorphism resulting in androgenisation of males at puberty, there is a significant male performance advantage in most sports. This is detailed in a wealth of scientific literature including, Handelsman, 2017 (48); Harper et al., 2021 (49); Hilton and Lundberg, 2021 (50); Knox et al., 2019 (51) and Thibault et al., 2010 (52).

9.2. As a consequence, national and international governing bodies of sex-affected sports achieve inclusion for female athletes via dedicated female sport categories. Eligibility for opposite-sex sport via gender identity asymmetrically benefits transwomen and male non-binary athletes who bring male performance advantage into female categories. Conversely, transmen and female non-binary athletes would bring female performance disadvantage into male categories and so remain in female categories in order to retain a competitive career.

9.3. Scottish governing bodies of sex-affected sports which ignore Section 195 of the Equality Act and adopt inclusion policies which permit eligibility for opposite sex categories via gender identity, are indirectly discriminating against Scottish female athletes on the basis of sex. This will inevitably deprive them of competitive opportunities, podium places, sponsorship and earning capacity.

10. Female athletes’ voices

10.1. Female elite athletes’ voices are rarely heard however, one peer reviewed research paper details the views of 19 female Olympians regarding the inclusion of transwomen with retained male advantage in female sport. Research with female Olympic athletes which includes a Scottish Olympian, finds that they feel silenced by being called bigoted and transphobic (53). As a consequence, the fundamental right to freedom of expression is compromised.

10.2. There is now much more evidence of female athletes views which overwhelming shows they are opposed to the participation of transwomen in female high performance sport categories in sex affected sports.(54), (55), (56), (57), (58) The World Rugby elite female survey found only a minority supported the 2015 IOC guidelines. FINA found 84% thought eligibility for women’s events should be based on birth sex. British Triathlon found over 80% of 3167 members favoured a dedicated female category. Rugby Football Union (England) received 11,000 responses and now operate dedicated female categories. The Cyclistes Professionnels Associés (CPA) survey found over 92% of female professional cyclists did not agree with transwomen cyclists competing in female categories.

10.3. Scottish governing bodies of sex-affected sports which do not consult with their female athletes and/or prevent them from expressing their views on sex and gender by framing them as ‘transphobic’ or ‘bigoted’ are contravening the fundamental human right to freedom of expression. It is well documented that female athletes feel silenced in this area of policy and so consultation must be directly with the athletes themselves, anonymous and conducted by a trusted party.

11. What additional issues, if any, affect women and girls from marginalised groups taking part in sport or physical activity? How might these challenges be overcome? Do female participants from marginalised groups, such as those with disabilities, those from minority ethnic backgrounds or members of the LGBTQ+ community, face additional challenges to participation?

11.1. Female participants and elite athletes from marginalised groups including those with disabilities, those from minority ethnic backgrounds, lesbians, transmen and females who identify as non-binary are all impacted by policies which permit inclusion in opposite categories by way of gender identity, because they are all female. In addition, the inclusion of girls and women from some minority ethnic and religious backgrounds requires single-sex sport settings and facilities (59).

 

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