Sporting bodies ‘really struggling’ with questions on trans player involvement, Tánaiste says

Legal body says exclusion of transgender people from games may amount to ‘unlawful discrimination’ under equality laws

Sporting organisations in Ireland and elsewhere are “really struggling” with questions around the involvement of trans people in competitive games, Tánaiste Leo Varadkar has said.

The IRFU announced on Wednesday that it would not allow transgender women to compete in adult contact women’s games in the upcoming season. It said that two registered players would be affected by its decision, which was taken “in order to ensure fair competition and the safety of competitors”.

The move was immediately criticised by LGBT+ advocacy groups for setting what could be “a dangerous precedent”. Several other sporting authorities are in the process of reviewing policies around participation by trans athletes.

The Free Legal Advice Centres (Flac) on Thursday said it had “serious concerns” about the IRFU’s approach, which may “give rise to instances of exclusion from the sport” and could “amount to unlawful discrimination contrary to the Equal Status Acts 2000-2018″.

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Speaking in Roscommon Town on Thursday, Mr Varadkar said sporting bodies in Ireland and elsewhere were “really struggling” with questions around the involvement of trans people in competitive sport and should “listen to those most affected” by the move.

“I think it is very important that the IRFU and World Rugby and anybody that’s making decisions on this, listen to the voice of those who are most affected,” Mr Varadkar said. “Of course, those who are potentially most affected here are those that may be excluded from playing sports ... I think it’s very important that their voice is heard.”

The IRFU said the move was in line with similar rulings made by World Rugby and England’s Rugby Football Union.

“Recent peer reviewed research provides evidence that there are physical differences between those people whose sex was assigned as male and those as female at birth, and advantages in strength, stamina and physique brought about by male puberty are significant and retained even after testosterone suppression,” it added.

The policy means that contact rugby for players in the female category will be limited to those whose sex was recorded female at birth. In the male category, players whose sex is recorded at birth as female may continue to play if they provide written consent and a risk assessment is carried out.

‘Damaging’

Trans Equality Together, a coalition of 20 organisations campaigning for trans rights, described the change as “damaging”. Sinéad Lucey, managing solicitor at Flac, a member of the coalition, said the IRFU is “subject to the Equal Status Acts which prohibit discrimination — including differences in treatment on the basis that someone is transgender”.

“As a result, the exclusion of individuals from the sport on the basis of the new policy may give rise to discrimination complaints under the Equal Status Acts,” she said.

“While the Equal Status Acts allows for different treatment on the basis of gender in the context of sporting events, this exception only applies where the treatment can be shown to be reasonably necessary in the context of a given event. The exception, therefore, does not appear to permit a blanket policy of this kind which, by its nature, excludes an event-specific decision in relation to the participation of a trans person.”

Ms Lucey said the IRFU was in receipt of “significant financial support from the State” and that it was imperative that the Government and relevant Ministers take all measures necessary to ensure that such organisations comply with equality law and uphold the human rights and dignity of all those involved in their activities”.

Before the IRFU’s decision, several other sporting bodies were also reviewing their own policies around transgender participation in their sports.

A spokesman for the Football Association of Ireland (FAI) said it was “currently reviewing our gender eligibility policy and will consult all relevant stakeholders including UEFA and FIFA”.

Similarly, Basketball Ireland said it was “in the process of reviewing and updating our policies on trans athlete participation”.

A spokesman for the GAA said it was examining the matter through a transgender working group, but no policy had yet been finalised by the group. The Ladies’ Gaelic Football Association (LGFA) similarly said it was “developing policy in this area” in consultation with the GAA and other sporting organisations.

Jack Power

Jack Power

Jack Power is a reporter with The Irish Times