Thread by @tribunaltweets

We will shortly be live tweeting the first session of a 5 day case brought by Harriet Haynes, a male pool player who claims a female identity, against the English Blackball Pool Federation (EBPF) of alleged discrimination on the grounds of gender reassignment.

The EBPF is run by volunteers and organises county-level competitions in England. In August 2023 the EBPF announced the competitions formerly known as the Ladies’ and Men’s Tours would be replaced with a Female Tour and an Open Tour, and that only women would be eligible to

compete in the Female Tour.

We anticipate an 11am start. We do not provide a transcript of hearings but endeavour to report all we hear accurately and do so in good faith.

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Abbreviations:
J - His Honour Judge Parker
P - tribunal Panel member
HH - Harriet Haynes, claimant or C
RW - Robin White, claimant’s barrister
CC - Colman Coyle, claimant's solicitor
EBPF or F - English Blackball Pool Federation
PT - Paul Thomson, defendant or D1

AG - Anna Goodwin, defendant or D2
SC - Sarah Crowther KC, defendants’ barrister
SS - Sapandeep Singh Maini-Thompson, defendants’ barrister
JRL - JR Levins LLP, defendants’ solicitor

We have joined the remote hearing but have no picture or sound yet.

J Had already started...discussing breaks.
[Clerk giving court instructions including for remote access]
J Miss White, any housekeeping?
RW I assume u have all the bundles, we can check [listing and checking: witness, experts, technical, supplementary of Ds, emails from solic

J Bundle of authorities from RW
RW [Discussing printing of bundles]
J Thank you, that wld be helpful
RW You won't need to delve into authorities at this stage
SC There are already a few things to add
J Timetable - I have a nose
RW It's attached to the order

J Let me have a look
SC Let me send it to you now.
RW We think it works, and shld be done by Fri
J Let me see the draft order
SC Apologies for not sending
RW The only disagreement was what u didnt decide
J That shldnt delay. we only have time for you two and hearing from C

J It may be hard with screens but we havent had problems so far
SC I have emailed it to you
J Miss White?
RW We have 1 further doc. U had allowed one further doc we discussed w Prof Formaggio which might be helpful to make this note of discussion into a state to submit to my

friend. We'd hope to have it w u soon before the approp expert.
RW Opening remarks support and extend the written openers we've exchanged. I'm not changing the skeleton y've received. It's an unusual case as poten new legal territory. Sec 125 has not been litigated against.

RW The meaning of necessary, has meant looking at diff cases - heading out into the prairie. I'm aware of following cases in different sports so there will likely be more litigation. Sport is important in the UK. If thinking of a memorable event in 20th century, and 1966

RW wld stick in the UK's mind
J Well England
RW Shows how important sport is to the UK. At all levels up to profession and elite, and to supporters. Fairness is discussed alot, which is somewhat a moveable feast. Sports ppl are often unusaul eg don't see x, y. So is an element

of selection. Many sports are gender selected. Tennis - wld be easy to make a case is gender selective due to fast serve. Ave men have a strength advantage over W. So difficult to argue my case in tennis. In chess, which isnt uncontroversial, as world chess decided TW cldnt play

in womens chess, and UK chess have decided the opposite. wld be hard to argue chess is gender affected at per EA. Sports will be either side of boundary and I'll argue it's on 1 side. I wont argue re snooker which I'd argue on wrong side of boundary.

RW But this is pool. Historic facts re pool that relevant. Is called pool but etymology is uncertain. Possibly C14th French from word for chicken or later where ppl paid into a pool. In Virginia in 1797, and later in US in C19th after which it moved to the UK and changed

RW Sizes of tables changed over time, which might affect expert evidence. How we get to the current circs. Fairness is often thought to be essential, for playing and betting. This case is brought by a TG person. There's a legis history of including them in the UK. PVS case in

90s which went to Europe and 99 protection brought in for TG ppl. The GRA was brought in 2004 which had provisions for sport, which moved into the EA - laegely a consolidation act w 5 signif statutes that give us the 9 PCs. It's largely been unaltered. Had 18 months legis time

RW It made some alterations as well as being consolidatory, eg in disab re MH. Re TG ppl it altered 1999 requirement to be under med supervision (removed) and made it easier to come under GR - which C clearly does. Under GR have an absolute right. Balances religion and TG ppl

eg not having a TG priest. Also is a balnce in sport betwn absolute right to take part after collecting the PC. Wherther those rights are properly expressed in s195, is debated, but we have to work w this in this court. Some may say is too restrictive, and some say needs less,

but we have to work w it as it is. Look at the expert bundle, and unless researchers have found more evid we only have the statute. The experts have put this front and centre of their reports, which is good. In subsection 3 [reading out re sport or activity of a competitve nature

in which physical strength, stamina or physique is relevant. In chess think of strategy, which isnt physical strength involved here. No stamina needed for 1-2 hrs and only moving pieces on the board. Some suggestion M and W differ in visuospatial abilities. But I cant see that

comes w/in stamina, strength or physique. The legisaltors have looked at ave persons, and sports tend not to be ave persons. Which takes us to expert evidence and how far can read from actions of experts to ave persons. The EA uses S and G rel interchangeably, and unclear what

they mean w/in the act. Scot inner house has said is context specific. Strength etc appears to be related to biology in this part of test. So average person off the street and imagine them as a competitor. That's the defn of gender related activity.

Subsection 2 re GR, relates to partic of a TS person. Transexual isnt the approp word today as uses sex which has diff connotations today. I'm always talking about GR rather than sex. We'll come back to the word necessary. It's a pretty strong word, related to fairness or safety

RW This isnt a safety case in pool but the Rs used the word safety, which they then removed in their statement. We're not arguing re golf, but there have been args re golf. Imagine if they were discussing golf - driving for several shots to green and driving stages are clearly

gender affected. But putting is accuracy and judgement on the green and u cld imagine the putting isnt gender affected. Assume my eg - what wld be necessary to make fair competition? Wld it be necessary to exclude TW golfers to ensure fairness? I'd say not. U cld look at driving

stage and have a forward tee, rather than have to exclude. This is permitted discrimination, where balancing rights eg TG priest was a binary decision. Justif of discrim has to show wasnt a lesser form of discrim. Subsection 1 of act shldnt trouble us. I know MLF talks about

being a different sex. The ICR report I'll deliver tmrw. the Hewitt report is useful that looks over the guidance and repeats from an earlier case. a comparitor where not materially different is superfic attractive but wrong. Bio men wld not gen be playing in th F - only TW. So

I will reject this. As it relates to TG, rather than sex, and the world of bio men wont be playing in the F. The tennis chess continuum..I'll give you another continuum of sizes of pool tables. One can imagine incr the size, and Ironman contests and they make activities heavier.

RW Imagine changing to heavy balls on a football pitch size table. Also child's size pool table - wldnt however be a gender affected activity. If I'm right about that, there is somewhere betwn those 2 extremes, sliding on a scale, where activity stops being gender affected.

Where does that come? That'll be the decision u have to make here? The other principles are normal. Appalling way it happened in 2023. The coord between the IPA and EPPF and way decision taken and whether members cld engage w the decision. And materials used to make decision.

RW Y'll have dealt w unfair dismissal cases, where deal w what info known at the time. This is different, and the F made 2023 decision to exclude TW and hadnt sought scientific evid and talk about their belief. They cld be right or wrong at the time. U can make a different

decision to them. Why didnt they follow a fair process and ask ppl if they dont have -ve animus against the C? the F largely runs amateur events, and they to some extent exclude professionals from some aspects of paly. is an unruly rule the way it's written. Ppl can rule at whim

I'm saying it discriminatory. When we look at timing and disputes that it's been used as a cover for the discrim that's happened. The C starts evidence this pm, and then hear from mgmt and then experts in pairs. It's worth thinking re burden. The Ds seek to rely and bear burden

of proof for section 125. Let me check I've said all I need to. I have.
SC I have 7 categories I will discuss [lists]
SC 1st in inclusion and fairness - be clear is no part to undermine C case to live as per her GI. Wld be great to include but is need to categorise in sport as

essence of fair competiton. It's not a moveable feast as per RW. It's esential. Doping removes fairness. Its a precious concept in sport. Every competitor must have firness, so ppl are categorised in sport via age, Masters, M & F. All trying to group competitors for fairness for

body characteristcis. Also look at sport has developed since C19th that's overwhlmingly favoured men. Most sports test men - explosive power, size and strength. V few sports test F charcacs, eg coordination and flexibility. All sports RW mentioned apart from chess are predom M

Women have fought for inclusion, and typically made F sports based upon sex and not gender. The protected Ws events allows physcial activity and the inclusion of male bodies prevents F playing. They wld lacj develop pathway into sport and give up. fair access to competiton

prevents discrim aganst W. W often accused of bigotry if stand up. Many sports have T inclusion policies which essentially saying W wont have a sex based category. Just a few M added makes that sport mixed sex and a loss of SS provioson. Sport has always had SS category

Inclusion can be achieved but not by including M into F. Add an open category. Sex characteristcs are bio, and is difference betwn legal and bio sex. MLF wont agree w this terminology. Important to understand even in legal sphere the terminology isnt clear between S&G. Ppl dont

like using word sex but we have to here. The terms are used interchangeably and makes discourse difficult. It's not meant to be disrespectful to use sex but trying to debate issues. 3rd is eligibility rule [finding bundle] EBPF announcement. [reads re fairness and transparency

in ladies pool. Clear is about fairness. Is complaint re timing but not sure if approved. [reads more v v fast] incl level playing field. YH can see the purpose and reasons given, which later discussed at mtg 1st Oct. We have the minutes of this [finds page] Under AOB D2 discusse

changing. The evid is clear this was changed to bio F and an open category (A,B and C). Only bio F in F category for fairness and inclusion. Agreed by all delegates except 1. This was the decision and how communicated. This case isnt about motives or reasons why. Discrim cases

SC often need reasons (eg race). Clearly set out reasons in the evidence. Challenge is to categorise the decision. Is the discrim on grounds of sex or GR? [looking in bundle] Look at good summary of law in relation to categorisation discrim and the reasons why.

SC [reads from para 32, basic Q is what are the grounds the complaint is about? No difference betwn formulations, language used in victimisation cases. Can be inherent in the act itself eg James and ? borough council. [reading case details v quickly]

SC [was Eastleigh BC re access to leisure centre and favourability betwn M and W] This is another case where other motives at work. Tribunals can build inferences from the case. We both refer to these cases in our skeletons.

SC Distinctions are subtle but they are real. L Goth recog distinctions betwn cases - sex based in one but other where motivation was an animus against a persons case
J That's not my understanding of RWs case. Introd was animus in how it was introduced
RW I was moving from a

characterisation case
SC I thought was hiding from using animus
J Is a rejoinder to the animus rule I believe
RW Yes. I didnt want Q of Miss Goodwin, it may not matter what happened around decision. But think has relevance
SC Grateful for clarification. Make the point

SC In James v EBC, re direct discrim: [reads v fast about criteria and mental processes used] All that matters is proscribed factor was on his mind. Isnt a negligence and Book 4 test. So we're looking at motives.
J I havent grasped para 37. U might need to go over again?

SC Reads para 32-7 again but I cld submit on this. Burden of proof isnt needed here. If the C can prove facts re race case, the shift moves to proving it want about race. But we dont need to get there as grounds were wanting a F category. Is category on S or GR.

SC Glad that we both agree on that [means RW]. The decision shld be categorised in law. No judges have ever looked at this before as far as we can find. Section 195.1 [reads quickly] 1st Q is "what is relating to sex?" Seperate exception relates to GR. So is discrim related to

sex a in one and GR in another. We say are 2 categories, F and open w ref to sex, so say is sex that's relevant to 195. Defn of woman is biological in the EA. Our skeleton arg says the relevant analysis, sites Lord Nicholson in Ahmed decision - in para 54 we say u have to be

careful in discrim cases and factual matrix. Martin and Devonshires case was re a protected disclosure and whistleblowing, where said they said was another reason for disciplinary action [reads from case] As a factfinder uhave to think what acts are related to a PC and which not

Y'd normally find a comparitor, real or hypothetical, and ensure material facts of comparitor are the same. There must be no material diff betwn C and comparitor. the C says she is F. We say the correct comparitor is of a male, regardless of GR. That male wld be treated the same

The rule attaches to a woman who has GR as a PC. It's how the rule operates. Another point is GRCs. The C has one, but not all w GR have a GRC. Indeed GR is wider than those w GRCs necessarily. Thiose are submissions on direct discrim. Drafting of s195 - the correct sub para

is 195.1 Born F relates to sex so is that exception which applies. When does 195.2 ever arise then? Wld be engaged where a sep category for TG ppl. If an org decided male born and F born and ppl w GR, then 195.2 wld be engaged. If self Id was chosen as a category then 195.2

engaged. To see whether was permitted.
J So decides for 3 categories? Isnt that the same? Either ref to GRC or self ID?
SC Exactly. Is pool relevant category, and is our interpretation of this provision. It's a cohort analysis. Parliament has chosen comparitors of persons of

the other sex. This has to be bio and not legal sex. This test doesnt engage randoms off the street. Look at ppl in events taking part in activity. Nothing says about ppl off the street who pick up pool cue for 1st time in lives. YH may note the same words in subsec 8

SC Other points re 195: 195.2 talks about TS ppl. The interpretation includes the singular and plural and vice versa. Shlsnt look at indiv assessment of any partic TS person. The purpsoe of assment is necessary for fair competition. wld be difficult for court to determine on an

individual. With reference to what evidence? The cohort comparison re whatever is necess for fair competition. I'm sure we'll necess alot this week. RW says Testosterone sippression is enough. We say is evidential burdern re 195.2 re +ve arg re Testo suppression. Does hormone

therapy do enough in this case. Two other args re 195.2: proceedural complaint similar to JR. Short answer is nothing in statute re proceedural fairness
J Nothing in RWs case here
SC I understood RWs case to be whether a fair process?
J Goes back to animus position?
RW Y, YH

SC We say all ppl ahve protected Ws categories historically. Sizes of table are distinctions w/out a difference. The Rs have treated the sport since 2016 for gender affection. The EPA, not connected to the R, also states is a gender affected sport. Ranking document makes it

plain W are at a disadvantage, at least inpart from stamina, strength and phy. Doesnt have to be all of disadvantage nor the amount of disadv. You have to be satisfied there is a disadv. It's a binary decision.
RW [speak in Latin] The court doesnt consider triffles

We said strength etc does have an impact and we'll show evid for this. Sec 26-7 relate to sex discrim. The gateway depends on yr decision re discrim on basis of sex or GR. Separate services for a legit aim. Joint service wld be less effective and proportionate for a legit aim

SC If it's proportionate for a legit aim, u can provide a service to only 1 sex. [reading fast] Sec 28 on GR discrim: proportionate is legit to provide different services to both sexes. Whatever the PS, S and P - it doesnt apply to section 3. We set out the law wrt propotionalit

SC That's all my opening. I'm conscious of time and will be another 5 mins. The professional rule: county rules of 2019/20 season [bundle search] Section 8 is the relevant section re player restrictions. On p70 and rule 65 [reads re playing professionally in past 3 seasons]

In para 12 of skeleton, IPA only has M professionals and no F IPA category. The UPG didnt exist then as it only began in 2020. Over time, re player restrictions and rule 54. Date confusion re seasons overlapping which doesnt help us.

SC The rule is there again, and in 23/24 season at rule 53 we see rule has altered about only playing in A team and previous 2 yrs playing professionally. And limiting professionals playing. On p517,
J It isnt a rule?
SC Yes, is an advert for 2020 ladies tour.

[finding pages]
SC p517: can see describes as an amateur event
RW Draw attention to text at bottom
SC D's position is this tour and subcategory tours are all amateur events. The open tour is open to all, as it says. At 116 of doc bundle is a FB page from Dec 21

re a 22 competition [reading fast] Again at 288 is a document re Open tour: again Mr Elmhearst put on FB and was never a profess rule about these events. That's my reading of the advert. Must be 9th Aug post re event on Saturday. Those are the relevant docs and my submission

J I'm content to start at 2pm unless either of you want any longer? Ok, I'll see you at 2pm.

Court adjourns

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