“(1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.”
“(1) On a comparison of cases for the purposes of section 13, 14, 19 or 19A there must be no material difference between the circumstances relating to each case.”
“(1) A person does not contravene this Act, so far as relating to sex, only by doing anything in relation to the participation of another as a competitor in a gender-affected activity. (2) A person does not contravene section 29, 33, 34 or 35, so far as relating to gender reassignment, only by doing anything in relation to the participation of a transsexual person as a competitor in a gender-affected activity if it is necessary to do so to secure in relation to the activity— (a). fair competition, or (b). the safety of competitors. (3) A gender-affected activity is a sport, game or other activity of a competitive nature in circumstances in which the physical strength, stamina or physique of average persons of one sex would put them at a disadvantage compared to average persons of the other sex as competitors in events involving the activity. (4) In considering whether a sport, game or other activity is gender-affected in relation to children it is appropriate to take account of the age and stage of development of children who are likely to be competitors.”
“28 Gender reassignment (1) A person does not contravene section 29, so far as relating to gender reassignment discrimination, only because of anything done in relation to a matter within sub-paragraph (2) if the conduct in question is a proportionate means of achieving a legitimate aim. (2). The matters are— (a). the provision of separate services for persons of each sex; (b). the provision of separate services differently for persons of each sex; (c). the provision of a service only to persons of one sex.”
“264. For all these reasons, this examination of the language of the EA 2010, its context and purpose, demonstrate that the words “sex”, “woman” and “man” in sections 11 and 212(1) mean (and were always intended to mean) biological sex, biological woman and biological man. These and the other provisions to which we have referred cannot properly be interpreted as also extending to include certificated sex without rendering them incoherent and unworkable. In other words, in relation to sex discrimination (for the purposes of sections 11 and 212(1)), a person with the protected characteristic of sex has the characteristic of their biological sex only: a trans man with a GRC (a biological female but legally male for those purposes to which section 9(1) of the GRA 2004 applies) is a woman for the purposes of section 11 and a trans woman with a GRC (biologically male but legally female for those purposes to which section 9(1) applies), is a man and not entitled to be treated as a woman under the EA 2010. This conclusion does not remove or diminish the important protections available under the EA 2010 for trans people with a GRC as we have explained. To the contrary, this potentially vulnerable group remains protected in the ways we have described. In these circumstances, and notwithstanding that there is no express provision in the EA 2010 addressing the effect which section 9(1) of the GRA 2004 has on the definition of “sex”, we are satisfied that the EA 2010 does make provision within the meaning of section 9(3) that disapplies the rule in section 9(1) of the GRA 2004.” 67 The effect of that paragraph was summarized at [265](xviii): “(xviii) We therefore conclude that the provisions of the EA 2010 which we have discussed are provisions to which section 9(3) of the GRA 2004 applies. The meaning of the terms “sex”, “man” and “woman” in the EA 2010 is biological and not certificated sex. Any other interpretation would render the EA 2010 incoherent and impracticable to operate (para 264).”
“The break shot is very important and even small differences in break shot effectiveness can have a big impact on match outcomes” and “Break speed, beyond a certain threshold, does not result in a better ball spread with a square (solid) hit on the head ball of a tight rack (with all balls touching).”
“Men generally have more strength and faster-twitch muscles that make it easier to execute power shots.” 181 He added that the break shot was not the only “power shot” involved in pool. There were other points in game where shots requiring significant cue speed can be needed. 182 As to the relationship between strength and making successful shots, Dr Alciatore’s opinion was “if you can generate more cue speed with less effort… you will generally be more accurate and have better control and consistency.”
“Upper body muscle mass differentials exceed 50%. Strength differences range from 60% in the biceps to 90% in the shoulders, synergised by longer skeletal levers. Male shoulder velocity – the speed of shoulder movement, relevant for propelling objects – is 15% faster than in females. Males have over 40% more muscle mass in the lower body, enabling at least 50% greater strength in the quadriceps.” 196 Dr Hamilton did not dispute what was said about these differences in absolute strength, but commented in the joint statement that “when controlled for exercise levels and body weight, muscle mass and quality between sexes are equivalent”
“compared with females, males have greater absolute metrics that are capable of higher absolute outputs. These are, in part, because males are larger than females, but this is precisely the type of sex difference that female categories seek to exclude.”
“upper and lower body strength [allow]… players to more precisely stabilise and manage their power application” – that is, the ability to execute power shots while maintaining precision. She referred in this regard to the need for “controlled power”. 199 Rather than engaging directly with the relevance of strength, Dr Hamilton’s responses in the joint statement emphasized that there were many other relevant factors: “the ability to execute power and controlled shots effectively is far more dependent on skill, precision, and practice than on raw physical attributes”; “table clearance and winning the frame are likely influenced by multiple factors and cannot be predicted by the break shot characteristics alone”; “players invest years in perfecting their techniques, such as grip, stance, and follow-through, which are critical for executing power and controlled shots”; “the power draw (screw shot) relies more on the precise striking of the cue ball and the quality of cue control than on brute strength”; “players with superior technique can offset any potential strength disadvantage through enhanced precision.”
“At least one pool federation – the International Heyball Pool Association – applies handicap rules to female players in mixed sex matches, in recognition of superior male breaking capacity. Specifically, females are not required to achieve the same scatter of object balls as males, and male players must concede either the first or last object ball to female opponents” 227 Dr Hilton was cross examined about the possibility of a handicap system in English eight-ball pool. She was unable to add much to her written evidence. She accepted that in principle it would be possible to compensate for an identified difference by way of a handicap. This was not a point that was explored with any of the other lay or expert witnesses. Assessment of the expert evidence Professor Formaggio and Dr Alciatore 228 The physics/engineering experts gave their evidence in a balanced and non-combative way. Both have very substantial expertise in their academic field. Both engaged thoughtfully with all questions put to them. They were willing to shift from the positions they had originally taken in the light of new information. 229 I accept Dr Alciatore’s view that despite the larger scale of the American game, the two games are very similar such that data about performance in American pool is relevant to discussion of English eight-ball pool. That position was not significantly disputed by Professor Formaggio, whose expertise put him in a good position to assess the importance of different table sizes and cue and ball weights. 230 The FargoRate data clearly indicates a sex difference in performance. The data cannot be dismissed as merely showing that men perform better because they play more often. There is broadly a correlation between ability and number of games played, but that does not mean that one of those things causes the other (or which if either is the cause and which the effect): moreover, when players are grouped by number of games played the average male score is still better. The FargoRate data cannot itself explain the cause of that difference. However, it does seem to me to suggest a physical rather than a social difference. There may be social factors which inhibit women from playing frequently, but it is not easy to imagine social factors which cause women who play as many competitive games as men on average to score worse. 231 As to the break shot, I consider that despite Professor Formaggio’s careful evidence the views of Dr Alciatore are more persuasive. 232 Dr Alciatore has substantial experience of pool whereas Professor Formaggio does not. I appreciate that Dr Alciatore’s experience is with American and not English pool, but I was persuaded by his evidence that for present purposes there is no significant difference between the games. He did accept that greater force was needed on the American break shot, but if he is right that no human player can achieve the fastest desirable cue speed in either game, that does not undermine his opinion. 233 Professor Formaggio’s views rely on computer simulations. Dr Alciatore’s views are substantially based on his direct experience. Reality is messy; one of the risks involved in simulating it is that the modelling programme may be oversimplified. It seems to me that this is likely to be the case here. 234 Professor Formaggio’s initial report was based on a simulation which incorrectly modelled the collisions which occur when the break shot is taken. He did not make it entirely clear what alterations he made to his revised simulation, but it evidently did not model all of the ways in which the balls in the rack could be touching: if it had, he would have been able to say precisely how many variables there were rather than estimating somewhere between 50 and 100. In view of that, and noting also Dr Alciatore’s point about the far greater computing power needed once one goes beyond the basic pooltool analysis, it seems to me likely that Dr Alciatore was probably right in his belief that the revised simulation was not a great advance on the original one. 235 Dr Alciatore’s evidence based on his own experience of playing and teaching a very large number of people over two decades was convincing. He said that his approach and advice had always been that on the break shot the player should aim for the fastest cue speed they could achieve without sacrificing control. There was no suggestion that this was an idiosyncratic view. Indeed, it was consistent with the figures for tournament players’ cue speeds which Professor Formaggio had found from published sources and included in his report. Dr Alciatore’s approach appears to be a matter of received wisdom among good pool players. Received wisdom is not necessarily correct, but it is worth pausing to consider what the implications would be if in this instance it were wrong. 236 If Professor Formaggio’s view about break speeds were correct, that would mean that Dr Alciatore has for many years have been taking the wrong approach to a critical part of the game (which he plays to a high standard), and giving his students entirely the wrong advice about it. If the simulations were a reliable guide, aiming for the highest possible cue speed would not merely be unnecessary but counterproductive. If players could achieve equally good results at much lower cue speeds, they could reduce that speed and focus on control and accuracy, as well as (according to the simulations) reducing their risk of potting the cue ball. 237 It is difficult to imagine that Dr Alciatore would not over a long period of play and teaching have noticed a fundamental flaw in his technique. Even if he had not, it is hard to believe that in a competitive sport played at quite a high level, other players would not have discovered that it was pointless to invest effort in achieving more than a modest cue speed. Where there is regular competition, even small advantages in technique will be sought out and, once found, seized upon and adopted by other players. Even if Dr Alciatore did not stumble upon this revelation in the course of his own play or teaching, as a keen participant in and observer of pool games he would surely have come across other players who had adopted the Formaggio approach of using a lower cue speed to their advantage. I have to ask why that has not happened. By far the most likely answer is that the approach is wrong – all else being equal, a slower cue speed translates to a less successful outcome. 238 Those are the main reasons why I prefer Dr Alciatore’s view. There are two ancillary reasons. First, Professor Formaggio’s modelling was not comprehensive, as it ignored the cut shot approach to the break. Second, there is the point that Professor Formaggio took it that greater speed translated to a greater risk that the cue ball would end up in a pocket. That assumes that the course taken by the cue ball is more or less random, and cannot be controlled by the player. I believe that assumption is wrong. Dr Alciatore’s evidence, which is based on his experience and which I accept as more likely than not to be correct, is that a good player seeks to control the movement of the cue ball, and that in games played at a high level it is rare for the cue ball to be pocketed on the break shot. 239 I am therefore satisfied that an important factor in making a successful break shot is to achieve the highest cue speed possible without losing accuracy. The same goes for other “power shots”, although it did not become clear to me how often those are needed during a typical game, and so I think that only adds a little to the point about break shots. 240 It is common ground between Professor Formaggio and Dr Alciatore that the break shot is important to the entire game in a contest between good players. I accept that. I do not accept the Claimant’s argument that the point should be disregarded as affecting only such players. For the reasons stated at paragraphs 130 to 138 I consider that s195(3) EA 2010 requires me to assess what advantage there would be as between the average man and the average woman who are reasonably skilled in the relevant game. Dr Hamilton and Dr Hilton 241 There is no real challenge to Dr Hilton’s evidence that there is a difference in absolute strength between the average male and the average female. It does not remove that difference to say that greater strength is partly the result of larger size. The reference in s195(3) EA 2010 to “strength” is unqualified: if the Act had meant the court to consider only strength relative to body size, it would have said so. 242 Greater absolute strength gives an advantage in pool because, all else being equal, it translates to a higher achievable cue speed and thus a better break shot. The relative strength needed to let a player hold the right stance while taking the shot appears to me a much less important factor. There was no evidence that a significant number of people lack that level of relative strength. 243 I have already accepted that the quality of the break shot is an important aspect of the game. To the extent that Dr Hamilton suggested otherwise, I prefer the evidence of Dr Alciatore on the point, chiefly because of his substantial knowledge of pool. Dr Hamilton’s comments that many other factors apart from strength are relevant to the success of a power shot seem to me slightly off the point. The Defendants have not sought to show that superior technique has no part in success at pool, but only that the physical differences between the sexes give an advantage. An advantage in a significant aspect of an important part of the game is still an advantage. That is particularly so when the game is one where (as Professor Formaggio and Dr Alciatore agreed is the case here) a small difference in ability can make a big difference to the outcome. 244 Dr Hamilton’s evidence was that the use of rests was not disadvantageous, or at least not disadvantageous once the player had learned how to employ them. I do not accept that. 245 First, there is no evidence that players who could comfortably bridge choose to use rests instead of bridging. Dr Hamilton confirmed that from her limited observation of the game that they did not. That strongly suggests that using a rest is less satisfactory. Second, it is not hard to see why a rest would not be a good substitute for a bridge: only the bridge formed by a hand can be altered in shape to suit the circumstances. Third, even if it were the case that a rest could be just as good once the correct technique has been acquired, that would still mean that the player who is more dependent on using a rest has to divert more of their practice time to that technique (and therefore less to other skills) than other players. 246 In my view, the ability to take more shots without resorting to a rest is a further advantage enjoyed by the average male over the average female. It is a sex related advantage because, as the experts agreed, the average male has a larger frame and so a longer reach. 247 The last area to discuss is the effect of hormonal changes on women. Dr Hamilton did not dispute Dr Hilton’s remarks as summarised at paragraph 212 above and showing that there is a significant difference between the sexes. 248 However, I am dubious about how that factor relates to s195(3) EA 2010. This question does not seem to me straightforward, and it was not much explored in argument. I will only express a tentative view. It does not affect my overall conclusion as to gender-affected activity, and even that conclusion is on an issue which is not determinative of the claim. 249 For what it is worth, I believe there are two difficulties in relying on hormonal issues in relation to s195(3). First, it not so easy to say which part of “physical strength, stamina or physique” is engaged. I do not think that the effects Dr Hilton described go to strength or physique. That leaves only stamina. Dr Hilton did not in terms say that stamina would be affected, although perhaps it could be inferred that was her opinion. The second difficulty is that the point may prove too much. If it is valid, it would mean that every game sport or activity requiring more than minimal stamina could be said to put the average woman at a disadvantage and to be a gender-affected activity. I am doubtful whether that can be right, because if Parliament’s view had been that every sporting activity requiring stamina was a gender-affected activity, it could have said as much in the EA 2010. 250 Nevertheless, I conclude that lesser strength and reach put the average woman at a disadvantage when competing against the average man at English eight-ball pool. Pool is therefore a gender-affected activity. Section 195(2) EA 2010: necessary to secure fair competition? 251 I approach this question on the basis that, as Ms White submitted, “necessary” means something that is more than merely desirable, but may be less than utterly essential. 252 Ms White further submitted that the reference to “the participation of a transsexual person” in s195(2) EA 2010 was deliberate. It meant that whether it was necessary to exclude a person should be decided on a case by case basis, looking at their personal characteristics. 253 I am not sure that is right. Even though s195(1) permits the exclusion of an entire sex, it is also phrased in the singular, as it refers to “… the participation of another...”