The Debate over Sports Law and the Rights of Transgender Women Athletes

1st April, 2024 - 6:52 am Categories: Sports Law 0 Comments

Introduction

The rights of the transgender people have always been compromised, similarly in the arena of sporting events specifically in athletic events, trans women tend to suffer the most because of higher testosterone levels present in them naturally. The supporters are of the view that the exclusion of trans women from athletic events goes against them and infringes their rights in order to participate equally as other cisgender women while on the other hand, the opponents of the same state that if trans women would participate in the women’s category, they will have an athletic advantage because of higher testosterone levels and as a result they might always perform best which will not be just and fair for other cisgender women. The rules and categorization concerning the athletic events is generally based on sex and gender as it forms the basis of categorization, and the rules are set focusing on these aspects only. These rules come with different set of problems for trans women as they must undergo stringent biological procedures and tests just to maintain their testosterone levels and participate in the competition unlike other genders. They face huge difficulty and challenges just because their hormone level is not in control and is a natural effect of their biological organ. Thus, this biological differences between trans and cisgender women creates a barrier, as physically, trans women are considered to be much stronger and these differences in athletic performances don’t appear until after puberty. Not only this, but trans women also face many difficulties, the very first of it being the disparity among the rules i.e., there are different rules set out by the sports federation and in order to participate in the same, the trans women need to pass all the tests under respective sports organization and if they don’t, they are barred from the participation itself, so different rules are there under different sports federation and one has to abide specifically to each of them. Secondly, there has been instances where the women counterparts in the women’s category discriminate against the trans women and are not ready to compete due to the common view of the athletic advantage they hold. Thirdly, they are merely not allowed to compete based on high testosterone level which is not backed up by any scientific evidence and is only s common-sense view. Also, such discrimination leads not only to restricting from equal opportunity to compete, but also harsh testing is carried out under different mandate which is against fairness.

Analysis of the International Committee on Athletic Events in Relation to Transgender People

The major sports federation that deals with such events are International Olympic Committee (IOC), World Athletics and World Rugby. These organizations set out rules and regulations to participate in any of their elite athletic events but the major problem with these is that the rules for the participation of the trans people under each of them is of conflicting nature which makes it difficult for them to pass the eligibility in order to participate.

Firstly, talking about the IOC, it sets out that the participation of the trans athletes shall not be restricted without any scientific evidence and there should be no presumption as well that trans athletes hold an athletic advantage while competing and to claim the same, there must be substantial proof to hold them wrong. The IOC supports using testosterone levels to determine a competitor’s eligibility for the female division to ensure a genuine participation among all the women but as per the new framework, individual federations have the freedom to set their own rules as per their requirement and preferences in their respective areas which complicates the process as IOC’s policy is only a general guideline for all but the sports federation has individual capacity to amend the same. Secondly, earlier World Rugby used to allow the participation of trans women post- Gender Affirming Hormone Therapy but later it was decided that trans women athletes shall be banned from participation who has had male puberty and biological effects and only those will be allowed who have transitioned pre-puberty and have not experienced the biological effects of testosterone during puberty. Thirdly, World Athletics which sets out a different rule altogether states that as per their 2019 policy, trans women must compete in the women’s category only after maintaining a testosterone level below 5nmol/L for 12 consecutive months and may continue to compete for such duration if the level remains intact.

Therefore, the disparity among these organizations is real but it is evident that due to lack of data, scientific evidence, and the decision- makers in each sport, this problem arises and causes such difference. Without a doubt, it can be said that World Rugby is the most restrictive one, IOC on the other hand totally focuses on gender discrimination by allowing the trans athletes to compete based on gender identity. Both the policies are on the extreme ends as one does not allow the participation as a whole and is much rigid in nature while IOC gives much leverage to the trans players which might be misused. At this point, only World Athletics seems to be more reasonable as it sets out exact limit which shall be considered while competing for judging as to whether a trans athlete can compete or not which is not the case in the other two policies as it either completely includes or excludes trans athletes from playing at all.

Case Studies

1. Dutee Chand– Dutee Chand, who is an Indian Professional sprinter and current national champion in the women’s 100 meters event has also faced such backlashes when she was performing her best. Due to dishonest gender- verification tests and her allegedly abnormally high testosterone levels, she was disqualified from competing as a women and her gender identity was questioned by IAAF but it was contended by her that the policies that were followed and the use of testosterone levels to exclude her from competing is not justified as it restricted a naturally occurring testosterone level and attempted to control a biologically normal occurrence. Chand maintained what she said and later she was allowed to compete as the Court of Arbitration stated that the ground given by IAAF lacked scientific evidence and they were unable to establish a connection between hyperandrogenic athletes having increased testosterone levels and better athletic performance.
2. Fallon Fox– Fallon Fox who is an MMA fighter revealed in 2013 that she was a transgender. Even she revealed that she faced similar difficulties of discrimination when her fellow competitor Ashlee Evans-Smith was not ready to compete with her based on the fact that she has an athletic advantage over other cisgender women which is unfair. It was stated by Fallon Fox that this cruel and discriminatory remark underlines the mistrust that transgender athletes face on a regular basis and is continuously discriminated.
3. Caster Semenya– Semenya has been under constant physical supervision after winning the 800-meter run at the world championships in Berlin, Germany. When it was discovered that she was hyperandrogenic and that her testosterone levels were biologically higher than “the standard female range”, since then she is engaged in a string of fierce battles to protect her titles and future ability to compete in the women’s division with the International Association of Athletics Federations. Semenya and other competitors had been free to compete in events outside of the 400-meter to one-mile range, but in order to compete, they will now need to have hormone-suppressive therapy for six months. But the athlete is of the view that she will never undergo any such treatments as she has also previously been subjected to the treatment under different other rules and regulations as well.
4. CeCé Telfer– a transgender runner, has brought attention to the subtleties and difficulties associated with policing transgender sports. As Telfer did not match the qualifying rules specified by World Athletics, (the worldwide governing organisation for running sports) and hence she was not allowed to compete in the women’s 400-meter hurdles at the U.S. Olympic trials, as per the Associated Press.

Conclusion and Suggestions

It is quite evident from the above analysis and case studies that trans athletes face discrimination till date either by fellow competitors or by the sports federation altogether. Anyways, the rights of the trans athletes do somewhere get infringed, and they are highly discriminated which needs to be stopped as they deserve equal participation among all other genders. The World Rugby completely bars the trans athletes from competing is an example for gender inequality as the reason for such banning is high testosterone levels, but the irony is that there is no scientific evidence to back the same and in the absence of any substantial evidence, there is no reason to ban trans athletes from sport events. This factor is mainly based on common sense and is without science which is a major drawback of it and without any reasonable reason, this discrimination exists. Thus, the rights of the trans athletes need to be protected in the arena of sports law. Moreover, some of the suggestions are as follows:

1. Health professionals who deal in sports will need to learn more about the unique problems and difficulties that transgender athletes may face.
2. The scientific and medical communities must collaborate to help shape the regulations, particularly stating and establishing a relationship between high testosterone levels and improved sports performance.
3. It is suggested that a third category be added to elite sports without the need for a third gender to be legally required. Rather, the category shall be an ‘open’ one where any gender can participate making it more inclusive in nature.

Author:  Komal Narayan, in case of any queries please contact/write back to us via email to chhavi@khuranaandkhurana.com or at  Khurana & Khurana, Advocates and IP Attorney.

References:  

1. https://www.waikato.ac.nz/news-opinion/media/2021/the-debate-over-transgender-athletes-rights-is-testing-the-current-limits-of-science-and-the-law
2. https://www.frontiersin.org/articles/10.3389/fspor.2021.704178/full
3. https://www.npr.org/2023/03/24/1165795462/transgender-track-and-field-athletes-cant-compete-in-womens-international-events
4. https://www.espn.in/espn/story/_/id/38209262/transgender-athlete-laws-state-legislation-science
5. https://www.sporthumanrights.org/sex-and-gender-in-sports-policy-a-human-rights-perspective