All transgender athletes should have a fair opportunity to compete in professional sports. International sporting organisations and governing bodies must take all measures to ensure that the fundamental human rights of transgender athletes are protected.
Transgender people deal with a multitude of challenges in daily life. Not least in professional sports, where their participation is met with debate, uncertainty, controversy, and a patchwork of eligibility criteria. Fairness and equality considerations come to the fore and are the principles by which this discussion should be driven. As society evolves, so too should traditional binary categories of sport (organised into male and female categories) evolve. What has been apparent, as illustrated in case law involving professional athletes, is that in the application of eligibility criteria, the rights of athletes (transgender athletes in particular) are often violated. The evolution of traditional binary categories of sport presents an opportunity for governing bodies to introduce new policies and frameworks to protect the rights of athletes.
CURRENT STATUS QUO
The essence of professional sport is the competition that tests our human differences and characteristics. Professional sport is divided into categories to maintain the purity of such competition. It is purported that professional sports are the only acceptable environment in which sex segregation is justifiably enforced. This perspective attempts to legitimise the limitation of human rights. It is premised on the assertion that the physiological differences between male and female automatically translates into a competitive advantage through sheer strength and speed. Therefore, such physiological differences necessitate segregated categories for competition.
There is an argument that suggests that the testosterone level in an athlete is the determining factor in their performance capabilities, and therefore any regulation criterion should focus on the testosterone level of an athlete. In line with this argument, the medical commissions of major sports governing bodies, such as the International Association of Athletics Federations (IAAF) and the International Olympic Committee (IOC), focus their research and regulation criterion on the testosterone levels in athletes, particularly in the female category. Their rationale is to make the category equal and fair, claiming all athletes competing in the female category should have similar hormonal testosterone levels.
NEED FOR CHANGE
One should consider whether any regulatory criteria that requires an athlete to increase or decrease their testosterone level is an infringement on their right to bodily autonomy and right to health. The United Nations Human Rights Council (UNHCR) criticised the IAAF for potentially “developing and enforcing policies and practices that force, coerce or otherwise pressure women and girl athletes into undergoing unnecessary, humiliating and harmful medical procedures”.
The argument that advocates for a reduction (or increase) in the testosterone levels of an athlete is based on myth, because there is insufficient research and inconclusive evidence to support such claims. For example, in two world championships, data analysis highlighted that in 16 out of 21 events women with lower testosterone levels performed better than those with higher levels. In another example, the Court of Arbitration for Sport (CAS) suspended the IAAF’s policy regarding hyperandrogenism for two years and ordered it to continue scientific research into the subject. Moreover, it can be accepted that there are far more factors to gaining a competitive advantage in professional sport than testosterone and hormone levels. One must consider technique, diet, mental strength, training routine, and hand-eye coordination (amongst many other factors). Additionally, elite athletes have unique qualities that allow them to compete at a high level and gain an edge over their competitors. Making regulatory criteria based on one factor and inconclusive evidence is resulting in discriminatory practice.
The current policies around transgender athletes focus entirely on physiology and disregard legal standards of human rights. This discussion also entails whether trans people are who they say they are and should be recognised as such. Ultimately, transgender athletes should be allowed to compete in the category aligned with their gender identities. The IOC permits transgender athletes to compete, albeit under very strict and rigorous hormone criteria. Such a major governing body’s acceptance of transgender athletes is a significant step forward in trans athletes’ participation in professional sports. However, full trans acceptance will only be achieved when all transgender athletes can compete in the gender category with which they identify, without facing discriminatory practices in the process.
A NEW APPROACH
Transgender athletes find themselves in a vulnerable position due to the lack of legal accountability and limited access to remedy where their rights have been infringed. Therefore, it is recommended that to ensure the protection of the rights of the person, the governing bodies shift their gender framework from the institution of sport to the individual. The fundamental human rights of all transgender athletes must be the priority consideration in formulating eligibility regulations. These fundamental rights include, but are not limited to, the right to health, right to bodily autonomy, right to non-discrimination, right to privacy, right to gender self-identification, and, subsequently, the right to participation in sports.
The lack of definitive research on the biology of transgender athletes, and possible advantages or disadvantages to this biology, has made the task of formulating a fair and comprehensive eligibility framework an extremely delicate balancing act. Governing bodies must consider the fundamental human rights of transgender athletes and cisgender athletes, whilst maintaining the integrity, fairness, and competitiveness of the respective sport. The Chand and Semenya cases, although not dealing with transgender issues directly, are catalysts to review eligibility criteria. These cases underscore the lack of scientific evidence and legal inconsistencies in eligibility rules and requirements. Furthermore, the Semenya case highlighted the need to review the DSD rules and subsequently ushered in the Eligibility Regulations for Transgender Athletes in 2019. [1]
THE WAY FORWARD
The Universal Declaration of Human Rights (UDHR) codifies the rights to equality and freedom from discrimination based on sex and gender. This text, read with provisions from the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), should guide sports governing bodies in developing non-discriminatory gender policies. Further, article 10(g) of CEDAW provides that all people have the same opportunity to participate in sports. Governing bodies are not immune from the law and should be held accountable in this regard. The challenge is ensuring their compliance and holding them accountable. One possible solution is the establishment of an international tribunal for the resolution of human rights disputes in sports. This tribunal would be tasked with ensuring that sport-specific rules are necessary, reasonable, proportionate, and non-discriminatory. Furthermore, a tribunal could work in collaboration with UN monitoring agencies to ensure compliance.
[1] The World Athletics Eligibility Regulations for Transgender Athletes, World Athletics, Book C – C3.5, Entered into force from October 1, 2019.
Neil Mugabe holds Bachelor of Laws & Bachelor of Political Sciences (International Studies), respectively, from the University of Pretoria. He has a keen interest in issues relating to international law, human rights, access to justice & sports law.