This article has been written by Pranjal Mishra, from MNLU, Mumbai.

Introduction

Sports and physical activities are recognized as human rights fundamentally for all without discriminating against anyone on the basis of ethnicity, gender, sexual orientation, language, religion, political or other opinion, national or social origin, property or any other basis. In providing such opportunities, the role of international sporting organizations (ISOs) and local governments is pivotal in promoting sports and a procedural framework to regulate its governance in an efficient manner.

Sports have evolved through many stages especially in the spectra of all gender participation. In the era of numerous inequalities and biases among the gender, history of women participation in Olympic Games was first featured in 1900 Games in Paris, before this event, women were not allowed to participate in such important sports events. Now, in the age of societal development and right to sexuality, we are seeing the participation of transgender athletes in the sports sector and it is becoming necessary to ensure that transgender athletes are not excluded from the opportunity to participate in sporting competitions. This article analyzes the standpoint of transgender athletes in international sports sector. It delves into the steps taken by the international sports organizations to make sports gender-diverse and explores the legal.

Implications of such athletes

Legal implications

Recognition and inclusion

ISOs aim to protect the safety of all participants and deliver on the promise of fair and meaningful competition offered by the division of the sport into male and female categories of competition. Therefore, it was important for ISOs to recognize transgender athletes and include them into sports sector by establishing conditions for participation and eligibility criteria. World Athletics Eligibility Regulations for Transgender Athletes (WAERTA) defines ‘transgender’ as “individuals whose gender identity (i.e. how they identify) is different from the sex designated to them at birth, whether they are pre- or post-puberty, and whether or not they have undergone any form of medical intervention”.

The first ISO to address the issue was International Amateur Athletic Federation (hereinafter IAAF, now known as World Athletics) in 1990. It recommended that any person who has undergone sex reassignment before puberty should be accepted in sport under the assigned gender and those individuals who have undergone sex reassignment after puberty were considered to represent a more complex problem, since they have been under the influence of hormones under their former gender during their puberty. It was these recommendations that paved a way to an ad-hoc committee convened by the International Olympic Committee (IOC) Medical Commission and adoption of Stockholm Consensus report. This was the first step for transgender athletes to participate in the international sports events, it laid down three requirements for them to be recognized into their acquired gender, which were:

1. They must have undergone the gender reassignment surgery.
2. They must have the legal recognition of their assigned gender by the appropriate official authorities.
3. They must have at least two years of hormone therapy.

Along with such evolution and scientific development, IOC also saw a transition of gender testing from nude parades to athletes’ chromosome and DNA examination to finally, hyperandrogenism, which detects the levels of testosterone in women.  Since the high levels of testosterone can significantly improve the athletic performance, in the light of fair play and equality, IAAF laid down the level of testosterone for such athletes should be less than 5nmol/l for eligibility. 

Moreover, in case of Chand v. Athletics Federation of India (AFI) and IAAF 11 , a different stand was taken by the IOC Consensus Meeting which recommended that for the inclusion and participation of such athletes, female athletes with high level of testosterone should be eligible to compete in male competitions. Thenceforth, we are yet to mark the history where such female athletes would participate in the male competitions.

In the light of the above stated regulations and decisions, ISOs have shaped a framework for transgender to be included in international sports sector. They have included the policies of equality and fairness as well as the verification of gender to stimulate the inclusion of such athletes into the sports spectrum. However, there are legislations that identify gender by legal recognition and not by biological performance. For example, the Gender Recognition Act 2004 of U.K. explains that the purpose of the act is to provide transgender with legal recognition in their acquired gender. However, the said act brings out a conflict against the IOC guidelines in case of transgender of U.K. that even after gaining legal recognition of their respective gender without undergoing sex reassignment surgery, one cannot participate in Olympics. On the evaluation of the instant case, the IOC could justify their stance on the principle of fairness enshrined in its guidelines. The flip side could be that IOC guidelines infringe an individual’s human rights of right to private life and non-discrimination under articles 8 and 14 of ECHR respectively. In addition, section 19(1) of the act defines the meaning ‘sporting body’ which undoubtedly covers IOC and local authorities. Thus highlighting the compliance of IOC with the said act.

The predicament is whether anyone who is legally recognized in a gender should be allowed to participate in the sports events for that gender immediately or should the principle of fairness supersede the human rights in larger optics of performance. The solution that could be envisioned is the segregation sports into three spheres – sex affected, non-sex affected and mixed sex sports, where the female athletes with high testosterone level could participate in the men competitions and the conditions of competitive advantage of transsexuals disappears.

Unfortunately, there are only a small number of true mixed sex sports which allows men and women to compete against each other equally regardless of sex. However, the conflict of human rights and principle of fairness could be mitigated if certain games like archery, diving, gymnastics rhythmic and skateboarding are allowed from the list 17 of Olympics for such female athletes to participate, where the involvement of technique is more than the physical strength. Secondly, any sporting body can, after proper consultation with elite athletes, choose to institute more liberal rules, for example by shortening the two-year requirement or even allowing participation for any athlete in his or her legally recognized gender. 

Such framed rules and modifications would elucidate the principle of fairness and increase the participation of transgender athletes. However at the same time, there is also an interest in sport in upholding principles of fairness. Since the overriding sporting objective is and remains the guarantee of fair competition, restrictions on participation are appropriate to the extent that they are necessary and proportionate to the achievement of that objective. 

Discrimination

The need to respect and preserve the dignity and privacy of Transgender athletes, and to avoid improper discrimination and stigmatization on the grounds of gender identity, is paramount. The urgency to protect the dignity of such athletes is the need of the hour not only in the international sphere but also in national and local arenas.

Countries like U.K., U.S. and India have their own national regime of anti-discrimination laws. Like in India, constitutional provisions like articles 14, 15, 16 and 21 plays a pioneer role in protecting and ensuring gender justice by establishing equality before law and prohibition of discrimination on grounds of religion, caste, sex or place of birth and more so, these provisions extents the equality of opportunity in matters of public employment. Local laws and national policies of country are protecting the rights and safeguarding the interests of transgenders to participate in the public domain, especially in the realm of sports. However, policies of international organization do not distinguish the need of anti-discrimination laws for transgender athletes and only lays down a general denotation of discrimination.

The Olympic Charter of 2019 does not talk about transgender athletes and their need of privacy laws and protection from stigmatization and victimization. The charter enlists the fundamental principles of non-discrimination in a general notion that the enjoyment of rights and freedoms shall be secured without discrimination of any kind, keeping in mind the Olympic spirit. Moreover, WAERTA also talks about non-discrimination towards such athletes in a general sense and stresses on the importance of confidentiality and privacy laws for them. However, both regulations failed to establish a pragmatic approach to cater the needs of these minorities in sports.

Certain specific guidelines such as respectful communication of pronouns and names should be adopted. The preference for the use of masculine, feminine or gender neutral pronouns should be the choice of such athletes and it should be abide by others demonstrating respect towards gender identity and expression. Secondly, there should be inclusion of guidelines regarding access to locker rooms and bathrooms and if needed, separate changing rooms and additional privacy be given to them and others are encouraged to respect it. Thirdly, there should be a uniform code of apparel and dress codes which does not conflict with gender identity and is appropriate for their sports. Lastly and most importantly, all medical information of such athletes must be kept confidential. Thus, inclusion of suggested specific policies into the international arena would not only prevent discrimination and stigmatization but it would also reflect the principles into the society, communities and into the local sphere.

Conclusion

Sports participation is a right and privilege, no one should be deprived of it. ISOs have been receptive to the implications of transgender athletes in regards to inclusion, recognition and discrimination. Apart from inclusive policies, international as well as national arena should also address the following elements:

1. Set clear and reasonable criteria for determining an athlete’s eligibility to compete that are based on up-to-date expert legal and medical knowledge about the effects of gender transition on athletic performance.
2. Preserve competitive equity among all participants in sports, in which competition is separate for men and women.
3. Provide assurance that transgender students are offered sport opportunities of their choice at the level of participation best suited to their interests and abilities.

Moreover, the ISOs should also ensure the uniformity of regulations pertaining to transgender athletes. As per IOC guidelines, such athletes has to undergo at least two years of hormone therapy, however, the policy of International Gay and Lesbian Football Association requires at least one year of hormone therapy. Such uniformity of regulations and inclusion of specific guidelines into the various fora of associations would mitigate the implications and bolster the framework of welcoming transgender athletes into the international sports sector.

References

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