Olympic sport and gender?

Dr Seema Patel reviews the law on gender discrimination in sports law and the Olympics

The participation of trans athletes and athletes with sex variations has generated intense discussion in recent years. The way in which sports bodies have dealt with this issue, through the implementation of gender eligibility rules and their treatment of gender diverse athletes, has been widely scrutinised (Patel, “Gaps in the protection of athletes’ gender rights in sport — a regulatory riddle” (2021) International Sports Law Journal: https://link.springer.com/article/10.1007/s40318-021-00182-2). The latest guidance on this debate comes from the International Olympic Committee (IOC), which released the IOC Framework on Fairness, Inclusion and Non-Discrimination on the Basis of Gender Identity and Sex Variations in November 2021. Following extensive consultation with athletes and stakeholders, for the first time, respect for the human rights of gender-diverse athletes dominates the Framework and represents a meaningful shift in the traditional scientific approach taken by sport on this matter.

What has changed?

The IOC Framework modifies the policy considerations and places gender equality, non-discrimination and inclusion at the centre of its objectives. The guidance is based upon ten key principles – inclusion, prevention of harm, non-discrimination, fairness, no presumption of advantage, evidence-based approach, primacy of health and bodily autonomy, stakeholder-centred approach, right to privacy, and periodic reviews of eligibility criteria. Each of these pillars serve to ensure that everyone can participate in sport, irrespective of their gender identity or sex variations. This is a bold statement – and a refreshing inclusive approach, et it is questionable to what extent this changes the status quo for gender diverse athletes.

What questions does this raise?

The inclusion of trans athletes and athletes with sex variations in sport has created a “regulatory riddle” (Patel, 2021), for three main reasons. Firstly, trans female athletes and athletes with sex variations have troubled the traditional sex categories of sport, because it is assumed that they deviate from the binary norms and possess biological traits that give them an unfair advantage in the female category. Sport policies regulating their eligibility have morphed over time, from humiliating sex tests to controversial gender verification and eligibility rules premised upon inconclusive testosterone-related advantages which have subjected minority athletes to arbitrary controls. Caster Semenya’s challenge of the validity of these restrictive sport gender rules has forced sports bodies to dramatically review their approaches. The IOC Framework is a positive response, and it has departed from its previous position of testosterone-based guidance, which is no longer necessarily sufficient. The balance between inclusion and exclusion (Patel, Inclusion and Exclusion in Competitive Sport: Socio-Legal and Regulatory Perspectives (2015) London: Routledge: routledge.com/Inclusion-and-Exclusion-in-Competitive-Sport-Socio-Legal-and-Regulatory/Patel/p/book/9780415377119) is complicated by the competing rights at stake – sport interests, cis female and gender-diverse rights have been dangerously placed in opposition of each other, which has fuelled a divide. However, thus far, the scientific, biological evidence around performance advantage and injury risk, has dictated the debate, sidelining wider legal and human rights implications (Patel, 2021). The IOC Framework attempts to rectify this by stating that there should be no presumption of advantage – and recognises that ethical, legal, social and cultural issues also require attention when determining eligibility.

What about wellbeing?

Secondly, from a law and regulation perspective, there is an increasing concern for the wellbeing of athletes, the protection of their human rights, and the duty of care in sport (Patel, 2021). There are regulatory shortfalls in the ability of sport bodies to satisfy human rights provisions and be held accountable for failures. The IOC Framework seeks to ensure human rights are embedded into sport, prioritising the health and wellbeing of athletes. That said, it has not ruled out eligibility rules or restrictions on gender-diverse athletes if necessary for safe and fair competition. It remains the ultimate judgement of individual sports to identify its own eligibility criteria to minimise unfair advantage. It advises those decisions should be founded upon international human rights, robust evidence and consultation with relevant athletes and stakeholders.

What about societal changes?

Thirdly, the attention on gender diversity in sport is also a response to the advances in gender perspectives in society. There are increased calls for legal gender status reforms that accurately reflect the changing nature of sex and gender and are more inclusive in their scope (Patel, Chapter 3: “Law and Regulatory Barriers to Increasing Inclusivity for Trans Athletes” in: Gender Diversity and Sport Interdisciplinary Perspectives (2022) Eds. Gemma Witcomb, Elizabeth Peel. London: Routledge: routledge.com/Gender-Diversity-and-Sport-Interdisciplinary-Perspectives/Witcomb-Peel/p/book/9780367506285). The IOC Framework declares that there should be no discrimination or exclusion based on trans identity or sex variations. It does not refer to non-binary athletes, which leaves some gaps in expanding sport inclusivity.

What comes next?

The impact of the IOC Framework will firmly rest on whether the sports bodies actively engage and adopt the ten principles. Although the Framework signals significant progress, the “regulatory riddle” remains unresolved, because the guidance is not legally binding and has no enforceability. The IOC Olympic Charter has long affirmed that the practice of sport is a human right, but this has largely been ignored by sports bodies in the treatment of gender-diverse athletes. The autonomous private nature of sport regulation has given sports bodies the freedom to operate internally without legal scrutiny or accountability, especially in discrimination matters. Indeed, sports bodies tend to be placed outside of the legal regime – and therefore immune from international human rights and non-discrimination provisions. This is restricting the ability of minority athletes to assert their rights and challenge derogatory treatment, particularly when they are confined to the exclusive authority of the Court of Arbitration for Sport (CAS) (Patel, 2021). The Semenya case has gone beyond sport and has taken a legal turn, with an appeal to the European Court of Human Rights (ECtHR). The outcome is likely to have a lasting impression on the future of athletes’ rights and the adequacy of sport regulation for dealing with discrimination disputes. For now, the IOC Framework offers a renewed approach and a firm commitment to fairness, inclusion and non-discrimination. In order to shift the status quo further, it will need to be supplemented with effective law and human rights enforcement mechanisms.

Dr Seema Patel is a senior lecturer in law at Nottingham Law School: ntu.ac.uk/study-and-courses/academic-schools/nottingham-law-school