Olympic sport and gender?

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: ) 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.