This website uses cookies

This website uses cookies to ensure you get the best experience. By using our website, you agree to our Privacy Policy

Seema Patel

Associate Professor in Law, Nottingham Law School

Quotation Marks
Paris 2024 promises great advances in gender equality between men and women in sport, with an increase in mixed sex events also scheduled

Paris 2024: looking beyond the gender binary

Feature
Share:
Paris 2024: looking beyond the gender binary

By

Dr Seema Patel discusses the current situation in regard to the inclusion of gender diverse athletes in sport as the world embarks on the next Olympic Games

The Paris 2024 Olympic Games represent a significant milestone in gender parity, with 50/50 representation expected between men and women on the field of play for the first time in Olympics history. The inclusion of gender diverse athletes, such as trans athletes and athletes with sex variations, within those binary categories continues to divide and challenge commitments to equality in sport. At the Tokyo Olympics 2020, New Zealand weightlifter Laurel Hubbard satisfied gender eligibility requirements and became the first trans female athlete to compete in the Olympic Games female category. Since then, the regulatory landscape of gender eligibility policies has moved further, and at the forthcoming Olympic Games, gender diverse athletes face tougher restrictions to minimise perceived male athletic advantages.

High-profile cases involving athletes such as Lia Thomas and Caster Semenya has raised serious questions about the reconciliation of the competing interests of sport, gender diverse athletes and cis-female athletes and prompted a range of viewpoints from sport regulation, science, human rights, law, lived experiences and ethics. This takes place at a time when gender identity and gender rights are evolving and expanding beyond a binary in wider society and law.

However, diverse perspectives are constantly shifting and tend to sit in isolation from each other during policy making, which leads to inconsistent gender eligibility regulation and perpetuates fears and assumptions about difference. In the absence of collective representation during policy making, the situation has become discordant, when it may not need to be.

Sport policies

Increasingly, academics, experts, stakeholders, policy makers and athletes are grappling with the conundrum of how to include gender diverse athletes into a binary system that has been historically designed for typical female bodies. The current International Olympic Committee (IOC) Framework on Fairness, Inclusion and Non-Discrimination on the Basis of Gender Identity and Sex Variations (2021) is non-binding, but centres around ten key principles: inclusion, prevention of harm, non-discrimination, fairness, no presumption of advantage, an evidence-based approach, primacy of health and bodily autonomy, a stakeholder-centred approach, the right to privacy and periodic reviews of the eligibility criteria. Each of these pillars serve to ensure that everyone can participate in sport irrespective of their gender identity or sex variations. The Framework marks a shift from the scientific lens underpinning most policies and instead prioritises a multidisciplinary decision-making process. However, responses to the Framework were mixed and there have been objections to the sidelining of scientific evidence that identifies the impact of testosterone exposure upon male performance advantage and the retention of such advantages despite testosterone suppression.

The Framework encourages each international sports federation to develop sport specific knowledge in the context of its own eligibility criteria. Given this autonomy, gender eligibility policies acknowledge the IOC Framework but vary and there are inconsistencies in regard to application across and within sports at an international, national, community, grassroots and educational level. Ahead of Paris 2024, there is a trend towards enforcing bans on gender diverse athletes among international federations such as World Rugby, World Athletics, Union Cycliste Internationale and World Aquatics, reserving female elite competition for those whose birth sex is female. Whereas World Rowing and World Triathlon permit trans female athletes to compete in the female category if their testosterone levels are reduced for a specified period of time, the British national governing bodies have restricted trans females entering the female category.

Even where minimal physical exertion exists, the International Chess Federation (FIDE) temporarily restricted trans female players from competing in the female only chess events, stating that further analysis is required. This position is inconsistent with national federations, such as the English Chess Federation who viewed the exclusion as incompatible with English law.

Other approaches include setting testosterone level thresholds, surgical intervention, requiring a gender declaration, puberty-based conditions, introducing open categories or eliminating gender controls entirely. In Australian sports, such as Australian Rules Football (AFL), alternative policies focus on the inclusion of transgender and gender diverse people, with metrics beyond testosterone levels monitored, including height, weight, bench press, squat, 20 sprint time, vertical jump, match GPS data and 2 km run time.

Although progress is being made and sports bodies seem to be engaging in wide consultation through working groups with various stakeholders, experts and athletes during the formulation of gender eligibility policies, there is a lack of transparency during the process and an absence of influence beyond the scientific community to contribute effectively to the decision-making process. In terms of satisfactory solutions, the imposition of bans in the female category are not necessarily an effective long-term strategy; open categories have not yet been successful and potentially mischaracterise gender diverse females; testosterone suppression is scientifically and ethically challenged; and distinct guidance for athletes with sex variations is less explicit despite having limited cross over with trans populations.

Scientific evidence

Gender eligibility rules seek to protect sex categories in sport, following the notion that there are biological differences between typical men and women, and the impact of those variances in regard to sport performance, and that such an advantage tends to favour men in most power-based sports. It is generally understood that testosterone is considered a primary marker for athletic performance and drives these sex differences during and post puberty. Even in mind sports, disputed biological intellectual differences between male and female brains have been used to justify sex segregation.

Given this biological basis, some studies conclude that medically transitioned trans female athletes retain male performance advantages in the female category which compromises fair and safe competition (Lundberg et al., 2024), and those with elevated levels of testosterone derived from a Differences of Sexual Development (DSD) trait, benefit from an unfair advantage over typical females. Despite a growing body of research on these small and diverse populations, the field remains in its infancy and there are few robust studies. As a result, there is no consensus on the evidence of a retained performance advantage or the association between testosterone and performance and the impact for heterogenous DSD athletes (Hamilton et al., 2024). The inconclusive correlation between sex categories, the effects of testosterone on DSD athletes and transitioned trans females, sport performance, advantage and gender diversity, makes the sole reliance on science in policy making less compelling.

The role of human rights

The IOC Olympic Charter is the foundation of Olympism and affirms that the practice of sport is a human right, which applies without discrimination based on sex, birth or other status. Sports bodies are increasingly aware of human rights obligations as evidenced in the Olympic Agenda 2020 + 5. The international human rights framework is slowly extending rights to gender identity and gender expression. However, the influence and enforceability of human rights in sport and sport arbitration has been tested to a degree in the Caster Semenya case, a South African female sprinter who failed to satisfy the World Athletics Eligibility Regulations for the Female Classification (Athletes with DSD) 2018, which require ‘biologically male’ athletes with 46 XY DSD, to reduce their naturally high hormone levels, or compete in the male category if they are ineligible to enter specific female events. The Court of Arbitration for Sport (CAS) ruled in favour of World Athletics and an appeal to the Swiss Federal Tribunal (SFT) was rejected. Challenging the compatibility of her human rights with the 2018 Regulations, in 2023, the European Court of Human Rights (ECtHR) found that there had been a violation of the European Convention on Human Rights (ECHR) by failing to secure effective institutional and procedural safeguards in the review of Semenya’s case. In November 2023, the case was referred to the Grand Chamber of the ECtHR, following a request by the Swiss government. This is unknown territory, but the judgment provides important analysis for the compatibility of sports rules and arbitration, with human rights, as well as the governance of sport and the responsibility of the state (Patel, 2021). Although sports bodies have the autonomy to develop their own gender eligibility rules, this is as much about human rights as it is science.

Binary categories maybe important for securing equality between men and women, and the rights of cis females are of equal importance. However, invasive medical interventions (such as hormone supressing treatments and surgical removal of testes) go far beyond what is necessary to protect categories, minimise advantages and maintain fairness. Instead, there could be significant medical and ethical risks, breaches of bodily autonomy and consent, and long-term physiological and psychological health implications, an opinion endorsed by the World Medical Association and the United Nations (United Nations, 2023).

Legal challenges

It is no surprise that restrictive eligibility rules are increasingly subject to legal challenge as athletes begin to assert their rights. In 2024, trans female American swimmer Lia Thomas filed arbitration proceedings against the World Aquatics gender eligibility policy, claiming that they are unlawful and discriminatory. The legal position on gender eligibility rules and the actions of sports bodies is unclear because of provisions such as Section 195 of the UK Equality Act 2010 (EA), which allows sports bodies to discriminate on the basis of sex and lawfully divide sport in the context of a ‘gender-affected activity,’ where the ‘physical strength, stamina or physique of average persons of one sex would put them at a disadvantage compared to average persons of the other sex as competitors in events involving the activity’. Not only has this been used to defend gender restrictions but it might also be used to argue that gender inclusive policies violate the EA because cis females are disadvantaged by the entry of ‘biological males’. However, the exemption clause has been plucked from outdated legislation (Section 44 of the Sex Discrimination Act 1975), which was previously considered ‘dead law’ and predicated on misguided assumptions about biological and social sex differences (Patel, 2015). With little formal intervention from the UK government in relation to gender eligibility rules in sport, the exemption provision requires urgent review and reform to reflect current updated knowledge of sex and gender and to appreciate the nuances of gender diversity. Any exemption must also be read alongside human rights provisions.

Dr Patel discussed gender eligibility rules at LawAccord 2024 last month in Birmingham, alongside expert speakers. See https://www.sportaccord.sport/2024-wsbs/speakers-2/

Dr Patel discussed gender eligibility rules at LawAccord 2024 last month in Birmingham, alongside expert speakers. See https://www.sportaccord.sport/2024-wsbs/speakers-2/

The athlete’s voice

Mostly absent from the consultation and debate is the voices of all athletes who are directly impacted by the rules and who are already underrepresented and experience multiple barriers to sport participation. Sports bodies tend to note the representation of one or two athletes in their working groups, but there is an obvious shortage of qualitative research which examines the lived experiences of those affected. Instead, gender diverse and cis females are homogeneously grouped and pitted against each other in the media to exaggerate a division that does not necessarily exist. This polarisation means that key parties, such as athletes, specialists and academics, are hesitant to speak out and offer their views, fearful of receiving online hate and abuse. It also means that people are misinterpreted and misrepresented. The voices of athletes deserve equal attention in policy discussions and athletes should be recognised as key stakeholders in this debate (Barras, 2024; Shaw et al., 2024). A better understanding of lived experiences in sport and the impact of eligibility rules on these groups may go some way to drive out assumptions to reduce the fear, suspicion and divide and promote responsible governance and regulation.

Fairness and inclusion

At the heart of these diverging views is an antagonism between core sporting values (fairness and inclusion) and whether gender diverse athletes should be excluded to protect fair competition, or whether inclusion trumps fairness. There is considerable deliberation over the ethical position of fairness and inclusion and whether these factors can/should be balanced, prioritised or connected when determining gender eligibility (Pike, 2021). Many have indicated that fairness and inclusion are irreconcilable in this area because of the perceived male athletic advantage. Suppose the science is a settled matter, an overarching consideration is what level of advantage is accepted as fair or unfair in sport, particularly when other biological inequalities, such as height in basketball or increased oxygen capacity in endurance sports, are treated as natural, tolerated and even celebrated. Sports bodies should engage with the theoretical considerations when designing and executing eligibility policies to ensure consistency for all athletes in each sport and to achieve the right solution rather than the most favourable one.

Conclusion

Paris 2024 promises great advances in gender equality between men and women in sport, with an increase in mixed sex events also scheduled. Yet, within those categories gender diverse groups might be left behind because current gender eligibility polices are almost moving in the opposition direction. In order to overcome this misalignment, it is necessary to improve the regulation of gender diverse athletes in sport, through a more robust process that accurately reflects the voices of all the key representatives from areas such as sport, medicine and science, human rights and law, athletes and ethics, so that everyone has a seat at the table. The Olympic Games is an ideal opportunity to think differently by refreshing the approach to gender eligibility and to drive a more collaborative and evidence-based agenda (Patel, 2023).

References

Barras, A. 2024, forthcoming. Transgender and Non-Binary People in Everyday Sport: A Trans Feminist Approach to Improving Inclusion (London: Routledge). https://www.routledge.com/Transgender-and-Non-Binary-People-in-Everyday-Sport-A-Trans-Feminist-Approach-to-Improving-Inclusion/Barras/p/book/9781032466170

Hamilton, B. et al., 2024. Strength, power and aerobic capacity of transgender athletes: a cross-sectional study. British Journal of Sports Medicine. 0:1-12. https://bjsm.bmj.com/content/early/2024/04/10/bjsports-2023-108029

Lundberg, T. et al., 2024. The International Olympic Committee framework on fairness, inclusion and nondiscrimination on the basis of gender identity and sex variations does not protect fairness for female athletes. Scandinavian Journal of Medicine and Science in Sports 34. https://onlinelibrary.wiley.com/doi/full/10.1111/sms.14581

Patel, S. 2023. Refreshing and reimagining the human rights framework to protect athletes’ gender rights and removing risks at mega-sporting events in (eds) Rook W, Heerdt D, The Routledge Handbook of Mega-Sporting Events and Human Rights. London; Routledge. https://www.routledge.com/The-Routledge-Handbook-of-Mega-Sporting-Events-and-Human-Rights/Rook-Heerdt/p/book/9781032298924

Patel, S. 2021. Gaps in the protection of athletes’ gender rights in sport—a regulatory riddle. The International Sports Law Journal. https://link.springer.com/article/10.1007/s40318-021-00182-2

Patel, S. 2015. Inclusion and Exclusion in Competitive Sport: Socio-Legal and Regulatory Perspectives. London: Routledge. https://www.routledge.com/Inclusion-and-Exclusion-in-Competitive-Sport-Socio-Legal-and-Regulatory/Patel/p/book/9780415377119

Pike, J. 2021. Safety, fairness and inclusion: transgender athletes and the essence of rugby. Journal of the Philosophy of Sport 48:2 pp. 155-168. https://www.tandfonline.com/doi/full/10.1080/00948705.2020.1863814

Shaw, A.L. et al., 2024. The perspectives of current and retired world class, elite and national athletes on the inclusion and eligibility of transgender athletes in elite sport. Journal of Sports Sciences. https://www.tandfonline.com/doi/full/10.1080/02640414.2024.2326354

United Nations, 2023. UN experts urge States to uphold the ideal of sport that is inclusive of LGBT and intersex persons. Online https://www.ohchr.org/en/press-releases/2023/10/un-experts-urge-states-uphold-ideal-sport-inclusive-lgbt-and-intersex