Should there be more mixed gender sport? Finding a balance between fairness, safety, and inclusion
Introduction
This is the second part of the article “Should there be more mixed gender sport”? The first part considered the Law and the various arguments and examples of mixed-gender sports and events.
This second part looks at transgender and intersex athletes and how different sports and governing bodies deal with this challenging issue.
The integration of transgender and intersex athletes in sports
Amid the ongoing debate surrounding mixed gender sports lies the contentious issue of the participation of trans and intersex athletes. This multifaceted and evolving debate revolves primarily around the inclusion of trans women and intersex athletes in women's sports, alongside athletes those who were assigned female at birth. The public debate around transgender women in sports has become the “latest flashpoint” in culture wars.
On one side, some groups argue vehemently in favour of transgender individuals' right to compete in sports according to their self-identified gender, advocating for a complete absence of restrictions on their participation. For example, in the case of Semenya v Switzerland (2023), the applicant, an international athlete specialising in middle-distance races (800 to 3,000 metres), complained about regulations issued by the International Association of Athletics Federations (“IAAF”), requiring her to lower her natural testosterone levels through hormone treatment to be eligible to compete as a woman in international sporting events. The Court’s ruling confirmed that sex characteristics” is a protected ground against discrimination (Article 14 European Convention of Human Rights (“ECHR”)), the right to respect for private life (Article 8 ECHR) and the right to an effective remedy (Article 13 ECHR). Significantly, the European Court of Human Rights emphasised that athletes have human rights, and they should have access to processes to protect these rights. The court is clear that its comments will not affect any future outcomes on this issue: 'Without wishing to prejudge any future cases before it, it simply observes at this stage that, in the case of transgender sportswomen, the advantage they enjoy is due to the inequality inherent in their birth as men’. However, the emphasis of this case, as well as cases against the inclusion of trans women in women’s sports continues to be testosterone levels.
Conversely, at the other end of the spectrum, there are those who contend that transgender women may possess a sports performance advantage that is perceived as unfair to cisgender women (those whose gender identity aligns with the sex assigned at birth). This viewpoint advocates for limiting transgender and intersex athletes to compete exclusively in the category corresponding to the sex assigned at birth. According to a report from Gallup (2023), nearly 70% of U.S. adults say transgender athletes should be allowed to compete only in sports teams that correspond with the sexes they were assigned at birth.
Reaction and Response: Governing Bodies
At present, stakeholders are struggling to navigate the complexities of integrating intersex and transgender athletes into sport competitions whilst ensuring fairness, particularly in high-level organized women's sports, and the physical safety of all athletes. This article will draw upon two main narratives when dealing with the integration of transgender and intersex athletes in sports.
Testosterone Level: Outright ban
The spectrum of opinion on this matter demonstrates that, in the realm of sports policy development, numerous policies use biomedical research to underpin their decisions regarding inclusion or exclusion. Testosterone levels are often selected as the primary marker to assess and equalize sex-related athletic advantages, shaping inclusion criteria.
- World Athletics (WA)
World Athletics (“WA”), the governing body for track and athletics, announced that transgender women who went through male puberty can no longer compete in women’s events at international competitions. Clause 3.2.4 holds that since puberty they must have continuously maintained the concentration of testosterone in their serum below 2.5 nmol/L. This policy took effect on 31 March 2023. WA said its rules prioritized fairness and “integrity of female competition”. The organization’s president, Sebastian Coe, said, “We will be guided in this by the science around physical performance and male advantage which will inevitably develop over the coming years.”
- UK Athletics (“UKA”)
In February 2023, the UKA urged the UK government to revise legislation related to transgender participation in athletics, proposing that transgender women compete in an “open” category which would replace the current male category and be open to athletes of all sexes, while reserving the women’s category for competitors that were female at birth. In the wake of criticism regarding their “inaccurate” interpretation of section 195 of the Equality Act 2010, UKA followed the approach of WA. In a surprising u-turn, UKA swiftly implemented an immediate ban on transgender women participating in the female category across all its events at international level. UKA defended its ban, asserting that it “is fair for athletes who have gone through male puberty to be excluded from the female category in athletics” but that “athletics should remain an inclusive sport”.
- USA Ice Hockey
In January 2019, USA Hockey announced a new set of guidelines on transgender athlete eligibility which stated that transgender women aged 14 and up must have undergone at least a year of testosterone suppression therapy and that transgender men should not have begun testosterone hormone therapy.
- National Women’s Hockey League (“NWHL”)
Announced in December 2016, the NWHL’s policy on trans eligibility currently bans players assigned female at birth from playing while undergoing testosterone hormone therapy and specifies that players assigned male at birth must be able to demonstrate that their serum total testosterone level "is within typical limits of women athletes," and that the league may monitor hormone levels via testing.
The approach of imposing an outright ban has been adopted in the US with eighteen states passing laws banning transgender athletes participating in female school sports.
Sport by Sport Basis
Digressing from an outright ban, another approach is that the participation of transgender and intersex athletes should be judged on a sport-by-sport basis. However, research findings in the biomedical area are inconclusive. There is little scientific understanding about the attributes or properties of HRT, namely testosterone suppression and estrogen supplementation, on the physiology and athletic ability of trans women athletes.
- International Olympic Committee (“IOC”)
In November 2021, the IOC released the Framework on Fairness, Inclusion and Non-Discrimination on the Basis of Gender Identity and Sex Variations. The framework advocated for the prioritisation of human rights of transgender athletes, and delegated responsibility for creating regulations to individual sports organisations. This marked a shift away from a one-size-fits-all approach based on testosterone levels towards a principled methodology that is judged on a sport-by-sport basis, with the sports science and medicine community playing a pivotal role in this ongoing journey.
- National Collegiate Athletic Association (“NCAA”)
In 2022, the NCAA updated its Transgender Student-Athlete Participation Policy permitting transgender athletes to participate in teams that correspond to their affirmed gender [the gender that matches gender identity]. The NCAA adopted the same sport-by-sport approach, following the International Olympic Committee.
Reaction and Response: Athletes
The sport-by-sport approach has been welcomed with vehement criticism. As an advocate against the inclusion of transwomen in the women’s division of sports, former University of Kentucky swimmer Riley Gaines, gained notoriety for criticising the NCAA’s decision that allowed Lia Thomas, who is transgender, to compete against Gaines in a women’s championship race.
Reaction and Response: Charities
The charity, Women in Sport (“WiS”), are keen to ensure that the integrity of competition is sustained at all levels, to minimise risk of injury of collision sports and that no one self-excludes due to a sense of competitive injustice in fear of injury. WiS reasons that it is impossible to ignore the evidence that the average transgender woman will continue to have significant size, strength, and cardio-vascular advantages over the average natal women. Even after 36 months of hormone therapy, when haemoglobin levels have reduced to levels we see in natal women, strength, lean body mass and muscle area in transgender women remain above those of natal women. This has implications both for health and safety in collision sports and opportunity to win in competitive sports.
WiS advocates that for global sporting organisations and national governing bodies must listen to the voices of both natal and transgender women and map out a path, based on science, that better appreciates the complexities involved.
Reaction and Response: Political
This contentious debate has transgressed into the political world and is being used as a tool to rally support. In the US, University of Pennsylvania swimmer Lia Thomas became the latest transgender athlete caught in the debate’s crosshairs after she became the first openly transgender athlete to win an NCAA Division 1 national championship in any sport in March 2022. The Republicans utilised the debate surrounding trans women in sports in the hope of revving up their conservative base ahead of November’s midterm elections in 2022. ust across the Atlantic, in the UK, Prime Minister Rishi Sunak stated that “biological sex really matters” and highlighted the ‘unfairness’ of transgender athletes competing against women in sport. Critics have suggested that this was an attempt to appeal to his grassroot memberships to gain more votes ahead of the next general election (2025).
Conclusion
Both parts in this article have demonstrated that the ongoing debate surrounding the expansion of mixed-gender sports is a complex and multifaceted one, with passionate arguments on both sides. At its core, this discussion revolves around issues of gender and sex discrimination, as well as the pursuit of fair competition. The debate surrounding the expansion of mixed-gender sports is far from resolved. It's a complex issue that involves considerations of fairness, safety, gender equality, and the role of biological differences in athletic performance. Finding a balance that accommodates the goals of inclusivity and fair competition while addressing concerns about safety and fairness remains a significant challenge for sports organizations and policymakers around the world.