The participation of trans athletes in sport – a transformation in approach?

This article discusses the issues surrounding participation of trans athletes in sport, in particular in light of the new International Olympic Committee (IOC) Transgender Guidelines. The author, Liz Riley, is a barrister in Bird & Bird's Sports Group and has advised sports governing bodies on this issue at both national and international level. She assisted the IOC with the production of its new Transgender Guidelines, and also represented the IAAF in relation to a recent challenge to its rules governing the eligibility of female athletes with hyperandrogenism to compete in women's competition (Chand v AFI & IAAF, CAS 2014/A/3759). All views expressed in this article are the author's own.

Bruce (now Caitlyn) Jenner won a gold medal in the men's decathlon at the 1976 Olympic Games. However, she is perhaps now better known for her recent 'coming out' as transgender.

In doing so, she highlighted an issue that the sports world is having to grapple with on an increasingly frequent basis, namely, how to deal with the participation of trans athletes in sport.

This is very much a live issue, from grass roots right up to the elite level (for example, Chris Mosier recently became the first openly trans man to make a US men's national team, competing in the sprint duathlon at the Duathlon National Championships).¹

This article considers the key issues that arise in relation to the participation of trans athletes, the different approaches taken by sports governing bodies (including the recently-revised IOC Transgender Guidelines²), the interplay with national laws, and some of the legal challenges involved. It is intended to provide further insight into this complex area, and the author welcomes further comment and discussion on this important topic.

For the purposes of this article, the umbrella term 'trans' is used to refer to individuals whose own gender identity is different from the biological sex assigned to them at birth (whether or not they have undergone any form of medical intervention).

The key issues

The vast majority of sports divide competition into male and female categories.³

This is due to the significant physical advantages enjoyed (on average) by men from puberty onwards,⁴ which at elite level result in a gulf in sports performance between the sexes. For example, the world records in athletics show an average performance difference between men and women of around 12%.⁵

These physical differences between the sexes are thought to be due, principally, to the much higher levels of testosterone produced by males from puberty onwards, giving males greater strength and power than females.⁶ As a result, separation of the sexes is therefore required to allow for fair and meaningful competition, as well as to address potential health and safety concerns (for example, in contact sports).

This notion of fair and meaningful competition goes to the very essence of what sport is about. It reflects the underlying need to preserve the uncertainty of the sporting outcome, with success being determined by those particular factors that are valued by the sport in question (such as natural talent and training).

And it is this need that underlies the various dividing lines that are drawn in sport, such as age and weight categories, and the numerous Paralympic classifications. It would not, for example, be fair or meaningful for a flyweight boxer to compete against a super heavyweight boxer: there is little doubt who would win, and it would not celebrate any worthwhile sporting values.

Similarly, if women were required to compete against men, they would have very limited opportunities to succeed (at least at the elite level), and would not be rewarded for their sporting excellence or incentivised to make the sacrifices needed to reach their potential.

How do trans athletes fit in to the male/female athletics categories?

The division of competition into male and female categories raises a number of issues when it comes to the participation of trans athletes in sport:

1. It is generally accepted that prior to puberty (when male and female testosterone levels are similar) there is little physical difference between the sexes,⁷ and mixed sex sport is often permitted (for example, the English FA allows mixed football up to the under 18 age group). Accordingly, there appears to be (and should be) little issue regarding the participation of trans athletes, in line with their gender identity, at this stage.

   For example, many international and national bodies (including World Rugby, the International Tennis Federation, the English FA and the Rugby Football League) allow individuals who have undergone female-to-male sex reassignment before puberty to participate as males, and individuals who have undergone male-to-female sex reassignment before puberty to participate as females, without restriction.⁸

2. After the onset of puberty, however (when male serum testosterone levels increase to around ≥10 nmol/L, while female testosterone levels remain at around 0.1-3.08 nmol/L),⁹ the physical advantages enjoyed by men raise fairness and safety concerns in relation to the participation of trans athletes in line with their gender identity.

   In particular, there are concerns that a male-to-female transsexual might have an unfair performance advantage over other women (raising concerns as to fair competition and the safety of competitors), whereas a female-to-male transsexual might be thought to be at a disadvantage compared to other men (raising safety concerns in relation to their own participation). Sports governing bodies have to decide how best to address these difficult issues.

Comments (2)

• Nic van

  • 26 February 2016 at 18:34
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  Do the new transgender guidelines open up the possibility for all female athletes to participate in male competition if they choose to?

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• Kirsti Miller

  • 28 March 2018 at 00:14
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  Could you please enlighten me in what science was used to determine 12 months of reduced testosterone levels for XY Transitioning and XY Transitioned females by the IOC when they amended their trans par guidelines?
  
  Also for reference the term transsexual was outdated years ago and considered offensive to transgender people.
  
  The umbrella term Transgender can no longer be used it is far to broader term these days for sports policy development as there are massive differences in the endocrine system and physiology between XY transitioning and transitioned females.
  
  Barb Currey TRANGENDER AFLW NON POLICY
  XY women (fully transitioned) are the only athletes competing unhealthy in a complete androgen deprivation state and well beyond a (post menopause state). Incredibly unhealthy and spore eventually becomes impossible as the body deteriorates as it cannot respond to day-to-day functions without androgens as the bodies primary communications and regulator hormone.
  
  Moreover and important, the XY transitioned female is the only body that can show the health and key markers where the body turns on then off, as the body loses its ability to regulate androgens.
  
  Which then causes complete androgen deprivation of the human body, heavily contraindicates it as testosterone plays over 200 functions in the body every single day separate of the sex of the physiology.
  
  A transitioning XY Female (pre op) are hypgonatic, not feeling full effects of complete androgen deprivation and plus 2 dozen contraindications because they still have gonads. If they were a HP athlete prior and during continued transition minimising the advantage in women's competition away takes even longer years longer.
  
  There are still many questions to be answered in relation to the participation of transitioning and transitioned XY Females and XX Males, this is defiantly a work in progress. Not many people are aware that the IOC created the current transgender guidelines in half a day with no science or research. They did this as a hip response to lesson liability in Kristen Worley's human rights case in the divisional court in Canada. The current transgender and intersex IOC & WADA policies and guidelines are not based on any science. There were 90 people involved in the IOC Consensus Meeting in 2015 most people were sports officials with no qualifications to even be in this meeting and they defiantly are not medically qualified to write policies relating to the health and welfare of all female athletes globally.
  
  Kristen's victory in Toronto exposed both WADA and the IOC's policies to have breached human rights of many female athletes and their current policies continue to do so. Kristen's case also identified that both WADA & the IOC do not even have the right starting point in this conversation it is so much more then testosterone levels the full diversity of human physiology must now be fully considered when new policies are developed. There is a long way to go in this conversation.
  
  There are many sporting organisations considering the future direction of global sport none more so then world cycling and the Commonwealth Games Committee, they are doing a lot of work in this area. The days of just believing the IOC and WADA have all the answers has long gone the recent Russian Drug fiasco is a clear example of what the IOC don't know. Kristen's victory showed sports can't start writing these type of policies starting from a human rights focus they must have the science and research first.
  
  During my discussions with both Australian and international colleagues I feel the direction of global sport will involve having one gender policy for all women no matter their chromosomal makeup. Every group of females may have different criteria to compete but sport will start from the point that everyone is firstly acccepted and they are only denied the right to compete if they have a proven unnatural advantage.
  
  I also see the future of some sports being separated on abilities and physical attributes similar to the way the Paralympics separate sports.
  
  There is no doubt that XY Males on average have an advantage in strength speed and endurance. Just looking at all sports world sporting records clearly shows this to be true.
  
  In relation to Hannah and the AFL I would suggest the AFL completely ignore the IOC's Current guidelines because as I previously stated the IOC has admitted their policy was not based on any facts or science.
  
  The AFL is unlike any Olympic Sport it is a very high impact sport even more so for females I suggest. Recent studies haveshown females are more likely to suffer knee injuries and the impact and severity of concussions are more severe in female athletes.
  
  The greatest challenge for the trans and gender diverse communities is being accepted in female sports in particular high impact sports like Australian Rules Football. I suggest erring on the side of caution with all sports at the elite level or high impact sports like the AFL.
  
  Some sports like Australian Cycling have different criteria to be met at each level of their sport with local competitions having self identification as the only prerequisite to participation.
  
  I don't suggest this type of policy would work for the AFL because we are not just talking about winning or losing we are talking about the health and safety of all participants. On this point this is where I believe the AFL has made the biggest mistake with Hannah allowing her to play at the local level but not at the elite where the other players are stronger, fitter and more developed then the grassroots players.

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