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Changes to the Game? Transgender athletes' participation in competitive sport

Posted on 19 January 2021

Introduction

Testosterone and sport have a complex and nuanced relationship, which has evolved significantly over time. In recent years, we have seen greater regulation in relation to transgender athletes' testosterone levels from sporting governing bodies, federations and associations (Sports Bodies). This comes as Sports Bodies adapt to reflect and (in some cases) drive societal, cultural, ethical and moral changes. 

Sports Bodies have increasingly had to consider athletes' testosterone levels beyond the outdated sex classifications of 'man' and 'woman'. Traditionally, this meant each sex competing in their own sporting categories of 'man/men's' and woman/women's'. However, this distinction is increasingly behind the times, particularly in relation to the participation of transgender athletes in sport. As societies' views have developed, this has been to differing degrees between sports and countries. As a result, we see a range of (at times) conflicting regulatory frameworks for transgender athletes. Again, this has been to differing degrees and extents, suggesting further progressive changes may be required.

Ahead of our own panel event, 'Changing the Game: Transgender Participation in Competitive Sport',  there is no doubt that transgender rights are rightfully increasingly at the centre of equality, opportunity, inclusivity and diversity discussions. The interaction between sport, testosterone levels and the rights of transgender athletes cannot be considered solely within these three areas. Instead, it is within a broader social context (where themes of openness and tolerance also play a role) that we must consider transgender athletes' rights to participate in sport.

In particular, to assess the interaction between sport, testosterone and transgender athletes, we look at recent developments from the International Olympic Committee (IOC) and within rugby union. Firstly, the IOC because it is common for national and international Sports Bodies to use the IOC's regulations as the basis for their own. Secondly, we look at the contrasting approaches between the Rugby Football Union (RFU), which is the governing body for professional and amateur rugby union in England, and World Rugby, which is the governing body responsible for the international governance and regulation of professional rugby union. Below we consider the differing approaches of these Sports Bodies, and offer some final thoughts about the role of sport in advocating transgender rights and participation in sport.

International Olympic Committee (IOC)

Given the platform, breadth and scope of the IOC's regulatory influence, any consideration of transgender athletes' rights must surely begin with the IOC. At present, the IOC's transgender policy allows:

  • transgender male athletes to participate in the male category with no restrictions, and
  • transgender female athletes to participate in the female category, if certain conditions are satisfied – these include testosterone level in her serum must be below 10 nmol/L for at least 12 months prior to and for the duration of her competing.

Rugby Union – World Rugby and the RFU

There is discrepancy in the regulatory approach to transgender athletes' participation between the RFU and World Rugby. Critically, this highlights the issues resulting from the lack of a uniform (or at least aligned) legal framework for transgender athletes at the national and international level. 

The current World Rugby transgender guidelines provide that:

  • transgender male athletes can participate in men's rugby if he (i) has a certification of physical ability, and (ii) possesses a valid medical exemption (known as a Therapeutic Use Exemption (where necessary)); and
  • transgender female athletes cannot participate in women's rugby.

In comparison, the RFU's transgender policy allows:

  • transgender male athletes to participate in men's rugby; and
  • transgender female athletes to participate in women's rugby, if testosterone level in her serum is below 5 nmol/L for at least 12 months prior to and whilst competing.

Analysis of Sports/Sporting Bodies decisions

There are three main themes that we wish to highlight from the different regulatory positions adopted by the IOC, the RFU and World Rugby in relation to the participation of transgender athletes. These are: (i) Safety and competitive fairness versus inclusivity, (ii) National versus International, and (iii) Outright ban – a precursor to future legal disputes?

  1. In relation to the first theme, it is clear that a great deal of deliberation has taken place by World Rugby and the RFU regarding transgender athletes, particularly in relation to balancing athlete safety and competitive fairness against the desire for rugby to be an inclusive and diverse sport. On the one hand, World Rugby banned transgender female athletes (for safety reasons which it bases heavily on its scientific findings). On the other, the RFU policy adopted a more progressive, inclusive approach to allow transgender female athletes to participate. As a result, whether Sports Bodies' regulations act as a driver for societal change or reflect societies may depend on the regulatory scope of the Sports Body and what it prioritises.
  2. The second theme looks at the geographical scope of the policies. It seems that due to differences on social, cultural, ethical and moral matters across the world, the policies differ depending on which level the Sports Bodies operate. The IOC and World Rugby both regulate member nations internationally requiring a wider scope where they adopt a more conservative approach. In contrast, helped by having a narrower scope by operating at the national level, the RFU's policy reflects an understanding of the UK's societal position. These differing regulatory positions indicate the difficulties (and perhaps impossibility) of imposing a globally uniform approach. However, we must ask whether there is more that Sports Bodies (including the three considered here) should be doing to encourage acceptance and inclusivity as well as best practice.
  3. Finally, with Sports Bodies adopting different policies to regulate the participation of transgender athletes in competitive sport we may see legal proceedings brought against Sports Bodies. This would likely be against the more restrictive and prohibitive measures. If so, this may lend itself to complex disputes and claims (similar to the Semenya case) brought against Sports Bodies based on discrimination and human rights. Specifically, areas of dispute may focus on the regulation's necessity, proportionality and reasonableness.

The three conflicting themes help show how sport interacts with social, cultural and political views across geographies and over time. At noted earlier, sport is representative of society, yet also drives change within society. With this in mind, should sport not also play its part in promoting acceptance and understanding of transgender rights?

Whilst there remain differences in approaches in a socially, ethically and morally complicated area with competing views and interests, the regulatory framework has developed. This reflects the breaking down of binary ideas of sex and gender, in certain geographies. However, it appears Sports Bodies may be regressing on the progress that has undoubtedly been made over the last few decades. This is seen with World Rugby's ban on the participation of transgender women in women's rugby and the IOC potentially reducing the testosterone limit for transgender women. Therefore, the path taken by Sports Bodies in the coming years will shape how sport approaches this topic longer term. Particularly, we should consider whether these regulatory decisions by the IOC and World Rugby which reduce transgender participation in sport are outliers and one-offs or suggest a broader regressive trend limiting inclusivity.

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