Making Sense of Debate Over Transgender Athletes: Part 2

The core debate is over whether trans female athletes should be banned from women's sport or have their participation regulated

This post is Part 2 of a series on transgender athletes. Please have a read of Part 1 here and come back here to pick up the argument.

In my book The Edge: The War Against Cheating and Corruption in the Cutthroat World of Elite Sports I argue that one of the outdated values that is often invoked in various sports controversies is that of the “purity of sport” — an idealized view that sport is (or should be) free from the impurities that contaminate normal life. We see this value invoked in many debates in sport, such as amateurism (money), doping (clean vs dirty athletes), national affiliation (changing citizenship), blades and other technologies in athletics (enhancement) and of course in the calls for athletes to stay out of politics. The value of purity reflects what I argued in Part 1 to be an essentialist view — that there is something fundamental and everlasting about the reality of sport that dictates how it should be conducted.

Despite such romantic views of sport, the real world doesn’t bend to essentialist claims and in practice, pragmatic realities rule. Sport is after all, a social construction from start to finish. The games we play are an invention, and as such we are free to reinvent them as however we see fit. Such reinventions occur all the time — like we saw last week when the U.S. Supreme Court altered NCAA “amateurism” forever. Of course, the “we” here is all of us, and since “we” don’t often agree about everything we resolve our differences procedurally and politically.

This brings us to the issue of trans athlete participation in sport. For some people, this too is an issue of purity of sport, in this case based on the immutable facts of human biology which, they argue, dictate that sport categorization of men and women must — must — occur due to certain biological characteristics. Of course, debates in sport, as is often the case, reflect debate ongoing across society. Increasing gender fluidity has led to conflicts over topics as diverse as who can pee in what public bathroom and who is eligible for state-supported medical care.

Before proceeding let me introduce some of my core assumptions, which I have discussed in depth elsewhere, and won’t spend time elaborating on here (but if you have any questions, you can easily find me on Twitter).

• Sex and gender are different concepts, but they are of course deeply inter-related. Sport places males and females into categories based on their gender, which typically coincides with sex, but not always. Sex testing is a phenomena of the past half century and has been given new life as the issue of trans athletes has become controversial.

• Sport has a long history of exclusion. Modern Olympic sport was created for “the solemn and periodic exaltation of male athleticism with internationalism as a base, loyalty as a means, art for its setting and female applause as reward.” Greater inclusiveness — of women, black, disabled, poor, etc. athletes — has been hard fought, but the arc of history is clear.

• Males typically have advantages over females in sport performance in those activities that emphasize male athleticism (such as strength and speed). This does not preclude the possibility that there are or could be sporting contests that prioritize female athleticism — that is, activities for which female physiology provides a performance advantage, such as events of women’s gymnastics, where rules favor skills of young (sometimes too young) girls.

• Having male and female sport categories therefore not only makes sense (or else there’d be no women in most elite sport!), but that is what sport and society have decided upon and it won’t change anytime soon. We can thus reserve for a graduate seminar discussions of creating a single open category for all or new competition categories for third or fourth genders.

• Trans females likely retain some performance advantages over females, even after undergoing various medical treatments. In a recent scientific consensus statement that I participated in drafting, we concluded, “Further research investigating the impact of hormone therapy on performance of sport-specific actions in trans athletes is required.” But for purposes of this discussion, let’s just assume some retained advantage.

With that background, we can then cut to the meat of the issue. How should sport govern the issue of trans athletes in sport? Here I will focus on elite sport, but there are of course issues at all levels. The one level where the issue should be easiest to deal with is children’s sport, where male-female categorization is probably unnecessary.

Here is the key question: Should trans athletes be allowed to participate in mainstream sport under the gender category that they are recognized in broader society?

There are only three answers to this question:

• No, they should be banned

• Yes, but participation must be regulated

• Yes, unconditionally

While there are some who advocate “yes, unconditionally” the main debate on this issue is between banning and regulation. My position is that regulation is the only approach consistent with human dignity as expressed in IOC policies, international law and the values expressed by the Olympic Movement.

Here is what the Olympic Charter says about inclusion:

The practice of sport is a human right. Every individual must have the possibility of practising sport, without discrimination of any kind and in the Olympic spirit, which requires mutual understanding with a spirit of friendship, solidarity and fair play.

Some argue that this simply means that sport needs to create a “separate but equal” competition for trans athletes, along the lines of the Paralympics, which offers competition opportunities for disabled athletes. But the Paralympics are actually an instructive example as to why a “separate but equal” argument fails.

The Paralympics exist to provide an additional opportunity for disabled athletes, not as a substitute for “mainstream” sport. In fact the U.N. Convention on the Rights of Persons with Disabilities makes clear that “reasonable accommodations” must be made in order to “encourage and promote the participation, to the fullest extent possible, of persons with disabilities in mainstream sporting activities at all levels.” Of course, what is and is not “reasonable” is the subject of debate.

For instance, athletes who compete on prosthetic legs — such as Oscar Pistorius, Marcus Rehm and Blake Leeper — have sought to secure inclusion in mainstream Olympic sport, with different outcomes. But as a matter of jurisprudence, the Court of Arbitration for sport has ruled against a blanket ban from mainstream sport of athletes who run on prostheses and has instead invoked the importance of criteria of inclusion that each athlete must meet to secure their participation.

For trans athletes, sport governance, international law and sport jurisprudence all point in the same direction: an outright ban of certain individuals from participating in elite sport within the gender category that they are recognized by in broader society and law, would be highly unlikely to stand. Of course, there are more than a few — especially among the far right in the United States — who are trying to alter laws to create legally enforceable bans on the participation of trans individuals in many elements of society, including sport.

The IOC has since 2003 recognized that inclusion of trans athletes is one of several valued outcomes, writing in 2015: “It is necessary to ensure insofar as possible that trans athletes are not excluded from the opportunity to participate in sporting competition.” At the same time the IOC recognizes that regulations are necessary and important to achieving another valued outcome, fairness: “The overriding sporting objective is and remains the guarantee of fair competition. Restrictions on participation are appropriate to the extent that they are necessary and proportionate to the achievement of that objective.”

Is it possible that sport governance organizations such as the IOC will change course and in the future seek to implement a blanket ban against trans females participating in women’s sport? Sure, it’s possible. That is what many are campaigning for. But I don’t think such campaigns are likely to succeed (caveat lector!). Instead, at their worst, such campaigns serve primarily to demonize individuals, inflame right-wing politics and to suggest that a certain class of people deserves to be discriminated against.

So, as a matter of policy, law and jurisprudence the IOC is presently expected to make “reasonable accommodations” to enable the participation of trans athletes in “mainstream sport” and restrictions on participation are appropriate if they are “necessary and proportionate” to achieving a balance between fairness and inclusion.

Indeed the IOC has expressed its intention to do just this, explaining in 2020 that following Tokyo it would review its trans athlete policies and recognizing that they have no easy task:

Overall, the discussions so far have confirmed considerable tension between the notions of fairness and inclusion, and the desire and need to protect the women’s category. Opinions are very diverse and difficult to reconcile, and perceptions differ strongly. The new IOC guidelines will have to balance all of these.

In Part 3 of this series I will discuss what a sport-specific process might look like to achieve reasonable accommodations for the inclusion of trans athletes in mainstream competition in their societally-recognized gender category, recognizing that there will be inevitable trade-offs between inclusion and fairness. One thing we can be sure of — as IOC medical and scientific director Richard Budgett commented: “This is a very difficult and sensitive process and there is no easy answer. Whatever is put in place will undoubtedly upset a lot of people and the views are very different.”