The Problem with Outright Eligibility Bans of Trans Women in Women's Elite Sport

Science and legal precedent support reasonable accommodations for regulated inclusion

Note: This post summarizes my talk at Play the Game 2022 in Odense, Denmark on 29 June 2022. -RP

Debate over the participation of transgender athletes in elite sport has heated up over recent weeks after the governing bodies for cycling and swimming issued new regulations for who can participate in the men’s and women’s competition categories. Both organizations – UCI in the case of cycling and FINA for swimming – justified their policies in terms of current scientific understandings. What might be confusing is that UCI and FINA came up with seemingly contradictory regulations for the regulation of trans women, when each had access to the same science.

Sharron Davies, a British Olympian swimmer, celebrated the new swimming policy: “FINA made the decision that transgender women cannot compete against women in swimming,” and she wants the ban expanded across all sports. In contrast, the UCI has proposed testosterone suppression to compensate for any unfair advantage that trans women might have. These different approaches each acknowledge that scientific understandings are incomplete. FINA thus relied on an elicitation of experts to propose that any advantages can never been mitigated, while UCI looked at the same body of science to propose that advantage can be mitigated. Both cannot be correct.

Even though it is well understood that men almost always outperform women across most Olympic sports, issues surrounding the regulation of trans athletes (and women in particular) remain characterized by scientific uncertainties and ignorance. This is for several reasons.

Everyone agrees on the definition of an “unfair advantage”

First, we lack knowledge first on the degree of advantage that trans women may have over other women within different sports and the specific competition disciplines within those sports. We do know that in a sport like weightlifting the gap between men and women is large, but in a sport like archery it is small to negligible. In sports that emphasize female athleticism — like women’s gymnastics, synchronized swimming and ice dancing — women may even have a performance advantage. There has been exceedingly little research done specifically on performance of elite trans athletes, most significantly because there are so few.  

Second, we have almost no knowledge of the performance mitigating effects of medical interventions and their safety to athlete health. Consequently, when sports organizations have selected thresholds for allowable testosterone levels in trans women, they have “guesstimated” based on observed measures of testosterone across populations of men and women, and not any clear understanding of the effects of testosterone on mitigating actual performance.

Last fall, the International Olympic Committee issued a framework for sports federations with guidelines for implementing regulations on trans athletes. Among these guidelines include a requirement that “any restrictions arising from eligibility criteria should be based on robust and peer reviewed research.” That means research should (a) be focused on studies of trans men and women and (b) quantify competitive advantages (or not) and any risks to athlete safety. Such robust research doesn’t presently exist.

Science Matters. Law Matters.

Fortunately, sport, like most areas of policy and regulation, has well-established precedent for how to deal with decision making under uncertainty and ignorance. The emotion and heat of the debate over trans athletes in sport has overshadowed important legal and jurisprudential context that has been almost completely missing from public discussion — which unfortunately often has a tendency to reflect our worst political instincts.

When the various gender eligibility regulations are ultimately challenged before judges and arbitrators, decisions will be made on legal principles, not primal instincts. Here is a quick summary of what law and precedent suggest may be key in the coming legal battles.

• First, the Court of Arbitration for Sport (CAS) has ruled in multiple cases that the concept of an “unfair advantage” does not refer to physiological characteristics, but to actual performance in competition. This understanding is also consistent with the guidelines of the IOC Fairness Framework, the various sport gender regulations themselves and relevant academic research.

• Second, CAS has ruled that the burden of proof for establishing an unfair advantage lies with those who wish to exclude an athlete from competition, so in this case that would be with the sports federations. The burden of proof thus also likely extends to responsibility for establishing the relative success or failure of mitigative measures (like testosterone suppression) that are proposed to remove the unfair advantage (although here it gets a bit more complicated, based on precedent with the application of so-called “therapeutic use exemptions” for substances that athletes take for health reasons but may also be performance enhancing — more on this in a later post).

• Third, if sports organizations cannot meet the burden of proof to show an “unfair advantage” – either because the research is inconclusive or that is simply hasn’t yet been done – CAS has ruled that the default position is to include. Default inclusion is also consistent with broader understandings expressed in human rights instruments and relevant international agreements. That means that the UCI regulations are in apparent conformance with this precedent, while the FINA regulations are not.

• Fourth, CAS has ruled explicitly that a “precautionary” policy of banning certain athletes (either formally or effectively) until research is done is not acceptable.

• Finally, under CAS precedent for the inclusion of disabled athletes running on “cheetah blades” who wish to enter Olympic competition, sports organizations must make “reasonable accommodations” for their inclusion, which requires making scientific and fairness judgments about performance advantages. This principle has not been adjudicated in the case of trans athletes, but it is logical that if trans athletes can be reasonably accommodated then they should be included. Exclusion in the presence of reasonable accommodations would no doubt be judged to be disproportionate discrimination.

Of course, to be completely realistic, international sports law under the Court of Arbitration for Sport is a sort of Wild West of jurisprudence. There is no guarantee how a small panel of arbitrators might choose to interpret precedent (or even to recognize precedent), and there are examples of cases where relevant science and law has been ignored.

As well, we have seen sports organizations openly challenging the guidelines of the IOC Fairness Framework, which has an uncertain standing among the federations under the IOC. It is also conceivable that gender eligibility rules will be challenged in forums beyond CAS. So there is no telling how legal challenges to new participations regulations will eventually play out.

But one thing we should all be able to agree on – Issues surrounding trans athletes generate a lot of passion, but passion is a poor substitute for evidence and law when putting into place regulatory policies that affect the lives of everyone involved.

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