The Emerging Consensus on Transgender Athletes in Elite Sport

An emerging consensus over eligibility guidelines takes shape in law, policy and science

The “fairness framework” of the International Olympic Committee. Source: BJSM

As readers here will know, the issue of the eligibility of elite transgender athletes is one that stirs passions and quickly moves from a narrow issue of sport governance to a cultural and political flashpoint. But beyond the noise, the anger and the politics a robust consensus is emerging in law, policy and science. This should be a boring, technical, niche issue — as are most issues of classification in sport. Politics and culture mean that it is anything but.

For those who may have missed my earlier discussions of this topic, here is a summary of earlier posts, with links. I encourage you to have a look, if you haven’t already:

• Making Sense of Debate Over Transgender Athletes: Part 1

• Making Sense of Debate Over Transgender Athletes: Part 2

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

• A "Cap Tie" Rule for Elite Trans Athletes

• Is Opposition to Trans Athletes Really About the Old Testament?

Recently, there have been some important developments that point towards an emerging consensus on regulated inclusion — versus anything goes (e.g., self-ID on race day) or an outright participation ban. Let’s review.

Yesterday saw a notable U.S. court judgment. The U.S. Second Circuit Court of Appeals “upheld a student athletic policy in Connecticut allowing transgender students to play on the teams most consistent with their gender identity.” This lawsuit is critically important, not least because it was brought by the Alliance Defending Freedom, “"a conservative Christian legal advocacy group that works to curtail rights for LGBTQ people.” The lawsuit sought to overturn a Connecticut athletic policy allowing transgender students to participate in sport in their current gender classification. The ADF sought to invalidate the policy, in addition to claiming damages for several former athletes who participated in high school sport under the policy.

The judgment, which is worth reading in full, rejected these arguments and to the contrary, supported the Connecticut athletic inclusion policy:

Some Courts of Appeals have taken it further and held that treating transgender students consistent with their sex assigned at birth -- as the CIAC [Connecticut Interscholastic Athletic Conference] and its member schools would be doing if the Policy were terminated -- violates Title IX.

This statement was followed by a recitation of relevant case law, after which the court concluded:

Although these cases from our sister circuits do not address the exact issue of participation of transgender athletes on gender specific sports teams, such authority nonetheless establishes that discrimination based on transgender status is generally prohibited under federal law, and further supports the conclusion that the CIAC and its member schools lacked clear notice that the Policy violates Title IX.

Dozens of U.S. state legislatures have enacted laws requiring schools for purposes of sport eligibility to treat students in accordance with their sex assigned at birth, not at the time of participation in sport. The Second Circuit judgment yesterday foreshadows a showdown — via Congress, the Supreme Court or executive order (listed in increasing order of likelihood, in my view) — over the legality of blanket discrimination against transgender students in sport.

For now, it seems clear that there is an emerging legal consensus that holds that treating transgender athletes consistent with sex recorded at birth rather than current gender violates Title IX. Watch this space.

Another important development occurred in Ohio, where a proposed law banning trans athletes from participating in scholastic sports in a gender category other than that recorded at birth failed in the wee hours of the morning:

Under the current rules, the Ohio High School Athletic Association has transgender athletes undergo a year of hormone treatment or demonstrate they have no other physical advantages in order to compete.

HB [House Bill] 151 would have required students to play on the sports teams that correlate to the gender listed on their birth certificate. A previous version of the bill would have required examinations of "internal and external reproductive anatomy" for anyone whose gender was questioned.

The failure of this legislation is perhaps surprising because Ohio is a deeply Republican state and its House is controlled by Republicans, 64-35. Time will tell whether this legislative failure is unique or marks a breaking of the fever that has gripped Republicans across the U.S. seeking to use scholastic sports as a wedge issue.

Transgender athlete eligibility in scholastic sports was not a particularly compelling issue for Republicans in the U.S. 2022 elections, showing up at the bottom of the table above. Source: Navigator.

One reason for the changing mood among politicians may be the fact that anti-trans rhetoric and policies may have actually worked against Republicans in the 2022 election. The image above shows polling data from the recent 2022 elections, indicating that Republicans weren’t all that motivated by trans athletes and sports, and instead were focused on more important policy issues such as the economy, crime, immigration, energy and so on (Duh, but I digress.).

The Washington Post reports:

In the most recent election, at least 21 candidates and political action committees running in 16 states ran anti-transgender television ads as part of their campaigns. Many lost their races, including Tudor Dixon in Michigan, Kari Lake and Blake Masters in Arizona, Doug Mastriano in Pennsylvania, and Herschel Walker in Georgia; other anti-transgender candidates lost school board elections. Some political commentators have questioned whether focusing on transgender youth was winning over voters.

There are other recent developments as well:

• Next week, Scotland will decide on a new Gender Recognition Reform Bill that proposes to codify rights and work against discrimination.

• The International Olympic Committee has just published a position statement in the British Journal of Sports Medicine making the case for regulated inclusion rather than outright bans, representing a more public stance by the IOC on these issues than it has recently taken.

• A few months ago World Triathlon announced its new policy, which emphasizes regulated inclusion (as well as a version of a cap-tie rule), over an outright ban.

Each of these developments suggest growing momentum behind policies focused on regulated inclusion. Predictably, the vocal anti-trans lobby — which includes a number of tireless academics and scientists — are quite upset about the recent developments, and I’m hearing about it every time I discuss these issues online. Nastiness online is nothing new, but from my vantage point, seeing it up close and personal on this issue does help to bring into stark relief that the issue of trans athletes is, for some, part of a broader campaign against LGBTQ people.

But take note. The notion of regulated inclusion of trans athletes in elite sport is not a magic solution. There will remain difficult decisions to be made, and regulation means that some people will be judged ineligible to compete in the category that they wish to compete in. I note that my proposal for a “cap-tie” policy is not welcomed by some trans activists.

In the end, working to develop policies for inclusion via reasonable accommodations, consistent with evidence and data, in order to mitigate unfair advantages in performance, will always be a far more ethical and appropriate approach than seeking to ban an entire class of people based simply on who they are. That is exactly the sort of blunt discrimination that society has been working to eliminate for generations. Let’s keep at it.

I welcome your shares, comments and questions.

To read more:

Martowicz M, Budgett R, Pape M, et al. Position statement: IOC framework on fairness, inclusion and non-discrimination on the basis of gender identity and sex variations British Journal of Sports Medicine Published Online First: 16 December 2022. doi: 10.1136/bjsports-2022-106386

Pielke, R. (2022), "Making Sense of Debate Over Transgender Athletes in Olympic Sport", Greey, A.D. and Lenskyj, H.J. (Ed.) Justice for Trans Athletes (Emerald Studies in Sport and Gender), Emerald Publishing Limited, Bingley, pp. 31-43. https://doi.org/10.1108/978-1-80262-985-920221003