Expert blog: Why World Athletics' transgender policies must balance science with the law
Dr Seema Patel, Nottingham Law School discrimination in sport researcher, discusses why the new World Athletics’ rules for transgender competitors should consider the human rights of athletes.
On 31 March 2023, World Athletics (WA) will ban trans female athletes who have been through male puberty from participating in female elite level competitions.
In its view, in the absence of sufficient scientific evidence that trans female athletes do not retain an advantage over biological women, president of WA Sebastian Coe expressed that the WA Council must be guided by the overarching principle of protecting the female category. DSD (differences in sex development) athletes also face tougher conditions to suppress their testosterone levels for a minimum of six months in order to compete.
The decision is disappointing but not surprising and does nothing to alter present gender status quo in sport. Those, like myself, who oppose a blanket ban have consistently argued that the science being relied upon to exclude gender diverse athletes is progressive but inconclusive; there is no evidence of trans female athletes dominating the female category; inclusion in recreational sport is being adversely affected; bans are contributing to a negative and mischaracterised narrative around gender diverse people.
The debate around the participation of gender diverse athletes in sport is complex but remains in its infancy, with developing research into the scientific, legal, and sociological issues around gender identity and inclusion. The increasing inclusion and legal recognition of gender diverse people in law and society is at odds with the arrangement of sport into binary male and female categories, premised upon biological notions of fairness, safety, and advantage.
Sport governing bodies have attempted to reconcile this conflict by introducing varying gender eligibility policies, ranging from exclusionary to inclusionary. Despite this piecemeal landscape of gender regulation, it is agreed that these should be live documents, subject to new findings, and sport context specific.
Governments have expressed an interest in the debate, which has contributed to intense media attention. A dangerous divide is emerging, and fairness and inclusion have somehow become opposing values. As part of this polarisation, important legal and regulatory considerations are being side lined. As we scope out the future implications of the WA ruling, the evolution of gender eligibility policies informs us that science alone cannot effectively resolve this, and the psychological, sociological, and legal implications of inclusion and exclusion need to be examined alongside biology. Two areas are worth highlighting:
The Working Group
Coe stated that further research into the guidelines will be conducted over twelve months, through the initiation of a working group, who will consult with the views of the trans athlete community and potentially engage in further research where necessary. He explained that the working group will include an independent chair, WA Council members, two athletes from the Athletes Commission, a trans athlete from athletics, three representatives of member federations, and representatives of the WA health and science department.
Working groups form a valuable part of policy making to ensure that decisions turn on fact, evidence and the voices of athletes and experts. The language and approach taken by policy makers is slowly shifting and there is some appreciation for the nuances of gender diverse athletes.
However, the composition of these working groups is critical, and the trans community voice seems to be minimal within this proposal. There is considerable support for trans female athletes, and those views should be given a platform in policy making. Furthermore, there is an absence of any independent law/regulation/human rights expertise in the proposal. It is impossible to consider gender diversity in sport without a balanced review of both the science and the law. Sport has a primary responsibility to lead well informed and open conversations about gender diversity.
There is an opportunity to shift the status quo and try approaching gender diversity from an inclusionary perspective. Principles of non-discrimination on the basis of sex and gender form an intrinsic part of human rights, which apply universally and must be taken seriously in sport. A stronger alignment between sport policy and human rights should be achieved in order to guarantee those rights for all athletes, not least marginalised gender groups.
WA announced that DSD athletes will be required to suppress their testosterone levels below 2.5 nmol/L for a minimum period of six months to satisfy eligibility. They claim that this is supported by more than ten years of research evidencing a physical advantage in the female category. Previous iterations of these regulations have been challenged by athletes such as Dutee Chand and Caster Semenya, who argued that the rules were discriminatory and unreasonable. Their treatment prompted the global evaluation of the sport gender eligibility rules.
The over reliance on testosterone as a measurement for athletic performance and misconceived interpretations of largely contested science, continues to be scrutinised. Moreover, even if the science was settled, the rights of the athlete are being neglected in this policy making, and the ability of sports bodies and sport arbitration to sufficiently deal with human rights matters is being reviewed.
The DSD restrictions are potentially incompatible with law and human rights concerning human dignity, bodily integrity, self-determination, privacy, and consent located within international human rights instruments. Concerns have been raised about this shortfall and the wider treatment of vulnerable, often young athletes under such policies. Although Chand was successful in her Court of Arbitration (CAS) case against WA in 2015, Semenya’s challenge has taken a legal turn, with an appeal to the European Court of Human Rights (ECtHR). The decision is currently pending but reinforces the idea that this is also a human rights matter.
A consistent theme throughout this analysis is that athletes and experts should be unified in this discussion, to align fairness and inclusion, rather than at the cost of one group over another.
Dr Seema Patel
Senior Lecturer, Nottingham Law School
Read Seema’s research Gaps in the protection of athletes’ gender rights in sport—a regulatory riddle