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By- Wilfred Synrem (Gujarat National Law University)
“Trans people deserve something vital; they deserve your respect. From that respect comes a more compassionate community.” –
Caitlyn Jenner (former Bruce Jenner); Gold winning Olympian and the epitome of the transgender community.
It is beyond doubt that the recognition and integration of all genders in today’s society is an absolute must. This also indicates the importance of, in particular, the inclusion of transgender persons in all realms of sports. The sacrosanct Olympic Charter speaks volumes of basic fundamental rights in modern sport: “without discrimination of any kind such as race, colour, sex, sexual orientation”. Based on the authoritative principles of the Olympic Charter it is deemed that the world of sport must do everything in its power to eradicate any sort of discrimination which is in violation of fundamental human rights. However, this is easier said than done; there are innumerous debates and issues regarding the topic of transgender in sex-segregated sports.
Before spelling out the legal and ethical issues of the same, it would be best to mention a brief history of controversial discrimination in sport, based on sexual orientation. Since time immemorial, women; let alone transgenders, were prevented from participating in the Olympics. As soon as women were included in the Olympics there was a fear amidst the issue that men may masquerade as women to gain an unfair advantage. This is where the fiasco started. It even went to the extent that ‘naked parades’ were a mandate for participation. As anticipated, two key events had taken place with Dora Ratjen (in 1938) and Foekje Dillema (in 1950) in regards to gender verification tests prior to their respective Olympic games. The former was caught to be a man whilst the latter Dutch athlete refused the mandatory sex test. Up until the Rome Olympic games of 1960, physical examinations formed the bulk of gender verification tests; however, a new Buccal Smear method (sex chromatin testing) was introduced since the start of the Mexico City Olympics, 1968.
The first high-profile case of transsexualism was of Renee Richards v United States Tennis Association in 1977. The legal issue contested here was whether a male who underwent a sex-reassignment surgery was competent to participate in a woman’s tennis tournament. Fortunately for her, the New York Court had granted a preliminary injunction in her favour as her being barred from the competition was a violation of the State’s Human Rights Laws; thus preventing the defendants from conducting a sex chromatin test on her. Due to the ambiguous, unfair and unscientific nature of the chromatin testing, the International Association of Athletic Federation (IAAF) and the International Olympic Committee (IOC) abandoned these techniques; for the very fact that the tests did not determine the anatomical or psychosocial status of the athlete.
Thereafter, in order to introduce new guidelines, the IOC implemented a ‘Stockholm Consensus’ in 2003. It differentiated between the persons who underwent sex assignment surgeries before puberty and after puberty. For the first category, it stated that the new sex attained after the surgery was to be known as their new undisputed sex. However, for the next category, they placed three conditions as to the eligibility of the transgender sportspersons in their newly acquired sex group. They were as follows: (a) Surgical anatomical changes of the body had to be completed; (b) Official Authorities had to legally recognize their newly assigned sex; and most importantly (c) Appropriate hormone therapy was to be administered for a sufficient period of time i.e. for at least two years.
It is very apparent from those guidelines that there was bound to be a clash between transgender sportspersons and authorities which based its principles similar to that of the IOC’s. The following pertinent examples elucidate the same. Kristey Worley, a Canadian transgender cyclist took the Union Cycliste Internationale (UCI) to the Human Rights Tribunal of Ontario, where she challenged the discriminatory nature of the gender tests. She claimed that not only did the formalities damage her ability to compete in tournaments but also affected her health. In this case, the tribunal ruled in her favour. Another prominent athlete, Martine Delaney, formerly known as Martin Delaney, was under fire as to whether she could participate in the Soccer Tasmanian’s Women’s league. Fortunately for her, both Tasmanian and Australian Soccer bodies made valid her participation as it was not in contradiction to IOC’s guidelines. Lana Lawless, a trans (man to woman) golfer was discriminated when the Ladies Professional Golf Association introduced a rule “female born only” in order to block her participation. As soon as a lawsuit was filed, the association scrapped out the rule from its by-laws and appreciated the entry of Lana irrespective of her powerful drive of more than 250 yards.
Another debatable question which arises out of this sensitive topic is what about the women who are actually sexually female but have high testosterone levels? Should these women also be tested, if doubted, as males? Maybe not; but ascertaining the truth opens a Pandora box of difficulties. This uncertainty found two unfortunate victims in Shanti Soundaranjan and Caster Semenya. It was alleged that 800m silver medalist Soundaranjan was sexually a male and her medal was stripped off. The authorities did not cite which test she actually failed; in fact, Shanti had a genetic defect which did not produce testosterone in her body. In comparison, Caster Semenya in 2009 had better luck than our previous victim. Although she was charged with the same allegation she passed her gender tests. Nonetheless, it was gross injustice and discrimination to put actual women through these tests who weren’t ever transgender.
To address issues such as high testosterone levels of women, IAAF came up with another discouraging Guideline called the IAAF Regulation Governing Eligibility of Females with Hyperandrogenism to compete in (Women’s) Competition commonly known as the “Hyperandrogenism Rule” in 2011. This brought both transgender women and high testosterone females within its ambit. Any woman with testosterone levels higher than the certain threshold was bound to be examined and tested. In other words, the rule spelt out immorality in its most innocent manner. It did not come into place until 2015, where this rule was challenged in the case of Dutee Chand v AFI & IAAF. Here, the athlete Dutee Chand was prevented from competing in the Commonwealth and Asian Games of 2014 due to relatively high testosterone levels. The other two important legal and scientific issues discussed in the case were:
- Did the Hyperandrogenism regulations defeat the Olympic charter, the IAAF charter and international human rights codes to the extent that it was blatantly discriminatory?
- Whether there was a definite scientific nexus between testosterone levels and athletic performance?
The Court of Arbitration for Sport (CAS) held that not only were the regulations prima facie discriminatory as they applied to females only, but also there was no scientific correlation between testosterone levels and athletic performances. Hence, in April 2015, Dutee Chand won interim relief as the IAAF suspended Hyperandrogenism regulations for two years. CAS directed IAAF the interim period to come up with scientific evidence about the quantitative relationship between enhanced testosterone levels and improved athletic performance in hyperandrogenic athletes.
After this judgment of CAS, IOC finally held a crucial meeting on Sex Reassignment and Hyperandrogenism, in November 2015. But the new transgender guidelines were silent on females with testosterone levels greater than normal. The guidelines can be summed up as follows: Female to male transgender persons could “without restrictions” participate in the male events. However, for the male to female transitions, the athlete’s testosterone levels must be kept under 10 nmol/L for 12 months prior to her first competition. Nonetheless, the highlight of the document was that the surgical anatomical changes to the human body were not compulsory.
In conclusion, it has been an uphill journey to include the transgender man-woman into the world of sport. Yet the work is cut out for other sporting authorities like the Football Association (FA) or the Union Cycliste Internationale (UCI), which have similar by-laws. The ultimate objective of the transgender rules is to get rid of masqueraders who try to cheat the game. Therefore, on one side of the scale, we have the need to eradicate masqueraders and the other side, the urge to remove discrimination against females who genetically have high testosterone levels. We need to remember that if hyperandrogenic females were to be restricted from participation, then by that definition there should also be a threshold for height in a basketball game because height beckons advantage. Say bye-bye to all the Michael Jordans and the LeBron James. To be more specific, why should our genetic variations be a determinant as to participate in any sport? In my opinion, they should be accepted as God’s gift to sports like Michael Phelps’ incredible torso length or Ian Thorpe’s flipper sized feet.
All in all, the supposed right answer to this issue would probably be out by the end of this month when the IAAF comes up with scientific proof that there is a relationship between high testosterone levels and athletic performance. In fact, the IAAF would be probably submitting a report to the Court of Arbitration For Sport, titled ‘Serum androgen levels and their relation to performance in track and field’ which was authored by Dr. Pierre Yves Garnie (director of IAAF Health and Science Department) and Dr. Stephanie Bermon. A major finding of this report is that “in 400 m, 400 m hurdles, 800 m, hammer throw and pole vault, female athletes with high testosterone levels benefit from a 1.8% to 4.5% competitive advantage over other female competitors with normal androgen levels.”
After some serious thought, I have a question for you, dear reader: If there is no scientific common ground between testosterone levels and athletic performance, don’t you think that the IOC’s guidelines for a male to female conversions should also be scratched out?
By -Wilfred Synrem ( Gujarat National Law University)
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Tags: athlete, CAS, Caster Semenya, Court Of Arbitration for sports, Dutee Chand, hormone therapy, hyperandrogenism, IAAF, International Association of Athletic Fedration, International Olympic Committee, michael jordon, michael Phelphs, olympic, Olympic Charter, sport, Stockholm Consensus, trans-gender, Transgender