Gender Dysphoria, Transgender Athletes, and the Law: Navigating the Intersection of Sports, Science, and Human Rights

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19 hours ago
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Written By Prabhav Garg*

A. Introduction:

‘Gender’ as a spectrum has been an ever-evolving concept, and while massive strides have been made to make the term more inclusive, trans and gender-diverse athletes still face scrutiny in different walks of life. Participation in competitive sports and adequate recognition by sports governance bodies remains a distant dream for trans and gender-diverse athletes. This issue has particularly sparked debates about the alleged competitive disadvantages possessed by LGBTQIA+ athletes being in the crosshairs of their right to feel comfortable in their skin and be treated as equal citizens of this planet. These issues have been further highlighted through the high-profile cases of Dutee Chand, the Indian sprinter who challenged hyperandrogenism policies in the Court of Arbitration for Sports (CAS); Caster Semenya, the South African sprinter who challenged the IAFF’s policy to undergo medical intervention to supress testosterone levels in female athletes, championing her right to bodily autonomy; and Imane Khelif, the Algerian boxer who faced public scrutiny for being falsely alleged to be a biological male, and subsequently got disqualified from competing at the World Championship. These cases highlight the intrinsic legal and ethical dilemmas surrounding sex-based eligibility criteria and the human right of self-determination.

This paper aims to dissect these challenges, with an outlook towards the legal and social ramifications faced by trans and gender-diverse athletes, primarily focusing on the intersection of gender dysphoria, medical transitioning and sex-based classification. The first section of this paper analyses how Hormone Replacement Therapy (HRT) and testosterone levels are alleged to impact performance, as well as the broader debate regarding biological advantages versus gender identity. Analysing cases such as that of Caster Semenya, Dutee Chand and Imane Khelif will expose the regressive approach adopted by the sports governance bodies like the International Olympic Committee (IOC), which has systematically eliminated and sidelined transgender, gender-variant and androgynous athletes.

The research paper discusses the restrictive policy measures adopted by sports governance bodies. It further demonstrates that these policies lack scientific backing, and the claims concerning the competitive advantage stem from outdated or limited research available on the topic, thus requiring revision of existing policies. It further dissects these policies, looking towards the established Human Rights Principles, such as bodily autonomy, and the right to self-determination, and examines whether these policies are in sync with these considerations.

Lastly, this paper discusses the societal impact of policy decisions and legal rulings on transgender and androgynous sportspersons. It seeks to establish whether the existing frameworks reinforce outdated gender norms or are a pathway towards inclusion and progress. By gauging the prevalent legal challenges, evolving policy and legal frameworks, and societal progression, this paper aims to provide a nuanced understanding of how laws need to create a balance between scientific realities and fundamental human rights, paving a gender-inclusive space in sports.

B. Hormones and Performance Debate:

To determine the eligibility of transgender and gender-dysphoric athletes, Hormone Replacement Therapy (HRT) has become a key determinant. In common parlance, it is a medical treatment given to individuals who identify themselves with a gender other than the one assigned to them at birth. These individuals are administered hormones, which help in balancing their sexual characteristics with their desired gender identity. In competitive sports, HRT is used to bring athletes’ hormonal levels in line with the guidelines established by sports governance bodies such as the IOC. It is also more prevalent in the cases of trans or androgynous women than in the case of men. Usually, trans women or women suffering from disorders of sex development (DSDs) are made to undergo HRT to reduce their testosterone levels to that of an average cisgender woman. However, the key debate remains whether HRT provides a conclusive measure to balance the needs of transgender and androgynous athletes and ensure fairness in competition for cisgendered athletes. Various studies have been conducted to determine whether hormones, particularly testosterone and oestrogen, provide any competitive edge to athletes. As Ghosh and Chanda (2020) write, “Sports for women usually compete for the beauty of movement while sports for men compete for power, speed, strength and risk.” They write that men typically have the intrinsic ability for a higher androgen exposure than women, due to their higher muscle mass, height and strength. However, transitioning individuals, as per the systematic review conducted by Jones, Arcelus, Bouman, and Haycraft (2017), transgender athletes or athletes transitioning from Male to Female (MTF), experience a reduction in muscle mass, speed and strength, and haemoglobin levels. This, as they conclude, does negatively affect the endurance of transgender athletes; however, this may vary due to a variety of factors such as age of transitioning, baseline fitness levels and genetic dispositions. Supporting this is the empirical study conducted by Roberts, Smalley, and Ahrendt (2021), which involved transgender and cisgender women who serve in the U.S. Air Force. It was found that despite undergoing HRT for over a year, transwomen held at least a 9% advantage in running endurance, and some advantages in upper body strength in comparison to cisgender women. While this study suggests that HRT significantly reduces any physiological disparities, it is still not uniform owing to the adopted timeframe mandated by sports organisations and governing bodies such as the IOC and World Athletics. “This finding suggests that governing bodies for sporting competition should require more than 1 year of testosterone suppression before competition when creating guidelines for inclusion of transwomen in women’s elite athletics” (Roberts et al. 2021). The study holds that biological legacy, such as skeletal muscles gained during puberty, may remain despite hormonal suppression, and thus, it is important not to merely look at the guidelines about the participation of trans athletes based on their hormones. Despite this, the IOC’s 2021 guidelines enforce a threshold of testosterone suppression of below 5 nmol/L for a year. These guidelines have been subject to heavy criticism due to their lack of scientific evidence and being arbitrary. The study conducted by Roberts et. al (2021) also foreshadows the inadequacy of the IOC’s hormone suppression rule and suggests that alternative criteria or longer periods might be necessary to ensure fairness. It is further observed by The Centre of Sport and Human Rights (n.d.) that the IOC and World Athletics’ policies lack empirical robustness and disproportionately affect athletes from non-Western countries, where biological diversity may not align with the Western Norms. As observed, these criteria are highly discriminative, and cases challenging these policies primarily arise out of the non-western world, such as Caster Semenya, Dutee Chand and Imane Khelif.

Newer studies reflect that athletic performance and capabilities are multifaceted, influenced not only by testosterone, but genetics, training regime, diet, psychological factors and socio-economic conditions of the athletes. Ghosh and Chanda (2020) write that training intensity, nutrition and availability of facilities are key factors that account for differences in athletic ability. Moreover, Chanda and Saha (2022) highlight that natural testosterone variations are also observed in cisgender women, thus complicating the issue further.

C. The Evolving Legal Landscape

Various legal battles have been brought up challenging the validity and fairness of rules and regulations about transgender, intersex and androgynous athletes. Key cases in the field highlight the complex legal landscape surrounding transgender athletes, which includes anti-discrimination laws, human rights protection and sports governance policies. Courts have often struggled to balance between competitive fairness and balanced inclusion.

Dutee Chand, an Indian sprinter, challenged the hyperandrogenism policies of the IAAF (i.e. International Association of Athletics Federation, now World Athletics). The aforementioned rules required female athletes with naturally high testosterone levels to undergo medical procedures to lower them to compete in Women’s events. Chand, who was barred from competing in 2014, challenged the regulations. Primarily, as Chanda and Saha (2022) write, Dutee Chand’s legal team argued that the IAAF did not provide any conclusive evidence to prove that testosterone provided any competitive advantage. They further argued that the policy was discriminatory to women from the Global South, who faced DSD variations more commonly than in the West. Thus, the Court of Arbitration for Sports (CAS), in 2015, suspended the hyperandrogenism policies and issued a directive to the IAAF to submit further evidence within a period of 2 years. Subsequently, on 19 January 2018, CAS made a media release, stating that it had suspended the hearing for 6 months, thus also suspending the IAAF Hyperandrogenism Regulations for the meantime. This came as a result of the draft revised regulations submitted by the IAAF, which would only apply to female track events between 400 metres to 1 mile. Subsequently, CAS supported the draft revised regulations and sought IAAF to advise them on how these new regulations would be implemented (“ATHLETICS – DUTEE CHAND CASE,” 2018). This interim ruling established CAS’s hesitance towards overturning sports governance precedence, despite its acknowledgement of the prevalent scientific gaps. By limiting the policies to certain events, CAS endorsed event-specific testosterone testing, which paved the way for World Athletics to establish such thresholds. However, while CAS accepted these policies, they carried their share of controversies. A key case in this regard is that of Caster Semenya, a two-time Olympic Champion from South Africa, who challenged them at CAS for being sans scientific evidence and discriminatory. Semenya, in the past, had also been forced to undergo gender verification and doping tests by the IAAF after winning the 800-metre race at the 2009 Berlin IAAF World Championship (Athletics) (Chanda and Saha, 2022). Despite being cleared of doping, the authorities had concerns about her endogenous androgens aiding her performance, due to her DSD issues (Chanda and Saha, 2022). After the 2018 regulations came into place, Semenya was faced with two options: either to undertake the necessary medical procedure to suppress the testosterone levels in her body, or be forced to not compete in the events she had competed in internationally in the past. However, CAS, in this case, ruled that despite the regulations being discriminatory, they were essential for upholding the fairness of competition. Here, CAS, unlike the Dutee Chand case, upheld the regulatory authority of sporting bodies over human rights such as bodily autonomy, despite insufficient evidence being available (Centre for Sport and Human Rights n.d.). The ruling, despite being disputed, secured no interim relief for athletes such as Semenya, who were forced to fiddle with the natural body’s anatomy to compete. The case of Imane Khelif acts as another instance of the flawed gender verification system. Khelif, a biological female boxer from Algeria, was disqualified from the 2023 Women’s World Boxing Championship 2023 over unverifiable claims of being a biological male. Chanda and Singh (2021) highlight several key issues in the Imane Khelif case. Firstly, due to the lack of any robust system or testosterone threshold in boxing, competitors are arbitrarily excluded from participating. Furthermore, Khelif had to face massive public stigma and suffered from gendered and racial discrimination. Furthermore, it enforced the societal conception of the ‘perceived femininity’, and the societal exclusion of any female who falls out of such perception.

The cases highlight a cyclical pattern, where legal victories are foreshadowed by sports authorities, who tend to assert their restrictive policies. It also reflects on the global dynamic of sports, where the so-called ‘first-world countries’ are still seen as the ‘benchmark’ in establishing rules and regulations in the sporting world.

D. The Role of IOC and Human Rights Conversation:

Global sports governance bodies such as the IOC have faced a mammoth task to reconcile the lack of scientific evidence, competitive fairness and human rights in its policies for transgender and androgynous athletes. Such regulatory exclusion has put athletes in the crosshairs of their right to self-determination versus the opportunity to participate in sporting events.

IOC policies reflect the tension between ensuring fairness and inclusion. The 2003 Stockholm Consensus has been criticised for being invasive and exclusionary as it requires transgender athletes to undergo genital surgery and legal gender recognition (Jones et al, 2017). The 2015 guidelines, while dropping surgery mandates, introduced testosterone limits, moving into a more evidentiary approach (Johnson, 2022). However, such an approach was not only exclusionary for transwomen but also for women with varying DSDs. The 2021 Framework, while many consider to be a progressive step towards acknowledging the lack of scientific evidence, has given federations unequivocal powers to determine standards and rules for trans, intersex and androgynous athletes' participation, which may lead to a systematic elimination of athletes worldwide where there is negligible recognition of trans individuals and their rights. IOC’s policy to suppress testosterone is in clear violation of Human rights principles such as bodily autonomy (United Nations, 1948, Article 3) and non-discriminatory principles (United Nations, 1948, Article 7). As discussed, the policies lack scientific evidence, highlighting the lack of the IOC’s commitment towards inclusion and increasing participation of trans and intersex athletes in competitive sports. Sport Governance bodies’ actions further supplement such claims. Firstly, by admitting that the IAAF’s ruling was discriminatory, the CAS has set a dangerous precedent for justifying exclusion (Chanda and Saha 2022). Secondly, by excluding women like Imane Khelif from competing, the governance bodies not only adhere to the societal standards of ‘femininity’, but also demonstrate how gender policies can be weaponised against gender-non-conforming individuals. Even Semenya was subject to media scrutiny due to her appearance, sparking stereotypes that a ‘real woman’ must look a certain way (Ghosh and Chanda, 2020). The conflict about transgender and intersex athletes extends beyond laws and science. There exists a deeper-rooted influence of public perception and society’s attitude towards gender diversity. Prevalent policies reinforce binary notions, completely excluding trans, intersex and non-binary athletes. Further, the age-old perception that ‘sports are for men’ is reintroduced due to the scrutiny of testosterone being a determinant of athletic ability (Ghosh and Chanda, 2020). The concept of ‘determining athletic ability’ is only applied to women, as women with high testosterone levels are policed, while men with low testosterone levels do not face any consequences (Centre for Sport and Human Rights, n.d.). These policies completely ignore factors such as genetic composition and non-hormonal advantages. Furthermore, bans on transwomen are often justified on the grounds of protecting cisgender women’s opportunities (Johnson, 2022). No evidence proves that transwomen have a competitive edge in sports. Laurel Hubbard, a Canadian weightlifter, did not secure any medals at the Tokyo Olympics 2020. Lia Thomas, a trans-NCAA swimmer, was heavily scrutinised for transitioning to gain a competitive advantage and win more titles in the women’s division than they could in the men’s category. In the end, Lia won only one title, despite being ranked 5th nationally pre-transitioning. The stance of Sport Governance Bodies reflects the patriarchal control, which suggests that cisgender women are weaker and need protection (Ghosh and Chanda, 2020). Various leagues across the world, such as Ultimate Frisbee and Roller Derby, allow the athletes the right to self-determination, without mandating any medical requirement. This has resulted in a more inclusive environment, suggesting inclusion is indeed feasible (Centre for Sport and Human Rights, n.d.).

E. Way to Inclusive Policies:

It is the need of the hour that international sports governing bodies shift away from their regressive and discriminatory policies to evidence-based and rights-respecting frameworks, which should aim to strike a balance between competitive fairness and human rights. Bodies can let go of the blanket bans and instead invest in frameworks where individualised assessments are possible, acknowledging the complex interplay of physiological, genetic and socio-economic factors. It is well established by the research conducted by Roberts et al. (2021) that HRT’s effects are not uniform among trans athletes. Thus, instead of uniform testosterone thresholds across sports, a model like the NCAA’s hybrid model can be adopted, which permits trans athletes to compete, and the rules are established based on the sport they participate in (Johnson, 2022). However, to avoid bias, independent panels can be set up to determine the same. Furthermore, performance-based divisions like those found in boxing, wrestling and Mixed Martial Arts could be introduced to revolutionise sporting categorisation, and distance gender from athletic advantages. The categorisation can be expanded to include height, strength, or endurance tiers. This would also assist in the prevention of possible clashes with Human Rights, as such rules and regulations will comply with the same. It is pertinent to address the scientific gaps in present research. Longitudinal studies must be conducted to address the performance aspects of transgender athletes post-transition. Research methodologies shall be devised to prevent racial or geopolitical bias and to avoid targeting athletes from the Global South (Ghosh and Chanda, 2020).

F. Conclusion:

The intersection of gender dysphoria, transgender athletes and sports law presents one of the most contentious debates in present-day sports governance. Throughout, this paper demonstrates the failure of international bodies such as the IOC or World Athletics, who have time and again failed to make efforts to reconcile standards of fairness, inclusion and human rights. Legal frameworks, that were constructed with the intent of ensuring fairness, often inadvertently perpetuate exclusion and harmful stereotypes. The case studies of Caster Semenya, Dutee Chand and Imane Khalife are not just legal precedents, but also their stories of resilience, where it is not a fight against the system, but to revolutionise the system to let them live as their true, authentic self. Sport Governance Bodies have, since time immemorial, promoted unity, diversity and inclusion. However, the selective nature of inclusion, catering to the prevailing binaries, has barred many athletes from leading a life where they feel comfortable in their bodies. Legal challenges have brought in some progress; however, true progress can only be achieved through more incremental policy adjustments. Policies must look at each athlete as a whole person, and not merely a physiological makeup of bodies to be measured and regulated. It is important to foster a dialogue with the voices of those who are affected, embracing the uniqueness of every human being, to achieve a balance between ensuring fairness of competition and the dignity of each and every individual who steps into the field to compete.

*The Author is a legal Scholar from Jindal Global Law School, Sonipat, India

(The Image used here is for representative purposes only)

References:

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