*Written by Raj Shah
Introduction
In the contemporary era of gender fluidity and equality, this study examines the evolution of gender identity in competitive sports globally. Beginning in the 20th century, how the participation of Transgender athletes in competitive sports increased over time. Further, the study looks at the evolving policies governing the inclusion of Transgenders at the Inter-collegiate level (NCAA), Interscholastic level (SIAA) and then the International level (IOC). This paper looks at the efficiency of Title IX and the Equal Protection clause by citing some successful cases. Towards the end, the paper seeks to formulate and propose recommendations to sporting authorities for a more inclusive environment in the context of India to revamp the structure of sports in India. The most essential barriers which Transgenders across the globe face while entering the sporting federation are biological. Inclusion of Transgenders in competitive sports becomes difficult because of numerous reasons, mainly the notion of ‘unfair competitive advantage’ that Transgender males hold over female athletes. It also requires to be taken into consideration, of the tangible and intangible issues. It is further noticed that in India, there is no suitable definition for Transgender individuals in sports.
History of Transgender sports:
Until the 19th-20th century, women were not educated and societies were patriarchal in nature. Women were forced to stay home and do the domestic household whereas men worked. Women who were educated were not exposed to participating in sports. Women's participation in different spheres increased after World War 2. Women's participation enhancement was a result of the changes in the cultural attitudes which was brought through the women’s civil rights movements of 1970. The All American Girls Baseball league substituted the Major Baseball league which was cancelled due to WW2 as a step to increase female participation and prohibit sex segregation. Women finally broke the realm of female sports participation. Further, as time passed and as contexts and awareness of gender fluidity and equality spread, cases of Transgender males and Transgender females came about. “Transgender describes an individual whose gender identity (someone's internal psychological identification as a boy/man or girl/woman) does not match the person's sex at birth (natal sex). For example, a male-to-female transgender person is someone who was born with a male body but who identifies as a girl or a woman. A female-to-male transgender person is someone who was born with a female body but who identifies as a boy or a man.”[1]At all levels of sports, the beneficial outcomes of sports namely women empowerment and gender equality had been constrained largely due to gender-based discrimination. The discrimination in sports began right from inter-school and collegiate level sports where transgender individuals were not allowed to participate. High school and college are formative years of an individual’s life whereby individuals transform and question their gender identity. Hence, it became imperative for the governing body to ensure provisions for the inclusion of transgenders in sports. Many individuals could not come out of the closet and reveal their gender identity because they feared being judged, and they would not be able to enjoy the opportunities they would have otherwise enjoyed, for e.g. : Playing and excelling in a competitive sport. Until late 2011, most inter-college, inter-school and other professional sporting leagues did not have any policies or provisions for the inclusion of transgenders in sports. Perhaps, in September 2011, the NCAA ( National Collegiate Athletic Association ) took the lead in ensuring “the need for standards to ensure that the transgender student-athlete does not encounter problems with participation due to inconsistent rules for state eligibility, conference and tournament eligibility, and national competitive tournaments. Furthermore, inclusion, equal opportunity, and acceptance should be the goals when establishing such standards.”[2]
BODY
The IOC, NCAA and SIAA Policies Governing Transgenders:
The emergence of female competitive sports brought about a change in the policy dynamic of various competitive leagues, competitions and associations. The most essential one was the IOC, IAFF, NCAA, etc.
The IOC had gotten stricter after the inclusion of transgenders in sports. “In the 1960s, the IOC implemented sex- verification testing, focusing on female sports since the prevailing belief at the time was that the competitive advantage went in one direction-there could only be an athletic advantage for males competing as females, and not the reverse. The verification initially consisted of a humiliating visual examination of female athletes' genitals. In 1968, chromosome testing was introduced, but it was replaced by DNA-based testing in 1992.”[3] It was further concluded that the sex verification testing was a humiliating, damaging and harmful experience for the individuals undergoing the test and it did not accommodate the minute features of distinction commonly known as the continuum between males and females. In early, 2013 an IOC medical commission meeting was held in Stockholm to provide recommendations on the participation of transgenders and the inclusion criteria. “The Commission concluded that to participate with the gender he or she currently identifies with (1) the athlete must have had sex reassignment surgery at least two years prior to the competition; (2) the athlete must be legally recognized by the appropriate authorities as a member of the athlete's new sex, and (3) cross-sex hormones must have been administered in a verifiable manner and for a sufficient length of time to minimize any associated advantages in sports competitions as determined on a case-by-case basis.”[4] However, an individual needs to comply with the World Anti-Doping code after complying with the IOC guidelines. An athlete is said to have violated WADA guidelines if any consumption of a prohibited substance is detected. Although, if an athlete is consuming prohibited substances for medical reasons and has a Valid Therapeutic use exemption (TUE), then this would not fall under the category of violation of WADA guidelines.
The National Collegiate Athletic Association (NCAA) which essentially governs Intercollegiate athletics had no formal policy clarifying the participation of Transgenders in sports. The NCAA primarily relied on the designation of sex based on state classification. “The NCAA based an athlete's sex on his or her state classification, such as that found on a driver's license, taxes, voter registration, etc. If an athlete who has a male state classification participates on a women's team, the team is classified as a "mixed team" that is ineligible for the women's championship in that sport.”[5] Although, the NCAA’s Executive Committee meeting in August 2011 concluded that a new policy for transgender athletes' participation would be approved.
“A trans male (female to male) student-athlete, who has received a medical exception for treatment with testosterone for gender transition, may compete on a men's team, but is no longer eligible to compete on a women's team without changing the team status to a mixed team. A mixed team is only eligible to compete in men's sports championships;
A trans female (male-to-female) student-athlete being treated with testosterone suppression medication for gender transition may continue to compete on a men's team, but may not compete on a women's team without changing it to a mixed team status until completing one calendar year of documented testosterone- suppression treatment.”[6] The NCAA did not have a clear justification as to why it changed its policy, however they believed in providing transgender individuals the rights they deserved. They believed in non-discrimination on the basis of caste, creed, sex or religion. It is believed that a Transgender female (male as their natal sex) had an unfair competitive advantage over a cisgender woman due to the high testosterone level that men hold since birth. NCAA analysed this matter carefully and came to a conclusion that an individual’s height, strength, body and hormones don’t essentially put an individual at an advantage all the time. The director of the NCAA gave an example naming “Paul Sturgess and Muggsy Bogues.”[7] Paul Sturgess was 7 feet 8 inches tall and was the tallest basketball player in history represented Mountain State University in Division 1 of the Intercollegiate competition, however, he has seen on the bench throughout the competition while his teammates who were much shorter than him played regularly. Muggsy Bogues, a 5 feet 3-inch professional basketball player set a conference record for the maximum number of assists and was called upon by the US national team to represent the US.
Under the State Interscholastic Athletic Association (SIAA), every state had separate associations with voluntary members that coordinate and regulate athletic competitions. Different states followed different transgender inclusion policies. This includes Birth Certificate Policy, Hormone Policy, Gender Consonant Policies, etc.
The birth certificate policy largely looks at a transgender's gender identity as what is shown on the birth certificate. “One's biological sex is determined at birth on the basis of factors such as chromosomes, hormones, and genital and other physical characteristics.”[8] While most people’s gender identity aligns with natal sex, many undergo transition after puberty or come out of the closet at a later stage. Thus, this policy is known as a “policy that limits young people's opportunities according to their birth-assigned sex necessarily precludes transgender youth from gender-consonant participation, that is, playing sports "as who they really are.”[9] States which follow this policy, namely Mexico, Alabama, Texas, etc allow amendments on the birth certificates only after the individual has undergone genital reconstructive surgery.
The Hormone policy requires a transgender individual to get hormonal tests done and undergo certain treatments. The NCAA “permits transgender female athletes to compete on women's teams after one year of treatment that suppresses endogenous male hormones, also known as androgens, including testosterone. By contrast, the NCAA policy permits transgender male athletes to participate on men's teams without requiring hormones; but at the same time, the policy disqualifies them from women's teams as soon as they commence hormone treatment with exogenous testosterone.”[10]
The Gender Consonant policy was adopted by twelve states including California, Massachusetts and Nevada. This policy is modelled by the Washington Interscholastic Athletic Association (WIAA). “The process requires an eligibility determination by a ‘gender identity eligibility committee’ convened by the athletic association whose role is to determine that the student's gender-identity claim is bona fide.”[11] Further, the policy demands the student to submit certain documentation which proves their gender identity. The documents may include “affirmed written statements from the student and/or the student's parent/guardian.”[12]
Title IX and The Equal Protection Clause:
“The Equal Protection Clause of the Fourteenth Amendment prohibits government entities and other state actors from discriminating against citizens on the basis of sex”[13]
In the case of “Glenn vs Brumby”[14], Glenn suffered from Gender Identity Disorder, and he further decided to transition from male to transgender female. Glenn informed her supervisor about this decision and agreed to work as a woman. Although, her supervisor terminated Glenn’s employment. Glenn filed a case under the Equal Protection Clause whereby “the court acknowledged that discrimination against a transgender individual because of her gender- nonconformity is sex discrimination, whether it's described as being on the basis of sex or gender.”[15]
“Title IX forbids discrimination on the basis of sex in public and private colleges and universities that receive federal funding. In the athletic context, the statute has been read as mandating equity in athletic programs for men and women in secondary schools and postsecondary educational institutions.”[16] Title IX protects all kinds of students, may they be gays, lesbians, or transgenders, from sex discrimination. The cases of Renee Richards and Michelle Dumaresq were fought and won under the laws of Title IX, Anti-discrimination law and the Equal Protection clause.
The case of male to female transgender “Richards vs U.S. Tennis Association”[17]examines how the American Tennis player Renee Richards challenged the United States Tennis Association (USTA) requirements of possessing X chromosomes which would enable Richards to play in the woman’s draw. “The USTA decided to require athletes to undergo sex-verification testing and to employ chromosome-based testing specifically for the purpose of excluding Richards.”[18] They backed their argument by focusing on the fact that Transgender female has a competitive advantage over natal woman playing the woman’s category. USTA also argued that gender identity tests were imperative in order to guard sex-segregated sports against impostors who compete in woman’s sports like men in order to reduce competition and increase their chances of winning. Richards filed a suit alleging on the grounds that USTA policy violated the Anti-discrimination Law of New York. The court’s decision was in favour of Richards, whereby he was allowed to compete in the woman’s category in the US Open. He lost in the semi-finals which again explains that Female transgenders do not have an unfair competitive advantage.
Another example would be that of Michelle Dumaresq, a Canadian Mountain Biker. A male-to-female transgender who started competing in women’s events six years after her surgical transformation. “Though the regional, national, and international governing bodies of cycling have endorsed Dumaresq's participation in women's events, commentators have criticized and competitors have protested Dumaresq's inclusion.”[19] One of the opponents protested on the podium after being runners-up to Michelle.
As compared to Male to Female Transgender, this category has fewer examples. Alyn Libman transitioned from female to male influenced by testosterone. He further competed as a male transgender on the University of California-Berkeley skating team.
CONCLUSION
In a country like India, being the second most populated country in the world having diverse backgrounds and cultures, there are high chances of people coming out as transgender. “Articles 15 and 16 of the Constitution also prohibit discrimination against any citizen on certain enumerated grounds including the ground of sex.”[20]“Article 19(1) of the Indian Constitution provides for freedom of speech and expression including right to express self-identified gender”[21] However, having such fundamental rights in the constitution, transgenders face indirect violence, face and body discrimination and are not allowed to compete at par with individuals of their gender. The Transgender Persons Protection of Human Rights bill 2016 was essentially introduced in order to protect rights of the transgender individuals. Chapter I of the bill looks at the definition of Transgenders. “Chapter II (Section 3) provides for the prohibition against discrimination in relation to education, employment, health services, right to movement, right to enjoy goods and services, right to reside, unfair treatment and also to acquire public office.”[22]Chapter III (Sections 4-8) provide recognition of identity to Transgenders. However, even after having such a bill in place, Indian Transgender athletes are not accepted as who they really are. The definition provided in the bill is provided in a broad context where laws for Transgender individuals are at par with Transsexual individuals or Transvestites (cross-dressers). An example of Indian transgenders who faced criticism includes Pinki Pramanik, a transgender female who had records of winning gold in the Asian Games and silver in the commonwealth games. Pinki was stripped down of her medals after a forced gender test and was known as a male for having extra male hormones. Another example would be the case of Shanti Soundarajan, a silver medallist athlete in the 800 m category. She was forced to take a gender test at the Doha Olympics which she failed. Although, the Olympic Council of Asia and the Athletics Federation of India did not release any information about the kind of tests which Shanti was forced into. The way Renee Richards and Michelle Dumaresq found their way was by appealing to the court under the Equal Protection clause, Anti-discrimination laws, and Article IX in the US. Same way, India must have a monolithic regulatory body regulating the inclusion of Transgender sports and allow them the rights they deserve under the aforesaid Articles. In order to ensure the inclusion of Transgender rights, provisions need to be made from the base level which includes the Intercollegiate level, the state and national level and then the International level. Beginning with State and National level competitions, it would be in a transgender athlete's best interest if all the states followed a uniform policy as most athletes faced difficulty participating in sports competitions held in other states having different policies. This could essentially be encouraged by having a uniform National Athletic Transgender Athlete Policy. Another provision, which could also be followed by the Intercollegiate competition authorities would be that students at a young age should be allowed to play with the gender they are comfortable with. It would be practically impossible for a student to fake his gender identity at that age. This method would further reduce the chances of faking one's gender in the future and help in ensuring fair play.
*The author is a law scholar at Jindal Global Law School, Sonipat, India.
(The image used here is for representational purposes only)
References:
[1] Griffin P and Carroll HJ, “Equal Opportunity for Transgender Student Athletes ”(Women sports foundation: On The Team October 4, 2010) <http://www.womenssportsfoundation.org/wp-content/uploads/2016/08/transgenderstudentathletereport.pdf>
[2] Ziegler EM and Huntley TI, “It Got Too Tough to Not Be Me: Accommodating Transgender Athletes in Sport” (2013) 39 Journal of College and University Law 470
[3] Ziegler EM and Huntley TI, “It Got Too Tough to Not Be Me: Accommodating Transgender Athletes in Sport” (2013) 39 Journal of College and University Law 477
[4] Ziegler EM and Huntley TI, “It Got Too Tough to Not Be Me: Accommodating Transgender Athletes in Sport” (2013) 39 Journal of College and University Law 470
[5] Buzuvis EE, “Transgender Student-Athletes and Sex-Segregated Sport: Developing Policies of Inclusion for Intercollegiate and Interscholastic Athletics” (2011) 21 Western New England College School of Law 23
[6] Rozenberg ES, “The NCAA's Transgender Student-Athlete Policy: How Attempting to Be More Inclusive Has Led to Gender and Gender-Identity Discrimination” (2015) 22 Sports Lawyers Journal 201
[7] Rozenberg ES, “The NCAA's Transgender Student-Athlete Policy: How Attempting to Be More Inclusive Has Led to Gender and Gender-Identity Discrimination” (2015) 22 Sports Lawyers Journal 204.
Examples referred from this paper.
[8] Buzuvis EE, “As Who They Really Are: Expanding Opportunities for Transgender Athletes to Participate in Youth and Scholastic Sports” (2016) 34 Law and Inequality: A Journal of Theory and Practice 343
[9] Buzuvis EE, “As Who They Really Are: Expanding Opportunities for Transgender Athletes to Participate in Youth and Scholastic Sports” (2016) 34 Law and Inequality: A Journal of Theory and Practice 344
[10] Buzuvis EE, “As Who They Really Are: Expanding Opportunities for Transgender Athletes to Participate in Youth and Scholastic Sports” (2016) 34 Law and Inequality: A Journal of Theory and Practice 345
[11] Buzuvis EE, “As Who They Really Are: Expanding Opportunities for Transgender Athletes to Participate in Youth and Scholastic Sports” (2016) 34 Law and Inequality: A Journal of Theory and Practice 349
[12] Buzuvis EE, “As Who They Really Are: Expanding Opportunities for Transgender Athletes to Participate in Youth and Scholastic Sports” (2016) 34 Law and Inequality: A Journal of Theory and Practice 349
[13] Buzuvis EE, “As Who They Really Are: Expanding Opportunities for Transgender Athletes to Participate in Youth and Scholastic Sports” (2016) 34 Law and Inequality: A Journal of Theory and Practice 355
[14] Glenn v. Brumby, 724 F. Supp. 2d 1284, 1296 (N.D. Ga. 2010).
[15] Ziegler EM and Huntley TI, “It Got Too Tough to Not Be Me: Accommodating Transgender Athletes in Sport” (2013) 39 Journal of College and University Law 501
[16] Ziegler EM and Huntley TI, “It Got Too Tough to Not Be Me: Accommodating Transgender Athletes in Sport” (2013) 39 Journal of College and University Law 499
[17] Richards v. U.S. Tennis Ass'n, 400 N.Y.S.2d 267 (N.Y. Sup. Ct. 1977).
[18] Buzuvis EE, “Transgender Student-Athletes and Sex-Segregated Sport: Developing Policies of Inclusion for Intercollegiate and Interscholastic Athletics” (2011) 21 Western New England College School of Law 14
[19] Buzuvis EE, “Transgender Student-Athletes and Sex-Segregated Sport: Developing Policies of Inclusion for Intercollegiate and Interscholastic Athletics” (2011) 21 Western New England College School of Law 16
[20] The Constitution of India, 1950, Art. 15,16.
[21] The Constitution of India, 1950, Art. 19(1).
[22] Bhushan M, “Analysis on Transgender Persons (Protection of Rights) Bill” [2016] India Law Journal <www.indialawjournal.org/analysis-on-transgender-persons.php>