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TRANSGENDERISM IN SPORTS IN INDIA: CURRENT LEGAL POSITION AND ANALYSIS

*Written by Kunwar Malhotra



Introduction


Rights relating to transgender athletes are a complex and evolving topic, particularly in the realm of sports. To ensure fairness, international governing bodies like the International Olympic Committee (IOC) categorize athletes based on their physiological differences and organize competitions along sex lines. However, this approach raises concerns about gender fraud and the potential for unfair advantages due to hormonal disparities. With the emergence of gender neutrality, the issue of transgender participation becomes even more intricate. Discrimination has plagued sports for a long time, prompting governing bodies to strive for fairness and bridge the gap of differentiation.

The IOC and other international federations bear the responsibility to address these challenges, which extend beyond restroom and attire considerations. In India, the rights of transgender individuals are protected, recognizing them as a third gender. The Indian constitution ensures justice and equality for every citizen, including transgender persons. The Transgender Person (Protection of Rights) Act, 2019, enacted by the government, prohibits discrimination in areas such as employment, education, and healthcare services. Additionally, welfare measures have been implemented to safeguard the rights of transgender individuals.



Gender and Sports:


The inclusion of transgender athletes in sports has been a highly debated topic in the West, with the International Olympic Committee (IOC) establishing specific conditions for their participation. While there are no restrictions for those transitioning to male, transgender women must maintain testosterone levels below a certain limit, and surgical transition is not mandatory. Recently, Laurel Hubbard, a 43-year-old transgender woman weightlifter, made history by representing New Zealand in the women's event at the Tokyo Olympics. This groundbreaking moment raised significant questions regarding inclusion, fairness, and the concept of gender-segregated competition.

In contrast, such debates are almost nonexistent in India, where there are few competitive transgender athletes, or at least few who are open about their identity. Gender-related discussions in Indian sports have primarily emerged when athletes fail the "sex verification test" and challenge arbitrary rules. Notably, in 2014, sprinter Dutee Chand was barred from competing as a female athlete due to her hyperandrogenism. However, the Court of Arbitration for Sport ruled in her favor, allowing her to compete in the women's category as it could not be proven that naturally occurring testosterone enhances female athletic performance. A similar incident occurred earlier when Asian Games medalist Santi Soundarajan was stripped of her silver due to failing a stringent gender verification test. Both Chand and Soundarajan identified as women.

It is worth noting that thus far, no Indian athlete identifying as transgender or having transitioned genders has actively pursued high-level sports. While India has seen limited representation in this regard, the need for discussions on transgender rights and inclusion in sports remains crucial to foster a more equitable and accepting sporting culture.[i]



Transgender Athletes Face Uphill Battle Against Discrimination and Hate


Ricki Coughlan, one of Australia's pioneering transgender athletes in professional running, expressed concern that the ruling in Western Australia (WA) would empower the "forces of hate" against transgender individuals. She stated that those who oppose the existence of transgender people would perceive this decision as a victory and proceed to target other aspects of transgender rights. Furthermore, WA also implemented stricter eligibility requirements for athletes with Differences in Sex Development (DSD) in women's events, reducing the upper threshold for testosterone levels. Advocates, such as Hudson Taylor from Athlete Ally, emphasized that this ruling would subject women with intersex traits to invasive testing practices, unnecessary surgeries, gender-based violence, and discrimination. While Australia's national athletics federation intends to comply with the WA decision, they will maintain their own guidelines for transgender athlete inclusion at the community level. New Zealand's federation stated that transgender athlete participation is a sensitive topic, requiring time to comprehend and assess the new regulations.[ii]



Landmark Decision: Kerala HC grants trans athletes the right to compete in their chosen gender.


· In a significant ruling, the Kerala High Court has affirmed that transgender athletes should have the opportunity to compete in their preferred gender category in the absence of a separate category. The judgment came in response to a case filed by a transwoman who was denied participation in a district-level Judo tournament based on her gender identity.

· Justice VG Arun, presiding over the case, emphasized that every transgender person deserves an equal right to participate in sports. The court firmly stated that if there is no distinct category for transgender athletes, they should be allowed to compete in the category of their choice.

· As part of its ruling, the Kerala High Court directed the tournament organizers to accept the petitioner's application and provisionally permit her participation in the competition. The final outcome of the petition will determine her continued participation in the tournament.[iii]



Santhi Soundarajan Case


The case of Santhi Soundarajan sheds light on the challenges faced by transgender individuals in India. Santhi, a woman from Tamil Nadu, had her silver medal from the 2006 Asian Games in Doha, Qatar, revoked after failing a sex verification test. As a result, she was deemed ineligible to compete in the women's category due to not possessing the typical sexual characteristics of a woman.

The Indian Olympic Association (IOC) instructed her to cease competing without providing detailed information about the specific test she had failed. Moreover, the Olympics Council of Asia was unable to produce all the necessary laboratory tests to substantiate their case against Santhi. This highlights a lack of responsibility on their part, as they stripped an athlete of her medal without sufficient evidence. Consequently, her rights were violated, and the government, which has an obligation to protect the rights of athletes representing the country, failed to fulfill its duty in this regard.[iv]


Regulations & Discrimination: Challenges Faced by Transgender Student-Athletes

Transgender athletes, including high school students, often encounter discrimination and controversy, primarily driven by parents of cisgender children. Claims are made that transgender girls are not "real" girls and have an unfair advantage in competitive sports. Some argue that transgender individuals should only compete against each other. According to a study conducted by Rasmussen in May 2019, a significant portion of Americans opposed letting transgender women participate in women's sports teams, while a smaller percentage supported the idea.

The NCAA has implemented policies for transgender student-athletes undergoing hormonal treatments for their gender transition. For trans males (FTM) undergoing testosterone treatment, they may compete on men's teams but are no longer eligible for women's teams. Similarly, trans females (MTF) undergoing testosterone suppression medication can continue competing on men's teams but cannot participate on women's teams without transitioning to mixed teams. Transgender student-athletes who are not undergoing hormonal treatment related to gender transitioning are typically allowed to participate in sex-separated sports based on their assigned birth gender.

In Connecticut, there have been notable cases involving transgender student-athletes Terry Miller and Andraya Yearwood, who participate on the girls' Track and Field team. Some parents of other female student-athletes argue that these transgender girls have an advantage due to being assigned male at birth. They have initiated petitions to change the rules and require transgender student-athletes to sit out for a year during hormonal treatment.

The intersection of regulations, discrimination, and the inclusion of transgender student-athletes remains a contentious issue, with differing perspectives on fairness and competitive advantages.[v]



Champion Sprinter Dutee Chand Stands Up for Transgender Athletes' Right to Compete


Dutee Chand, a renowned Indian sprinter and advocate for gender rights in sports, has voiced her support for transgender women athletes, stating that it is unfair for sports administrators to prevent them from competing simply because others struggle to accept their success at the elite level. Dutee emphasized the basic human principle that everyone, regardless of gender, has the right to play and compete. She believes that transgender athletes do not possess any unfair advantage during competitions and have already overcome significant societal pressure and humiliation to reach where they are today. Dutee urged for acceptance and understanding, highlighting that these athletes should be seen as a gift and that others should not meddle in the personal choices and experiences within an individual's body.


Recent decisions by sporting bodies such as FINA, the International Rugby League, and the International Cycling Union to restrict transgender women athletes from competing have prompted a review of transgender eligibility policies by organizations like FIFA, World Athletics, and the World Netball Federation. Dutee, who famously challenged the hyperandrogenism policy of World Athletics in 2015, believes that transgender athletes should fight for their rights, drawing inspiration from her own battle against gender discrimination in sports. She encourages them to pursue their cases and stand up against discriminatory practices, just as she did when she took the IAAF and AFI to the Court of Arbitration for Sport.


Dutee Chand's perspective highlights the importance of inclusivity, acceptance, and fair treatment for transgender athletes, emphasizing that their journeys and experiences should be respected and celebrated rather than hindered by unnecessary restrictions.[vi]



Transgender sports meet in Kerala


A groundbreaking transgender sports meet took place in Kerala, marking a historic event supported by the entire state. P. Sasidharan Nair, a member of the Administrative Board of the Sports Council and Joint Secretary of the Kerala Olympic Association, expressed pride in their pioneering efforts and emphasized the need for other states to follow suit and organize similar programs. By doing so, they can eventually hold a national championship. Despite the absence of participants from Idduki and Pathanamthitta due to the relatively smaller transgender population, the event witnessed serious competition in events such as the 100, 200, and 400 meters dash, 4x100 relay, shot put, and long jump. However, many individuals participated not only for the sake of competition but also to show solidarity and raise visibility for the transgender community.[vii]



World Athletics Council's Policy Restricts Transgender Women from Competing in Female Events


1.Starting from March 31, 2023, transgender women who have undergone male puberty will be ineligible to compete in female competitions. Previously, there were regulations in place that required transgender women to lower their blood testosterone levels to 5 nmol/L and maintain this level for a year to be eligible for participation.


2.In an effort to address the topic of transgender inclusion, the World Athletics Council has established a working group. This group will conduct research and delve deeper into the complexities surrounding transgender athletes' participation in sports. The aim is to gather more information and perspectives to inform future decisions and ensure a fair and inclusive approach.


3.The World Athletics Council's decision signifies a shift in their approach to transgender inclusion, as they recognize the need for further consideration. By setting up the working group, they are actively seeking to expand their understanding of the issue and explore potential solutions that uphold fairness while accommodating transgender athletes. This demonstrates a commitment to staying informed, engaging in dialogue, and making informed decisions regarding transgender inclusion in athletics.[viii]


In a significant ruling in 2014, the Supreme Court of India, in the case of National Legal Services Authority versus Union of India [ix], set a milestone for the rights of transgender individuals. The court officially recognized 'transgender' as a distinct 'third gender' category. Moreover, the judgment outlined various measures aimed at preventing discrimination against transgender persons and safeguarding their rights. It included recommendations for reservations in employment and education institutions, as well as the right for individuals to declare their self-perceived gender identity without the requirement of undergoing sex reassignment surgery.



Initiatives for the Transgender Community in India


· Transgender Persons (Protection of Rights) Act, 2019: This act aims to eliminate discrimination against transgender individuals in areas such as education, employment, and healthcare.

· Transgender Persons (Protection of Rights) Rules, 2020: These rules recognize the identity of transgender individuals and prohibit discrimination in various aspects, including education, employment, healthcare, property rights, public office, and access to public services.

· National Council for Transgender Persons: This council advises the Indian government in formulating and monitoring policies related to transgender persons, as well as addressing their grievances.

· SMILE (Support for Marginalized Individuals for Livelihood and Enterprise): Launched by the Ministry of Social Justice and Empowerment, this scheme focuses on counseling, documentation, education, skill development, financial assistance for transgender students, healthcare services, and establishing shelter facilities for abandoned and orphaned transgender individuals.

· National Education Policy 2020: The policy recognizes transgender children as Socio-Economically Disadvantaged Groups 4 (SEDGs) and ensures equitable quality education for them. A Gender-Inclusion Fund will be established to support inclusive education for girls and transgender students.

· PM-DAKSH: The Ministry of Social Justice and Empowerment provides skill development training to transgender beneficiaries of the SMILE Scheme through PM-DAKSH, enhancing their employability and livelihood opportunities.[x]



Conclusion


The Indian Constitution, with its emphasis on the right to equality, holds significant importance when discussing transgender participation in sports. This constitutional right lies at the core of our democratic society, embodying the State's commitment to provide social security and a fulfilling life to all citizens. In light of this, it becomes crucial to explore whether transgender individuals should be granted equal opportunities in the realm of sports.

While the International Olympic Committee (IOC) has introduced guidelines for transgender athletes, including legal recognition of their gender and a minimum of two years of hormone therapy post-gender reassignment surgery, there remain contentious issues surrounding gender testing and transgender inclusion. Recent cases like that of Caster Semenya highlight the existence of gaps and uncertainties in this domain. To ensure true equality, it is imperative to advocate for legal reforms that empower transgender people with the same rights and freedoms as any other Indian citizen. In parallel, society must undergo a process of gender sensitization, fostering an inclusive environment within homes, workplaces, and institutions. It is incumbent upon all individuals, at every level, to collectively build a society that celebrates diversity, respects the rights of transgender individuals, and promotes gender inclusivity.





*The author is a lawyer from India












(The image used here is for representative purposes only)


References [i]https://lifestyle.livemint.com/news/big-story/the-dual-lives-of-trans-athletes-111629993101594.html [ii]https://indianexpress.com/article/sports/sport-others/world-athletics-tightens-restrictions-on-transgender-dsd-athletes-8515391/ [iii]https://www.indiatimes.com/news/india/transgender-athletes-can-participate-in-their-chosen-gender-kerala-high-court-576049.html#highlight_108281 [iv] https://thebridge.in/athletics/how-santhi-soundarajan-let-down-india-not-woman/ [v] https://www.hrc.org/resources/get-the-facts-about-transgender-non-binary-athletes [vi]https://timesofindia.indiatimes.com/sports/more-sports/athletics/dont-ban-transgender-women-athletes-from-competing-dutee-chand/articleshow/92401397.cms [vii]https://scroll.in/magazine/836112/a-transgender-sports-meet-in-kerala-could-change-the-norms-of-indias-competitive-sports [viii]https://www.theguardian.com/sport/2023/mar/23/world-athletics-council-excludes-transgender-women-from-female-events [ix] (2014) SCC 438 [x]https://www.studyiq.com/articles/transgender-in-sports/

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