Gender is a spectrum; sport is binary. Why an IOC decision is anything but straightforward

In the next 12 months, the International Olympic Committee is likely to implement eligibility provisions that will effectively operate as a universal ban on all transgender women from competing in the female category in Olympic competition.

That ban would be across all sports that have a female category of competition, and would also cover athletes with conditions referred to as differences of sexual development (DSD)– ie athletes reported female at birth who have male chromosomes and who may have male genitalia and testosterone levels.

This dovetails with the Trump administration’s guillotine-like and entrenched position that all transgender athletes will be prevented by the full force of federal law from competing at the Los Angeles 2028 Olympic Games.

The most frightening possibility arising from the US’s domestic legal position is that US Homeland Security would be deployed to arrest and imprison any international transgender athletes daring to roll the dice and attempt to pass America’s borders, on the pretext that they are engaging in fraudulent conduct in falsifying their immigration documentation as to which gender box is ticked.

Rather wicked, when you sit back and think about it.

There’s an important question in all this. Will an IOC policy banning transgender and DSD women from competing in female Olympic competition categories stand up to the legal challenges that will inevitably follow?

The question over the participation of transgender athletes in Olympic and international-level elite athletic competition is starkly and ever-increasingly answered by the exclusion of such athletes.

That doesn’t mean such rules aren’t susceptible to challenge.

Major international federations, including World Athletics and World Aquatics, have in recent years adopted policies where the core ethos is to deem ineligible in female competition any female transgender athlete.

The exception is where they either never experienced male puberty, or had their male puberty pharmacologically prevented before their 12th birthday and before any physical signs of male puberty were physically detectable. Which basically rules out 99 per cent of transgender athletes.

Some other sports have proceeded in the opposite direction. At least for a time.

Up to now, the IOC’s position has remained uncertain, tepid and of little assistance. In late 2021, the IOC published its Framework on Fairness, Inclusion and Non-Discrimination on the Basis of Gender Identity and Sex Variations. Six pages or thereabouts of statements of principle, but wafer-thin on detail.

In 2021, the IOC stated the position that athletes should be permitted passage to compete in the gender competition that best aligns with their self-determined gender identity. The IOC also passed the buck onto the international federations, by legislating that they make their own rules to ensure no athletes are afforded unfair competitive advantages if permitted to compete in a gender category different to their biological gender.

All of which stirred a quagmire. Those two competing principles are impossible to align. For example, factors of political skulduggery and corruption at the international federation level caused the IOC to have to run boxing at the 2024 Olympics in Paris. And look how that worked out. The IOC’s dithering did incredible harm.

‘An IOC blanket ban on transgender women will face serious legal obstacles. That much is certain.’

Designing, implementing and enforcing appropriate transgender policy in sport, at the grassroots level or in Olympic competition, can’t be about fear or creating division for the sake of doing so.

It’s a devilishly complicated dance, weighing up the interests of transgender athletes against those of cisgender competitors. While simultaneously protecting the integrity of competition. It’s a zero-sum game – there has to be a loser in there somewhere.

Designing policy to integrate transgender athlete participation in elite sport, while shielding sports from rampant attacks on the integrity of competition itself, is more complex than solving a Rubik’s Cube with a blindfold on.

Gender is a spectrum; sport is binary.

Besides horse racing, darts, some classes of motor racing and mixed doubles tennis, men and women don’t compete directly against each other.

I’d never try to tell someone what to think about matters so fundamental. But for what it’s worth, in my view, the IOC’s absolute imperative must be that transgender athletes be prohibited from competing in Olympic competition in the gender they identify with, if to instead allow those athletes the freedom of choice would by consequence give those athletes a material competitive advantage in terms of strength, stamina, size or endurance.

Whatever leadership position the IOC must take to set such rules within that philosophy, it must do so.

Otherwise, how might the core integrity of elite sport suffer?

‘It’s a devilishly complicated dance, weighing up the interests of transgender athletes against those of cisgender competitors.’

Straightforward? Yes, but at the same time, hardly. Harsh, definitely. Necessary, yes. If the IOC takes that same stance when its new policies are announced, there’ll be little scope for interpretation or manipulation through subjectiveness. No element of the application of those rules requires measurement or monitoring.

Experts who know more than I do will tell you that the medical and scientific evidence isn’t absolute in demonstrating that transgender athletes, and male-to-female transgender athletes in particular, are benefited by everlasting physical and physiological advantages over their cisgender fellow competitors. But other subject-matter experts will tell you that if a person is born male, there are certain physiological and strength advantages that can’t be muted through pharmacological means.

It’s impossible to conclude with certainty the position that’ll prevail three decades on. But that uncertainty alone can’t be the reason for the IOC and governing bodies to remain stationary until science and medicine arrives at a consensus beyond definitive. To do that would fail the current and next generation of Olympians.

Back to the question however: will an IOC across-the-board ban on all transgender and DSD women, from competing in the female Olympic competitions categories, stand impervious to the inevitable legal challenges that will follow?

Last July, the Grand Chamber of the European Court of Human Rights delivered its final judgment in Caster Semenya’s legal challenge against Switzerland. The ECHR in its judgment found Switzerland violated article 6(1) of the European Convention on Human Rights because the Swiss Federal Tribunal failed to conduct a sufficiently rigorous examination of the Olympic champion’s earlier challenge to the Court of Arbitration for Sport concerning World Athletics’ rules relating to DSD athletes, of which Semenya is one.

While the ECHR judgment focused primarily on procedural fairness rather than the substantive discrimination claims made by Semenya, the decision has profound implications for sports governance, and challenges that may be brought against any rules the IOC implements.

The ECHR decided that the limited supervision exercised by the Swiss Federal Tribunal – Switzerland’s highest court – over CAS awards was insufficient to comply with Switzerland’s positive obligations under the European Convention on Human Rights, to ensure that no individual under its jurisdiction suffers discrimination.

Put differently, the decision strikes at the idea that the IOC, and IFs, have ultimate autonomy in regulating athlete eligibility.

For the IOC’s rules to withstand legal attack, the IOC must lay out a robust and irresistible scientific case demonstrating consistent, unfair, and disproportionate advantages that cannot be addressed through less restrictive measures. The IOC will need to introduce a transparent and procedurally fair system to all athletes affected.

The IOC will also be required to prove why a complete ban on all transgender athletes from the female category is the only available solution.

That approach must also comply with all applicable human rights standards, and particularly so the same ones that were fallen foul of in the handling of Semenya’s matter.

All sportspeople are entitled to fundamental human rights, and those rights must be protected even within the byzantine world of sports governance. The precedent established in Semenya’s case makes clear that sports organisations cannot operate in a vacuum, isolated from human rights norms.

The judicial review of sports policies – such as those conducted by the Swiss Federal Tribunal – must
be substantive, not merely formal.

An IOC blanket ban on transgender women will face serious legal obstacles. That much is certain.

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