A DILEMMA REGARDING TRANSGENDER SPORTS: CRITICAL ANALYSIS ON THE ISSUE

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CHAPTER 1

INTRODUCTION

1.1 Overview

A transgender person is someone who identifies as gender which is different from their gender at birth or their assigned gender. It is usually an internal sense that they feel they are trap into a body which is not a gender they identify with; thereby would act differently from their assigned gender. They may or may not undergo gender resignment surgeries or medical process to adapt to their identified gender. The inclusion into their identified gender category has always been difficult one. We can say the issue had started since their gender fluidity in the human society has started to gain attention, society was not accepting as it was contrary to the traditional belief. It is felt that their struggle for inclusion into their identified gendered has led them to be excluded from the various societal practices and acceptances. While it is safe to say that doors and society are more opened to the transgendered community as compared to some decades ago, yet when it comes to their inclusion in gender categorization in sports, the issue is widely contested. It has several matters to be taken into consideration before making before someone has to say about their inclusion or exclusion because it is ultimately felt that solution has to be given which is fair for all athletics. It has to be something not at the cost of another.

The segregation of men and women into different categories has become unopposed practice in the field of sports considering the issue of fairness and safety of the less advantaged athlete. In competitive sports, an athletes’ competitiveness, hard work and optimism can play a role in their success of such athlete. It is also important not to ignore that a biological difference can be an advantage to an athlete. However, the matter is not a simple one. To give an overview into the issue, estrogen and testosterone are hormones for female and male respectively which increases during the puberty and thereby causes dominant changes in the body of both men and women based on their assigned sex.

It is highly debated when a transgender woman has to compete with cisgender woman than that of the transgender men. A transgender woman who has undergone the period of puberty is said to have unfair advantage over cisgender women due to bigger body structure and bigger internal organs needed for good performance of an athlete[1]. Hence, suppression of these hormones is usually done by a transgender person through a medical process such as blockers or by surgery to be on the same level as a cisgender athlete[2].

The International Olympic Committee had approved the participation of transgender in their preferred category in 2003. An individual who has transitioned from female to male had no restriction on participation. However, it is required for a transgender female to have undergone a gender reassignment surgery two years prior from year of participation[3]. The rule has been revised repeatedly by the IOC overtime. The rule in 2016 did not require the mandatory medical process such as gender reassignment surgery or other hormone therapy for participation[4]. The approach is not uniform in all cases, for instance, the IAAF regulation may consider the age, the reassignment before or after puberty, period prior to, duration, treatment and nature of reassignment[5].

1.2 Research Problem

Sex categorization in sports is done in order to provide more opportunities for women as if it was gender neutral, men would dominate. This has causes exclusion for trans athlete who wanted to fit into their identified gender category. In women sports, would the inclusion of transwomen hamper the performance? On contrary, the requirement for eligibility of participation has causes many trans athletes to not get chance to participate on many occasions. The issue on both side is causing quite a dilemma to many people. Moreover, there is uncertainty on which solution be best suited for the stakeholders of this issue.

1.3 Research Methodology and Date collection

The research employs qualitative method. It is also deductive approach in which different opinion from scholars are analyzed to test the hypothesis. The research collects data from secondary source such as e-journals, articles and media reports.

1.4 Research Hypothesis

1.5 Research Objectives

1.6 Literature Review

1.7 Abbreviations

IOC- International Olympic committee

IAAF-International Association of Athletic Federation

CAS- Court of Arbitration for sports

CHAPTER 2

UNDERSTANDING THE SEX CATEGORIZATION IN SPORTS

2.1 Sex segregations in sport

In competitive sports, performance of an athlete is a major concern and is where different factors are to be considered for achieving a good performance. Categorization is done on different aspects to equalized the level of athlete to ensure an equal participation and benefits of achievements. Weight is one such instance where athletes are categorized based on certain weight in order to compete against another of similar weight category.

Categorization based on sex because of differences in physical body of male and female is done to ensure female are given fair opportunities to athletic benefits and participations as male athlete who is generally said to be at advantage as compared to female. Let us give an instance of no categorization, men have physical features which may not require much effort to compete against female. In such cases, women will be less advantaged and are unfairly denied of many opportunities they could have taken. Thus, the practice categorizing between male and female in sports is perceived to be one which is not detestable. This is no more than separate because of unequal physical capabilities[6]. It is to show that such segregation is necessary when the effect is not the same for both as one being in favourable condition to compete in contrast to another. This may indicate the idea that inequality exist between men and women in sports. While that is true due to physiological or biological difference between men and women[7], it is not a good reason to exclude women from sports because they are physically weaker, but to provide segregation in order to provide reasonably fair and equal competition.

In contrast, it can be argued that segregation based on sex can lead on society to believe that men and women cannot be treated equal even in other societal spheres because men are physically superior. It can lead to a belief about equality between men and women as a myth. Such segregation promotes discrimination between men and women due to stereotypical perception. Segregation could lower the rate of participation due to low population. It can be due to the legal system or lack of interest among such gender group in such sports. Nevertheless, it could also motivate women as more opportunities are available. Would it be logical to completely ignore an underlying fact for sake of hypothetical impact? It could also depend how much proven such underlying fact is and whether it is a partial or a whole hypothetical situation. One logical solution can be one which benefits both genders in terms of performance in sports.

2.1.1 Athletic Performance

On determining an athlete performance, psychological factors are often credited by athletes and sport psychologist. It is ability of a persons’ psychological factors that can control over the strength, power and speed of an athlete. Some of the important mental elements that affect the performance of an athlete can be endurance, motivation, concentration, emotional control and self-confidence[8]. In mental elements, the athlete developed strategies that can aid in the performance as well as cope with adversity in performance. Accordingly, such athlete developed commitment toward sports and their training. Studies also shows that goals which are realistic and difficult will prepare the athlete with more determination and are likely to contribute toward success[9]. Meanwhile, the performance can depend also on how well an athlete can manage anxiety which can depend on the type of audience and environment. The environment can be of social, physical and different stage of transition right from childhood to adulthood.

Genetic factor is one of the most supported theory in contributing an athletic performance. This include physical traits which help in endurance, movement, flexibility, coordination which are all rooted in muscles and bones. An ideal gene and environment can be vital for successful performance. Genetic differences are responsible for variations in physical traits and these can be measured by hereditability. It can be estimated from 0 to 1. Genetic factors can account for 40 percent to 70 percent which is very essential for endurance sports and overall can be between 66 percent in the status of an athlete[10].

Now to the question about differences between male and female athlete? How does such differences contribute toward their performance? It is undisputed scientific fact that biological man and woman have distinct traits in their genetic and different physiological traits. An intake of oxygen is essential for athlete as it is important for fitness in cardiovascular and aerobic endurance. Intake of oxygen help to sustain the energy of a person. VO2max is measurement for an intake of oxygen in the body as mL/kg/min. It measures the amount of oxygen per min and the weight of body in kilogram. The VO2max of a male athlete is up to 85mL/kg/min and female athlete is 77mL/kg/min while the score of a non-athlete male is 35-40 and female is 27-30.[11] Heart is another trait which there is a notable difference, men having larger heart, there are lesser beat compared to women. The production of testosterone gets higher in puberty and create distinct characteristics between men and female. These differ in the value of hormones i.e. testosterone and estrogen. Men produce testosterone twenty times more than women. The anabolic effect of testosterone is vital for strength, growth of bone and muscle mass in men[12].

CHAPTER 3

TRANSGENDERS IN SPORTS: A CASE STUDY ON WOMEN SPORT

The issue relates to discrimination of certain class of groups defined by their genders. One group feel there is an issue of exclusion which adds to their lists of discrimination and oppression by other sections of the society and the institutions. While another group also feel  discrimination but more on the unfair advantage enjoyed by the former group of people due to biological advantage. It refers to a situation when a biological man who identified as female competes in the women category and vice versa. The issue became more complex in women sports where transgender women is included or excluded.

3.1 Sports regulation on transgender and intersex

Dora Ratjen and Zdenek Koubek were athletes experiencing gender fluidity and participated before gender testing. These gender verification or sex testing policy disqualified a number of athletes who previously had successes. Example- Erica Schinnegar.

The Olympic committee adopted gender testing which involve the practices requiring athlete to appear naked known as nude parade. This was before chromosomes testing were introduced to detect Y Chromosomes[13]. These testing were no longer practice since 1999[14]. The Olympic committee in 2003 adopted policy for eligibility criteria for transgender athlete which required athlete to undergo surgery, 2 years hormone therapy and be legally recognized by authorities[15]. Some of the criticism of these was that these requirements were given more importance than the athletic capability and disregard transgender from countries which did not recognized transgenderism.

In 2011, the IAAF introduced the Hyperandrogenism rule which prohibits the participation of women with hyperandrogenism. Women with such condition have higher level of androgen thus have more advantage. It required not more than 10 nmol/L (nanomoles per litre) of testosterone[16]. This regulation comes after the incident of Caster Semenya, an intersex athlete, whose gender was questioned after series of achievements. Another such incident was when Dutee Chand was disqualified to compete in the Commonwealth Games in the women category. Chand challenged it before the Court of Arbitration for Sports which decided in her favour and suspended the hyperandrogenism rule due to lack of evidence that her testosterone level had given her unfair advantage over her fellow competitors[17]. The IAAF later revised its guidelines in 2018 which required not more than 5 nmol/L[18]. Suspicion based test was another controversial method of gender testing which conduct test after reasonable suspicion; usually done to athlete with masculine features[19].

3.2 An Analysis of the Issue on discrimination and fairness.

The issue with regard to the eligibility guidelines is that it aims to give opportunity to transgender and intersex athletes but is flawed. This form of ineligibility is not the same when athletes are disqualified by failing the normal eligibility criteria. Keeping in mind the ruling Chand’s case, it is more about disqualifying a person on unproven presumption that they are overqualified or have more competitive advantage[20]. These forms of requirement also impacted the society to a large extend. It demotivates another aspiring athletes of similar nature.

A transgender athlete believes that identifying and living in their identified gender in all aspects of their life is a right. As a human being, having to be treated differently or be denied of societal acceptance and practices just because he/she identified differently from their assigned sex seems irrational, unfair and violative of their human rights. In the same way, being disqualified from athletic competition is another way of denying their right to participate in sports. Moreover, sports policy which coerces transgender to compete with their biological sex category is another way of stripping them from their sense of identity. It speaks about discrimination to this group of athlete but also on cisgender athlete if there is unfair advantage.

To transgender, it make the issue to be more connected toward inclusion into the gender they identified with. While it seemed like a minority group being on the verge of exclusion, the IAAF or other sport authorities continues to deny the allegation of purposefully excluding transwomen by saying “open competition[21]”. Addressing the issue of inclusivity would depend on what inclusion actually means by IAAF? Does it correspond to transgender right to inclusion in their identified gender? If it means providing conditions for qualification with intension of excluding transwomen from participating in their chosen sports, that does not equal inclusivity but unfairness and discrimination to trans athletes. On contrary, if a trans woman who does not undergo hormone therapy while identifying as trans person. Such person is likely to be as strong as cisgender man. So, a likelihood would be distorting women sports if she insists to compete there while making no changes on her physical body. However, the possibility of such instances are rarely known but probable on intersex person. They are person biologically possessing characteristics of male and female. Infact they are required to undergo mandatory condition such as testosterone reduction to compete in their chosen sport.

On the issue of transphobia, two perspectives can be drawn here. One, the notion that transgender women competing in women category poses a threat to the integrity of women sports in which opponent of inclusion do not discriminate nor dislikes transgender person in general. However, they believe that transgender women still retain advantage over cisgender women. It is not necessarily a transphobia and it would be a mistake to label them as transphobic for standing up for the rights of biological women. Second, those that claim that there is no such thing as transgender by believing that it is more about a transgender feeling and emotion about who they are which they often overlooked over biological facts that insist they are not who they claim to be. Hence, the disbeliever in this category believe that biological men threaten the women sports and destroy the very purpose of sex segregation in which biological men are physically stronger than biological women. It can be observed that such person disbelief of transgenderism is generally seen as transphobic or commonly understood transphobia. So, is commonly understood transphobia connected to inclusion/exclusion of transgender in women sports? An answer to this may require unbias opinion and certainly not a mere presumption. In Dutee case, the IAAF argued that the eligibility criteria is not to distinguish the genders but more intended toward removing the advantage an athlete may enjoy due to testosterone levels[22].  The purpose of mandating eligibility criteria is often claimed to protect women’s right to fair opportunity to participate as well as success. It does seem to imply that women are physically weaker than men and also implied that transgender women are not completely women as they claimed to be. This later statement might seem far-fetched or irrational to some considering the claims that biology did not matter as it is more about the internal sense that person identify about their gender which did not correspond to their physical body. However, considering the IAAF’s stance on biological advantage attributed to biological men, it also points toward biological advantage rather than unreasonably excluding transgender from women sports. Despite claims of unfair advantage, transgender athlete do not generally dominate women sports. One recent incident igniting wide controversy was the participation of transwoman and a weightlifter Laurel Hubbard in the Tokyo Olympic 2020, she did not win any medal[23].

A research showed that transgender women are going to run faster than cisgender women in 12 percent. However, major gap of advantage can be reduced after hormone therapy.[24]

On biological standpoint, the opponent of inclusion agrees that biological facts have to be consider rather than identity in sports. It goes further that right to participate in particular category does not means right to self-identity[25]. If all these points are made on the ground that women are physically weak, will it foster stereotype and discrimination against women? Women are subjected to stereotypes since time immemorial and reason of prejudice are mostly due to patriarchal society, culture, religion and not just physical differences between men and women. The purpose of sex segregation is to avoid men who can dominate the sports but to provide opportunity to women with equal chances of successes and participation. It does not seem like an oppression or discrimination. 

Opponents of trans athletes inclusion in women sports are always quick to point out that the integrity of women sport would be threatened by trans women in the name of women’s right. Even if that was the case, it would be logical if women have equal access to fairness by means of investment, equal pay, media coverage and security as their male counterpart. It is true that women have fought for a long time for their right to participation and right to be treated fairly as stated earlier. It is tragic that these forms of discrimination still continued. Meanwhile activists or supporters of trans right to participate in women category would claim by that sport have always been unfair. Therefore, imagining a scenario where transgender women have advantage over cisgender women and were allow to compete in women category to provide same opportunity as cisgender women as both being female, would not that mean that we are adding more to the endless lists of unfairness in sports and to cisgender women? On the contrary, transgender women would again be subjected to unfairness and injustice because they are not given the fair chance to compete as women or are most likely disqualified.

CHAPTER 4

VERIFICATION OF HYPOTHESIS

A separate category for trans athlete is one of the most suggestive solution offered by most people considering the fact that there is a purpose for sex segregation in competitive sports. One such purpose is that there is widely accepted physical advantage of men. The internal organs such as lungs, heart, outward physical characteristics such as height, arm length, shoulder, etc. are some differences and the hormones level could make up why there is more strength, speed and power of one sex over the other. Sports celebrate differences in performance but such differences did not imply why one with biological advantage should dominate the sports. Such contentions might seem convincing but may not at all solve the problem because there is significantly less transgender population let alone trans athlete. Creation of separate category for another category due to physical limitation of cisgender women could create a slippery slope[26].

One of the thing transgender athlete such as Laurel Hubbard would contend is that their participation in women’s category is part of who they are as women[27]. As previously stated in the analysis, transwomen are determined to live in the lifestyle of their identified gender and that includes playing alongside cisgender women because both live as women regardless of their sexes. This seemed to connote a fight for inclusion rather than a form of cheating.

CHAPTER 5

CONCLUSION

To summarize, the research presented why there are sex segregation in the first place as this help us to understand why there is an issue of inclusion of trans women in sports. It can be found that segregation is required for securing equal participation due to biological advantage. Then, the paper examined how biology played a role in athletic performance, it was found training, mental element, environment and biology all contributed to performance. The next chapter presented transgender issue in sport where it can be found that sports policies have disqualified female trans athletes from women sports due to testosterone level or being too masculine. The main argument of the article is if transgender had unfair advantage in women sports, one group believed that their right to participation as women is unfairly denied while the other group contested that transgender retain unfair advantage even after hormone treatment or therapy.

In conclusion, it cannot be denied that biological men are physically stronger than biological women but can be pointed out that it is the same reason why inclusion of transgender is controversial. The claim on the unfair advantage of transgender women over cisgender women is still unsettling issue. It is also the reason why many transgender and intersex athletes are denied of opportunity or are stripped from their medal. The Sport policies has failed to present desirable solutions. This is because solutions given so far had allegedly hinder one if not both. The following are the recommendations:

REFERENCES


[1] Vchamp, “Why do men and Women compete in separate categories in sports?”, Virtual Championship,  available at: Why do men and women compete in separate categories in sport? (virtualchampionship.eu) , (Last visited on Sept 8th  2021, 10:24PM)

[2] Elizabeth Boskey, “Testosterone Blockers Options for Transgender women”, Very Well Health, available at: What Are Testosterone Blockers for Transgender Women? (verywellhealth.com) (Last visited on Sept 8th,2021 11:04PM)

[3] “Statement of the Stockholm consensus on sex reassignment in sports”, Stillmed Olympic, available at:  https://stillmed.olympic.org/Documents/Reports/EN/en_report_905.pdf (Last Sept 8th, 11:26PM),

[4] Sindhuja Parthasarathy, “Jumping the hurdles at India’s First Transgender Sport meet”, The Hindu, available at:, Sindhuja Parthasarathy captures the many moods at India’s First Transgender Sports meet in Thiruvananthapuram – The Hindu (Last visited on Sept 10th 2021, 10:12PM)

[5] Elizabeth Riley, “The Participation of Trans-athlete in sport- a transformation in approach?”, Bird & Bird, available at: https://www.twobirds.com/en/news/articles/2016/uk/the-participation-of-trans-athletes-in-sport-a-transformation-in-approach (Last visited on Sept 8th , 2021 11:30PM)

[6] Patrick S Shin, “Sex and Gender Segregation in competitive sports: Internal and External Normative Perspectives”, Vol.80, Law Comtemp. Probl. 50, (2017) available at: https://scholarship.law.duke.edu/lcp/vol80/iss4/4

[7] Ibid

[8] “What Psychological Factors help Improve Sports Performance?” Exploring your Mind, available at: https://exploringyourmind.com/what-psychological-factors-improve-sports-performance/ (Last modified. August 7th 2019)

[9] Claudia Kubiak, “Perceived factors influencing athletic performance across career stages”, Halmstad University, School of Social

[10] Christopher Eberley, “Heritability & Physical Performance”, Exercise Tool Kit, available at: http://exercisetoolkit.com/2015/03/08/heritability-physical-performance/#:~:text=Heritability%20of%20maximum%20strength%20is%20estimated%20to%20be,may%20be%20more%20heritable%20than%20the%20concentric%20element. (Last Visited on Sept 16 2021 3:23PM)

[11] Amanda Capritto, “VO2 max: Everything you need to know”, Health and Wellness, available at: https://www.cnet.com/health/your-vo2-max-explained/ (Last modified. July 27 2019, 6:00AM)

[12] Blanca Paraiso, “What is the function of testosterone?”, Invitra, available at:  What Is the Function of Testosterone (TST)? (invitra.com) (Last modified. Jan 16th 2020),

[13] Ingram, Benjamin James, et.al., “The Transgender Policy in Sport, A review of current policy and commentary of the challenges of policy creation”, Vol 18(6), CSMR 239-247 (2019) available at: Transgender Policy in Sport, A Review of Current Policy and… : Current Sports Medicine Reports (lww.com)

[14] Ibid

[15] Supra, note 3

[16] Lindsay Pieper, “Hyperandrogenism Regulation in sports”, US Sports History, available at: https://ussporthistory.com/2015/09/17/hyperandrogenism-regulations-in-sport/ (Last modified. Sept 15 2015)

[17] Dutee Chand v AFI & IAAF CAS 2014A/3759

[18] Sean Ingle, “New IAAF testosterone rules could slow Caster Semenya by up to seven seconds, The Guardian, available at: https://www.theguardian.com/sport/2018/apr/25/iaaf-testosterone-rules-caster-semenya ”, (Last modified. April 26 2018)

[19] Samantha Shapiro, “Caught in middle”, ESPN Megazine, available at: https://www.espn.in/olympics/story/_/id/8192977/failed-gender-test-forces-olympian-redefine-athletic-career-espn-magazine (Last modified. July 24 2012)

[20] Supra note 15

[21] ZK Goh, Evelyn Watta, et.al., “DSD Athletes: What does it mean to be DSD and how gender and sex are the big issues in athletics”, Olympics, available at: https://olympics.com/en/news/semenya-niyonsaba-wambui-what-is-dsd-iaaf-regulations (Last modified. Sept 25 2019)

[22] supra note 13

[23] Brooke Sopelsa, “Transgender Olympian Laurel Hubbard fails to win medal in Olympic debut”, NBC News, available at: https://www.nbcnews.com/nbc-out/out-news/transgender-olympian-laurel-hubbard-fails-win-medal-olympic-debut-rcna1568 (Last modified. August 2, 2021)

[24] “Fact check: Do trans athletes have advantage in elite sports?”, DW, available at: https://www.dw.com/en/fact-check-do-trans-athletes-have-an-advantage-in-elite-sport/a-58583988 (Last visited. Sept 19th 2021)

[25] supra note 16

[26] supra note 6, at 51

[27] supra note 19

Author: Boilem S Touthang, CMRU, School of Legal Studies.

Editor: Kanishka VaishSenior Editor, LexLife India.Advertisements

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