INCLUSIVITY: THE ANTITHESIS OF ‘WOMEN’S SPORTS’? ANALYZING THE ‘INCLUSIVE’ RULES OF IOC AND IAAF
This blog piece has been authored by Mr Atul Narayan.
Atul is a corporate lawyer who has specialized in M&A and Private Equity. He was working with Bharucha & Partners as an Associate until a while ago. He is currently on break for other academic pursuits. Atul completed his B.A. LL.B. (Hons.) from National University of Advanced Legal Studies (NUALS) in 2018. Though corporate law is Atul's staple, in his spare time, Atul thoroughly enjoys snacking on the unique jurisprudence of sports law, which he believe is distinct from all other branches of law.
This blog piece is featured as a part of our new 'Editor's Picks' series and our humble intention is to invoke a healthy debate on this topical issue. Any Comments/Ideas to the Editor can be addressed at email@example.com
On 8 September 2020, the Swiss Federal Supreme Court dismissed an appeal filed by South African athlete Caster Semenya against the decision of the Court of Arbitration for Sport (“CAS”) on the ‘Eligibility Regulations for the Female Classification (Athletes with Differences of Sex Development)’ (“DSD Regulations”). The Court held that the CAS had the right to uphold the conditions of participation issued for female athletes to guarantee fair competition for certain running disciplines in female athletics.
On 8 October 2020, World Rugby banned trans-women from competing in elite rugby tournaments, going against the grain of Olympic and athletic bodies. It further observed that after months of research and examining the latest scientific research, it can be “concluded that safety and fairness cannot presently be assured for women competing against trans-women in contact rugby”.
As an extension of the discourse surrounding these decisions, the article seeks to put forward a brief layout of the broader arguments on the present framework of inclusivity in sports–particularly concerning trans-athletes. For brevity’s sake, the athletic bodies and regulations being examined here concern the International Olympic Committee (“IOC”) which hosts the Olympic Games and the International Association of Athletics Federations (“IAAF”)[i] which organizes the World Athletics Championships.
PRESENT GUIDELINES FOR PARTICIPATION
At the onset, a slew of relevant parts (under the current IOC guidelines pertaining to trans-athletes) produced below must be strictly considered;
“Fair competition is ensured in the following manner:
Those who transition from female to male are eligible to compete in the male category without restriction.
Those who transition from male to female are eligible to compete in the female category under the following conditions:
a. The athlete has declared that her gender identity is female; b. The athlete must demonstrate that her total testosterone level has been below 10nmol/L (measured in nanomoles per liter (nanomoles) for at least 12 months prior to her first competition….”
On a similar plane, the IAAF guidelines follow the IOC language stated above with the possible exception of the required testosterone levels (T-levels) being 5 nanomoles instead of 10.
In a clinical setting, normal testosterone levels tend to range between 0.12 – 1.8 nanomoles (approx.) for women, while men’s T-levels are typically between 9.5 – 31.8 nanomoles (approx.). Testosterone and anabolic steroids fall under the bracket of Performance Enhancing Drugs (“PEDs”) under most sport and athletic governing body’s drug policy, as granting distinct physiological advantages, proportionate to the length of time of exposure.
OUTLINE OF GENDER-BASED CLASSIFICATION IN SPORTS
A brief review of women’s sports, right from the second Olympic Games in 1900 to the historic Title IX act in the USA shows the legislative framework making a conscious effort, to establish a distinct class (an intelligible differentia in Indian constitutional parlance), to ensure increased participation and development of women in sports. These laws, while creating a separate class for women, made sure to spell out the legislative intent as being one of affirmative classification. It was perceived that making men and women compete in the same category would inevitably lead to a further decrease in the participation and development of women in athletics. This particular assertion was backed by statistics, comparing athletic performances of men and women in the same events, which showed radical differentials, which were even more pronounced in athletics while being less relevant in two other events viz. ultra-endurance races and gymnastics. Early observations, based on which such a conclusion was arrived at, were as straightforward as a direct comparison of the average of men’s qualifier timings for collegiate events vs. the world record timing for the same event in the women’s division in the Olympics.
Simplistically the reason for this was that if a particular athlete went through male puberty with an elevated T-level, the benefits that accrue, so far as athletic performance is concerned, make enormous differences in elite athletics – a game of ever so slight margins of microseconds. Furthermore, even if the particular athletes were to reduce their testosterone levels for a year, the body retains the residual benefits – namely, among others, the bone structure, relative size of cardio-pulmonary organs, RBC/Hemoglobin levels, denser fast-twitch muscles, and skeletal muscle function, etc., among a host of other advantages. This was the basis of the massively successful doping program adopted by East Germany in the 1960s, which involved long term administration of PEDs (initially just testosterone) to teenagers in their formative years. The intention behind such programs was to achieve grandeur success in the Olympic Games that followed the careers of these administered athletes.
Then again, a strong case can be made that elite athletes do, oftentimes than not, hold unusual advantages – from Usain Bolt’s fast-twitch muscle fibers to Michael Phelps or Ian Thorpe’s wingspan. But it is also universally agreed that the genetic difference of being born male (particularly undergoing male puberty) or female and competing with the opposite gender has proved to be more of a determining factor than any other similarly placed bodily developments in athletics. More importantly, a valid subsisting legal classification based on gender is already in place, while other attributes such as wingspan, fast-twitch muscle fiber concentration, and average height are not considered a valid legal classification as of yet. Where (in remote cases) such classifications have proved to be a significant determining factor, further classifications have been made (Eg. weight classes and divisions in amateur / professional boxing).
THE OBJECTIVE OF THE CLASSIFICATION
By liberal interpretation, the purpose of all laws which create a specific class of people to which particular rights apply, fall under the ambit of what is considered an extension of affirmative action. Such laws seek to iron out the field to ensure ‘fair’ competition and are a departure from the notion of liberty, albeit with a predetermined purpose. Now, the ‘mischief rule’, if used as a modern method of statutory construction, seeks to find the particular mischief that a particular law aspires to remedy and holds it sacred. Thus, the objective of the parent law of inclusion of women as a separate class in athletic events sought to remedy the mischief of physiological differences between men and women consistently determining the results of athletic events by a large margin. As a natural corollary, any sub-legislation or rule that comes within the parent law creating this classification has to be congruent with the original objective of remedying the mischief of physiological differences brought on by biological gender being the biggest determinant of fair competition and results. Thus the concept of inclusion, as a subset of women’s competitive participation in sports, cannot go in contrast to the intended objective of the classification of women’s sport, which is to maintain fair competition.
THE BONE OF CONTENTION
The fact that gender-based classification is necessary for the advancement of women’s sports, is beyond debate. What then remains to be determined is how best to objectively determine gender so that an individual may equitably use the benefit of this gender-based classification. The current legal framework of IOC and the IAAF seek to use self-identification as the only applicable mode of determining gender and to qualify as a male or female. The scientific and legal acceptance of the legitimacy of self-identification as the sole determinant of gender identity in sports has led to a vexing question, especially concerning trans-women athletes: on how best to balance the ideals of inclusivity while ensuring competitive fairness and safety; a question even the Medical Commission of the IOC has termed as "two almost irreconcilable positions".
STUDIES ON THE EFFECT OF TESTOSTERONE SUPPRESSIONS/REPLACEMENT THERAPIES
An oft-quoted study in any discussion on this issue is a 2017 systematic review, which reported;
“There is no direct or comprehensive evidence of transgender women having an athletic advantage over their cis-gender counterparts at any stage of transition (e.g. cross-sex hormones or sex reassignment surgery).”
But what most second-hand reproductions of the study omit is that the study mentions it came to the above conclusion due to a lack of quantitative research on the subject owing to minuscule transgender athlete participation at elite levels. This occurs primarily because of legal barriers and that more conclusive quantitative research needs to be done to generalize its conclusions.
The overall study has been severely criticized by various peer-reviewed journals and medical panels of athletic bodies for a host of reasons, including methodology and conclusions based on insufficient data.
Relevant excerpts from studies which came later (in 2018, 2019, and 2020) using more quantifiable data, are quoted below:
A 2018 extended essay analyzed the current IOC rule set in 2015 and concluded that “the advantage to trans-women afforded by the IOC guidelines is an intolerable unfairness” because of the residual advantages that are retained. While a control group study analyzing the same held that “androgen deprivation in transgender female individuals increases the overlap in muscle mass with cis-women but does not reverse it.”[ii]
A participative study published in The Journal of Clinical Endocrinology & Metabolism in 2020[iii], replicated the one year lowering of testosterone levels as required by the IOC rules and observed that while it resulted in significant strength gain in trans-men, the same resulted in only “modest changes in trans-women, wherein transgender women generally maintained their strength levels” over the assessment period despite a 4-5% loss in muscle volume.
The above studies do not debate the fact that in cases of late transition or non-transition/ transitioning individuals, residual advantages of elevated T-levels during puberty, leaves almost every acquired physiological athletic advantage intact, with definite but minimal decrease.
Therefore it would be scientifically congruent and fair to conclude the following:
i) That there is little or no scientific research regarding the performance of elite transgender athletes due to a dearth of said athletes;
ii) That scientific evidence demonstrates that residual strength and physiological athletic advantages remain, even when athletes assigned male at birth undergo testosterone suppression for a year; and
iii) The impact of the same is of particular significance in contact sports (boxing, martial arts, rugby union…), lifting sports (strongman, powerlifting, Olympic lifting and throw events), and athletics (with the exclusion of gymnastics and ultra-endurance races).
INCONGRUITY AND THE WAY FORWARD
It is evident that the present framework erases the purpose for which gender was made a classification in elite sports. The question then remains; do we eliminate gender as a classification in elite sports? Because the alternative is to set an objective standard to qualify for the same classification, in a way that such an objective standard still fulfils the purpose for which gender was made a classification.
The IOC and the IAAF seem to have gone for the latter option and chosen free T-levels as the objective standard. This categorization is still problematic among others, for the following two broad reasons:
i) As pointed out above, an athlete who has had the athletic advantage of an elevated T-level through several decades would still retain the advantages, even with testosterone suppression for a year; and
ii) There is a bigger moral and ethical question of requiring inter-sex athletes who do not wish to make fundamental alterations to their body, to qualify with their expressed gender. Such actions that could very well fall under the ambit of forced transitions are a slippery slope argument to base an international legal framework. Further, such forced transitions are, by and itself unanimously agreed on by the medical community, to have long term adverse physical and mental impact on athletes.
The path forward would inevitably depend on the scientific consensus but the legal framework will have to reconcile various competing interests and take a principled stand that would either eat into the principles of inclusion and gender identification or sufficiently answer the concerns of fair competition and further development of women’s sports. Either way, the courts and the athletic bodies have a tough time ahead in drawing the line of objective qualification in women’s sports and can look forward to tumultuous discussions. All of this would naturally require all competing interests to come across the table, discuss and debate their viewpoints. Conclusively, the solution is to draw up mutually agreeable and scientifically congruent assumptions, based on which the legal framework can be set into motion.
The author can be reached for comments on his email at firstname.lastname@example.org
Cite as: Atul Narayan, Inclusivity: The Antithesis of ‘Women’s Sports’? Analyzing the ‘Inclusive’ Rules of IOC and IAAF, Extra-Cover: The Sports Law Blog of India (16th Dec. 2020), Accessed at https://www.extra-cover.org/post/inclusivity-the-antithesis-of-women-s-sports-analyzing-the-inclusive-rules-of-ioc-and-iaaf [Date of Access].
End-Notes: [i] The name of IAAF was officially changed to World Athletics in 2019. However, for the sake of fluidity and uniformity in the arguments which borrow jurisprudence in tune with the earlier term, IAAF is being used instead. [ii] Gooren L. & Bunck M., Transsexuals and Competitive Sports, 151(4) Eur. J Endocrinol 425-429 (2005). [iii] Anna Wiik et al., Muscle Strength, Size, and Composition Following 12 Months of Gender-affirming Treatment in Transgender Individuals, 105(3) Journal of Clinical Endocrinology & Metabolism (2020).