Gender Identity and Sport - LawNow

Gender Identity and Sport

Gender Identity and SportThis article is being written on the day of the opening ceremonies of the 2012 Olympic Games. Leading the procession of athletes, coaches and officials from South Africa will be a young female middle distance runner named Caster Semenya. This is her Olympic debut and the controversy will be loud and fierce.

You see, most people say Caster is not female, although her governing body (the IAAF, International Association of Athletics Federations) and the IOC (International Olympic Committee) have cleared her to compete as a woman. Most people might also be right in that assessment of her gender, if one accepts that sex is a binary condition and every human is either male with testes and XY chromosomes, or female with ovaries and XX chromosomes.

In fact, we now know that sex occurs along a continuum. Noted one respected researcher “Nature doesn’t actually [draw] a line between the sexes”. Two out of every 100 people do not fit the binary model of gender identification. Sex chromosomes can defy the XX/XY model, medical conditions can produce a body that has the chromosomes of one sex but the anatomy of another, and babies may be born with genitalia that defy gender classification altogether. The old-fashioned term “hermaphrodite” has been replaced with the modern term “intersex” to identify those people who physically fall somewhere between the binary norms of male and female. Caster Semenya is one of these individuals who is not “either/or”, and there are also others like her competing at these Olympic Games.

Added into the mix of how nature may dole out chromosomes, hormones and anatomical characteristics is the separate issue of gender identity. Another old-fashioned term, “transsexual” has been replaced with terms such as “transgender” or “transitioned” to describe persons who meet all the physical conditions of a male or female sex, but whose psychological identity is opposite. A male born child may identify strongly with the female gender, and may take steps to align his sex (male) with his gender identity (female) through lifestyle changes, hormone treatment and/or surgery. One in 500 people identify as the opposite gender to their sex and many of these pursue gender transition at some point in their lives.

The issue of gender identification and sport is a hot topic of discussion these days. Transgender, transitioned and intersex people are increasingly visible, and in many sectors of society are assertively pursuing their right to be treated equitably and to be included in the facilities, programs and services that modern society offers to its members.

Sport is no stranger to these pressures. Organized sport has long sustained a model of gender polarity, and sport activity has always been organized strictly around gender and age categories. But recent years has brought new thinking…

Firstly, we have come to understand that chronological age and physical development are not perfectly aligned and that the development of young athletes requires a focus on physical stages of development, not chronological stages. Secondly, we are gaining understanding of the large variations in skeletal, physiological and hormonal characteristics that exist within genders, in addition to the variations that exist between genders. Thirdly, our laws continue to evolve to recognize the rights of minorities and the disadvantaged, and to correct long-standing inequities that have withheld sport opportunities from women and girls.

In other words, the conventional wisdom that has served us well over generations (that boys who are 14 should play sports with and against other boys who are 14) has begun to fall apart. Now, we are increasingly seeing that girls can compete with and against boys, and that 13- year- olds can compete with 16- year-olds if they are at comparable stages of physical development. We are also seeing doors open to the participation of individuals who do not meet the binary gender norm, or who identify with a gender opposite to the one to which they were born.

But back to elite sport and the rigid rules of sex and eligibility that have existed for many decades. Sex testing in sport from the outset has been a harmful, damaging and humiliating process spurred on by inaccurate scientific assumptions and a sexist outlook. Historically, many female athletes were not even aware that they possessed intersex characteristics until they failed sex tests and were ejected from sporting competitions amid public ridicule. This happened as recently as at the 2006 Asian Games, when Indian athlete Santhi Soundarajan was stripped of her silver medal in the 800m track event for failing to have XX chromosomes.

Formal sex testing in sport was first performed in the mid-1960s at track and field championships and other major games, and consisted of visual inspections of female athletes’ genitalia to verify that they were not males. The Olympic movement introduced a chromosome test in 1968 which involved taking a swab from an athlete’s mouth. If the swab was inconclusive, the athlete had to undergo a DNA test and a physical genital examination.

In all cases, it was only females who were tested, as the thinking of the day was that a competitive advantage could only be gained by a male seeking to pass as a female. In fact, Canada’s synchronized swimmers competing in the 1992 Olympics have relayed amusing stories of the sex testers descending upon the synchro swimmers in their sequined speedo bathing suits and waterproof makeup, just to make sure that they were really women!

Such testing continued until the Atlanta Olympics in 1996. Seven athletes at those Games failed the test, but were permitted to compete as women anyway. The IOC has not sex tested since 1996 but has reserved for itself the right to investigate any complaint, and as recently as this year, has introduced a policy to address female “hyperandrogenism” among those female athletes at the London Olympics who are intersex and who may have androgen levels outside the female norm.

The IAAF also has its own policy that allows it to verify the gender of a competitor on the basis of any suspicion or challenge about an athlete. The IAAF carried out such an investigation of Caster Semenya following her resounding victory in the 800m at the 2009 IAAF World Championships, but has since declared her eligible to compete. As with the IOC policies, only women are suspect and there is no gender verification process for males.

I have worked as a policy consultant in the Canadian sport system for 20 years, and in the last ten of these years I have tried to promote greater understanding and awareness of the legal, scientific and policy implications of transgender inclusion in sport. This has been an interesting exercise, as there are many misconceptions about the science of gender transition, as well as false assumptions about its social, cultural and psychological aspects.

For example, it is widely assumed that a physically born male will always have a competitive advantage over a physically born female, even after the male takes sex change hormones to become female. In fact, this has not been proven. Virtually no scientific research has been done in the athlete population, and there is no evidence to either support or refute the position that transitioned athletes compete at an advantage or disadvantage compared with physically born male and female athletes.

Anecdotal information suggests that transitioned males and females fall within normal ranges of hormone levels and physical characteristics for their transitioned gender, and that any competitive advantage quickly disappears. For example, well-known transitioned female Canadian cyclist Michele Dumaresq reportedly lost three inches in height and 33 pounds in weight after transitioning from a male to a female. Anecdotally, I am not aware of any transitioned female athlete who, following gender transition from being male, has dominated her sporting event.

A few recent events are noteworthy to this ongoing debate in sport. In June 2012, the 2012-2022 Canadian Sport Policy was published. This is a collaborative document of the federal government and all its provincial and territorial counterparts, and it sets direction for the next ten years for all governments, institutions and organizations involved in sport at all levels in Canada. This is Canada’s second national sport policy, following the one created in 2002 which, in part, has contributed to significant new investments in high performance sport through programs such as Own the Podium.

This new national policy is framed around seven principles, the second of which is “INCLUSIVE – sport programs are accessible and equitable and reflect the full breadth of interests, motivations, objectives, abilities and the diversity of Canadian society”. Thus, this policy clearly supports inclusion of gender-diverse individuals in Canadian sport.

Also, the Province of Ontario amended the Ontario Human Rights Code in the spring of 2012 to include “gender identity” as a prohibited ground of discrimination. Interestingly, all but a handful of Canadian national sport governing bodies are headquartered in Ontario and are subject to Ontario laws, placing them squarely within the jurisdiction of the newly-revised Code.

Organizational policies to guide inclusion of transgendered persons in sport have been sorely lacking, in Canada and elsewhere, but in the last two years we have seen progress on this front. The IOC created the world’s first policy in 2004. Called the “Stockholm Consensus”, it allowed gender transitioned individuals to participate in the Olympic Games but only if the athlete met three strict conditions: completion of surgery including modification of external genitalia, legal recognition by national authorities, and a minimum of two years of hormone therapy.

This policy was (and remains) restrictive and unreasonable, especially given that genital surgery is only performed in rare cases, and many countries of the world will not grant legal recognition to those who undergo a sex change. However, until 2010, most sport organizations throughout the world and in Canada followed the IOC policy, despite its flaws.

More recently however, the NCAA (National Collegiate Athletic Association in the United States) and the CCAA (Canadian Collegiate Athletic Association in Canada) have implemented pragmatic and equitable policies for inclusion that do not require surgery or legal recognition. All that is necessary to include a gender-transitioned individual in collegiate programs is one year of documented hormone therapy. The NCAA policy was quietly approved before the 2010-2011 competitive season, and the CCAA policy was passed unanimously by the association’s member colleges in May 2012.

These developments are having a welcome trickle-down effect. In the spring of 2012 the Ontario Soccer Association (Canada’s third largest sport organization, representing nearly half a million Ontario soccer players, from house league to rep) passed a policy modelled after that of the NCAA. In the region of Niagara, a small group has been formed to look at instituting a comparable policy in high school sports, with a view to the policy making its way to the provincial governing body for high school sports, OFSAA (Ontario Federation of School Athletic Associations).

Furthermore, national anti-doping agencies are now involved in the debate and are taking their own steps to adjust anti-doping rules so that gender transitioned individuals will not run afoul of them. Female born athletes who transition to males must take artificial testosterone, which is prohibited under anti-doping rules without a therapeutic use exemption (TUE). The reasons for granting TUEs have been broadened to include treatment for gender identity disorder. In the case of the CCAA policy, the Canadian Centre for Ethics in Sport (Canada’s anti-doping agency) has allowed that gender-transitioned CCAA athletes may undergo a retroactive Medical Review to address any adverse finding, rather than having to obtain the TUE in advance of competition.

These are all welcome developments.

In closing, sport is a very powerful force. Canada’s new sport policy sets out a vision for a dynamic and innovative culture that promotes and celebrates participation and excellence in sport. We know how sport contributes to many things on many levels: excellence, leadership, education, skill development, health and wellness, community engagement, social cohesion, economic prosperity, and national pride. To realize these benefits fully, sport must be inclusive of all, and recent trends in accommodating gender diverse persons using sensible and fair policy tools would suggest that we are moving in the right direction.

But there is still the Olympics to watch, and Caster Semenya’s 800m race. We shall see how the world responds…

Comments

  1. Hello,

    After reading your article I stumbled upon a story about another athlete that was involved in a gender controversy a few years before Caster. Her name is Santhi Soundarajan and she is from India. It was really sad to read about how it changed her life. It ruined her athletic career and she even attempted suicide. There is an article about her here: http://www.cnn.com/2009/WORLD/asiapcf/09/14/Semenya.India.Athlete/index.html

    I really hope clear and fair guidelines get made regarding gender. I also hope future controversies are handled in a better way.

  2. Hi Rachel. Great article, but I’m concerned with your use of some language such as “sex change.” That’s now an outdated and offensive term. You already use better ones such as “transition” and its cognates.

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  1. […] Runner Caster Semenya gender was questioned and she had to endure the public questioning her gender? Is this fair? […]

Authors:

Rachel Corbett
Rachel Corbett is the co-founder of the Sport Law & Strategy Group (formerly the Centre for Sport and Law) and is also a Lecturer in Sport Management at Brock University in Niagara. She is a part-time Doping Control Officer under Canada’s anti-doping program and is a member of the Governance Committee of U Sport (formerly Canadian Interuniversity Sport).
 


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