In mid-November, I participated in a literary event in Toronto hosted by Carol Off, a well-known CBC personality and the co-host of As It Happens, a nightly radio program. She was interviewing three authors of historical fiction. An audience member asked the question, “A hundred years from now, when future authors are writing historical fiction about our lives today, how do you think they will portray us?” The host offered up her view that a century from now, historians might wonder about today’s preoccupation with gender, suggesting that gender divisions might dissolve away.
Women should not have to fill out a “femininity card” to participate in elite sport… I found this remark insightful and startling – in a good way! This is because I have advocated for many years that to maximize its huge benefits to individuals, families, communities and societies, sport must be inclusive. Gender has stood out, over history, as the area of sport that is decidedly exclusive and restrictive, and for which sport has much explaining to do.
I have written in this magazine previously about the issue of gender and sport (link). I have also written extensively on my own website, www.sportlaw.ca. Organized sport has long maintained a delivery model predicated on gender polarity and chronological age categories. Sport is also, by its nature, highly rule-driven, and it exists as a legally-sanctioned monopoly in all jurisdictions of the world. It is safe to say that it is one of the last domains to soften ever so slightly under the pressures brought by the transgender community, which has been very active in recent years asserting the rights of gender-diverse people in society.
Today, there are many people and organizations doing excellent work to foster more positive and inclusive experiences for LGBT (lesbian, gay, bisexual and transgender) people in sport. Many leading sport organizations have welcomed LGBT members, participants and fans. The CFL (Canadian Football League) recently partnered in an official Grey Cup party at a gay sports bar in Toronto. For years, the Blue Jays (and other Major League Baseball teams) having hosted “gay days” at the ballpark. The NCAA (National Collegiate Athletic Association) and one of its counterparts in Canada, the CCAA (Canadian Colleges Athletic Association), along with the Coaching Association of Canada have published resources and policy tools to promote the inclusion of LGBT athletes and coaches. The international Gay Games have been going strong for nearly 30 years, and the international OutGames for over a decade.
The administration of hormones as a component of gender transition will, in most cases, contravene the World Anti Doping Code.At this point, in Canada at least, efforts to promote inclusion of LG and B people into sport have been highly successful. The inclusion of T people (transgender) has been more challenging however, because of the historic regimentation of sport along gender binary lines, and because of the distinct competitive advantage of …. ironically, T (or testosterone). Physiologically, it is testosterone that makes men and women different, and it is the existence of testosterone that renders male athletic performances superior to those of females in almost all cases.
Here is a bit of history to create some context for the discussion of transgender inclusion in sport. pport has a sorry history of its treatment of women, from the earliest days when women were excluded from participation in sport entirely. It may be surprising to some readers that women were not permitted in the Olympic marathon until 1984, based on the belief that the event would be too hard on their bodies. Today, there are uplifting moments, such as when the International Weightlifting Federation recently expanded the number of weight classes for women to put them on even par with men. But also today, the IOC (International Olympic Committee), with the support of the ICF (International Canoe Federation) does not allow women to race canoes in the Olympics. At Rio in 2016, there weSre 12 canoe/kayak events: eight for men and just four for women. And women did not compete in Olympic ski jumping until 2014, and that was only after a protracted legal battle.
Sex testing remains sport’s dirtiest, misogynistic ‘non-secret’. Started in the 1960s by the IAAF (International Amateur Athletics Federation, as it was known then), it was adopted by the IOC shortly thereafter after and continued until the 2000 Sydney Olympics. Through this period all female athletes competing at the Olympics were required to undergo a “sex test” to confirm that they were, in fact, female. These tests were initially visual inspections but later were chromosome tests involving swabs of genetic material. Women who did not pass the test (mostly intersex individuals, meaning individuals who naturally and often unknowingly have atypical chromosomes) would be ejected from competition. In 1996, for example, it was reported that eight women failed the sex test, although none were removed from those Games.
Sex testing remains sport’s dirtiest, misogynistic ‘non-secret’. Under the glare of harsh public scrutiny, sex testing was discontinued in 2002 and shortly thereafter the IOC implemented an eligibility policy for transgender athletes, called the “Stockholm Consensus”. It was onerous and required that an athlete have surgery, undergo hormone treatment, obtain legal recognition in their home jurisdiction (even though most countries in the world did not offer legal recognition at the time), as well as submit a full medical file for review. This restrictive approach became the norm for the next decade.
Then, in 2011 the IAAF introduced a new policy on “hyperandrogenism” in women, criticized by many as being renewed sex testing, just under another guise. Under this policy, any female athlete believed to have testosterone levels outside the normal female range would have to submit to examination and could, as a result, be required to medicate or undergo surgery to reduce natural testosterone levels. This policy was primarily a response to the 2009 high profile case of South African runner Caster Semenya. The policy was also applied to young Indian sprinter, Dutee Chand, who was prevented from competing at the 2014 Commonwealth Games in Glasgow.
According to news reports, more than 30 women have been deemed ineligible to compete under the IAAF’s hyperandrogenism policy. However, Chand was able to enlist support from Canadian advocates and a pro bono Canadian lawyer, who challenged the policy to the International Court of Arbitration for Sport, or CAS. CAS upheld Chand’s case in 2015 and suspended the IAAF policy for two years. To paraphrase reporting from the Globe and Mail newspaper at the time, the Court said “the requirement that an athlete’s natural testosterone fall within parameters arbitrarily determined to be normal for women was discriminatory (gender verification is never applied to male athletes, who can have any level of testosterone) and could not be justified, even in the interest of fair play”. Should the IAAF wish to implement a same or similar policy in the future, it may do so only after two years and must satisfy the Court that any such policy is reasonable, supported by scientific research, and non-discriminatory. Whether the IAAF can satisfy this high burden remains to be seen.
Gender has stood out, over history, as the area of sport that is decidedly exclusive and restrictive, and for which sport has much explaining to do.
This leaves us with two separate, yet related, issues arising from the topic of transgender inclusion in sport. First, there is the question of how to accommodate transgender individuals who have transitioned from one gender to another. The controversy is not associated with biologically born females who transition to males (it is widely accepted that they will never have a commanding competitive advantage, even with the administration of synthetic testosterone, because nature has given these athletes narrower shoulders, broader hips, shorter and thinner bones, smaller muscles, as well as (generally) less vertical height and smaller feet and hands). Rather the controversy is associated with biologically born males who transition to females, because it is widely perceived that they will be at an advantage due to the natural features they were born with (listed above) even though their testosterone levels will be suppressed through hormone treatment.
This is the conventional wisdom anyway, although none of it has been proven scientifically. We do know from scientific studies that elevated testosterone will increase sport performances by up to 12 percent, depending on the sport. This is why most track and field world records for women established in the 1980s will never be broken – as these athletes from Eastern Bloc countries are now known to have been doping with steroids (testosterone) when they set these records.
Earlier this year, the IOC softened its strict position in the Stockholm Consensus by eliminating the requirement for surgery, allowing female to male transgender athletes to compete without restriction, and reducing the minimum period of hormone treatment from two years to one year for male to female transitioned athletes. This is a great step forward for sport’s highest and most influential governing body.
Around the same time that the IOC was reconsidering its position, the Canadian Centre for Ethics in Sport published its long-awaited document, Creating Inclusive Environments for Trans Participants in Canadian Sport: Guidance for Sport Organizations. The document contains policy prescriptions but is also a comprehensive educational piece. It builds on a series of discussion documents and other materials prepared within the Canadian sport system over the last ten years.
Under the glare of harsh public scrutiny, sex testing was discontinued in 2002 and shortly thereafter the IOC implemented an eligibility policy for transgender athletes, called the “Stockholm Consensus”. This guidance document distinguishes between two general levels of sport: developmental and recreational (which represents that vast majority of sport activity in Canada) and high performance. The overall philosophy for developmental and recreational sport is one of full inclusion. In high performance sport, while inclusion is desired, it may be tempered by the application of international federation rules which will tend to be more restrictive than Canadian rules.
The CCES guidance document contains four broad policy recommendations:
- Athletes in developmental and recreational sport should be able to participate in the gender category in which they identify, without any need for disclosure of information or other requirements. The same policy of inclusion would apply to high performance athletes up until the point where they must comply with international federation rules (which may state differently and will likely be along the lines of the new IOC consensus)
- Hormone therapy should not be required for an athlete to participate in high performance sport (up to the point where international federation rules would take effect), unless the sport organization can demonstrate that hormone therapy is a reasonable requirement.
- There should be no requirement for an athlete to disclose their transgender identity or history to compete in high performance sport (up to the point where international federation rules would take effect) unless there is a justified reason for them to do so.
- Surgical intervention should never be required for a transgender athlete to participate in high performance sport.
Keep in mind that high performance athletes are a tiny minority of all individuals participating in sport in Canada. Most sport participants fall into the first category (developmental and recreational) and in this sector of sport, the recommended approach is very clear and very simple: there should be no restrictions on the participation of transgender individuals. They should be free to participate in the gender of their choice.
However, at the high performance end of the sport spectrum, things do get more complicated. Firstly, an elite athlete will bump up against policies and regulations of their international federation, which will trump any domestic policies and regulations. As well, many of these athletes are in the Registered Testing Pool for the Canadian Anti-Doping Program and are thus subject to anti-doping testing. The administration of hormones as a component of gender transition will, in most cases, contravene the World Anti Doping Code. Thus, such athletes would need to request and obtain Therapeutic Use Exemptions (TUEs) in order to train and compete in a manner consistent with prevailing anti-doping rules.
That is the first issue. The second issue is the treatment of female athletes having naturally high testosterone levels, such as Caster Semenya, Dutee Chand and many others. From 2009 to 2016 the IAAF successfully imposed its policy on hyperandrogenism, affecting approximately 30 female athletes. That policy has now been suspended – for a time. People like me are waiting to see what will come forward in 2017 from international sport bodies in terms of replacing the policy with something else.
My personal view (and this is not the view of the Sport Law & Strategy Group, or the view of Brock University where I teach, or the view of the Canadian Centre for Ethics in Sport where I serve as a part-time Doping Control Officer) is that it is discriminatory to continue to challenge females on their femaleness and not similarly challenge males. Women should not have to fill out a “femininity card” to participate in elite sport. I have stated in public many times that most athletes who achieve the pinnacle of their sport are “freaks” to begin with, and I say that in a complimentary way. Yao Ming is a great basketball player because he is 7 ft. 6 in. tall. Michael Phelps,arguably the best swimmer in the world, has a torso length far out of proportion to the length of his legs. Many shooters and biathletes have an unnatural ability to slow and even stop their heartbeat when they pull the trigger to shoot at targets. Great rowers have an armspan significantly longer than their height. If we are going to say that Dutee Chand must artificially reduce her body’s naturally-produced testosterone, then we should also say that basketball players over 7 feet tall should reduce their height by cutting off their feet, and swimmers should not be able to have a shoe size greater than 13.
In closing, the CCES guidance document is refreshing and will hopefully inspire sport bodies to take a more inclusive approach to gender diverse athletes, rather than simply defaulting to the IOC position (which is still somewhat restrictive relative to the Canadian view on this issue). Numerous sport organizations in Canada, ranging from soccer to volleyball to school and college sports, are looking for help in this area, and many are now implementing fair, inclusive and non-discriminatory rules. This is heartening to see. The unknown at this point is what will come forward as we approach the two-year suspension of the IAAF policy to regulate the femaleness of females. I, and others, await this with interest!