The participation of trans athletes in sport – a transformation in approach?

This article discusses the issues surrounding participation of trans athletes in sport, in particular in light of the new International Olympic Committee (IOC) Transgender Guidelines. The author, Liz Riley, is a barrister in Bird & Bird's Sports Group and has advised sports governing bodies on this issue at both national and international level. She assisted the IOC with the production of its new Transgender Guidelines, and also represented the IAAF in relation to a recent challenge to its rules governing the eligibility of female athletes with hyperandrogenism to compete in women's competition (Chand v AFI & IAAF, CAS 2014/A/3759). All views expressed in this article are the author's own.

Bruce (now Caitlyn) Jenner won a gold medal in the men's decathlon at the 1976 Olympic Games. However, she is perhaps now better known for her recent 'coming out' as transgender.

In doing so, she highlighted an issue that the sports world is having to grapple with on an increasingly frequent basis, namely, how to deal with the participation of trans athletes in sport.

This is very much a live issue, from grass roots right up to the elite level (for example, Chris Mosier recently became the first openly trans man to make a US men's national team, competing in the sprint duathlon at the Duathlon National Championships).¹

This article considers the key issues that arise in relation to the participation of trans athletes, the different approaches taken by sports governing bodies (including the recently-revised IOC Transgender Guidelines²), the interplay with national laws, and some of the legal challenges involved. It is intended to provide further insight into this complex area, and the author welcomes further comment and discussion on this important topic.

For the purposes of this article, the umbrella term 'trans' is used to refer to individuals whose own gender identity is different from the biological sex assigned to them at birth (whether or not they have undergone any form of medical intervention).

The key issues

The vast majority of sports divide competition into male and female categories.³

This is due to the significant physical advantages enjoyed (on average) by men from puberty onwards,⁴ which at elite level result in a gulf in sports performance between the sexes. For example, the world records in athletics show an average performance difference between men and women of around 12%.⁵

These physical differences between the sexes are thought to be due, principally, to the much higher levels of testosterone produced by males from puberty onwards, giving males greater strength and power than females.⁶ As a result, separation of the sexes is therefore required to allow for fair and meaningful competition, as well as to address potential health and safety concerns (for example, in contact sports).

This notion of fair and meaningful competition goes to the very essence of what sport is about. It reflects the underlying need to preserve the uncertainty of the sporting outcome, with success being determined by those particular factors that are valued by the sport in question (such as natural talent and training).

And it is this need that underlies the various dividing lines that are drawn in sport, such as age and weight categories, and the numerous Paralympic classifications. It would not, for example, be fair or meaningful for a flyweight boxer to compete against a super heavyweight boxer: there is little doubt who would win, and it would not celebrate any worthwhile sporting values.

Similarly, if women were required to compete against men, they would have very limited opportunities to succeed (at least at the elite level), and would not be rewarded for their sporting excellence or incentivised to make the sacrifices needed to reach their potential.

How do trans athletes fit in to the male/female athletics categories?

The division of competition into male and female categories raises a number of issues when it comes to the participation of trans athletes in sport:

1. It is generally accepted that prior to puberty (when male and female testosterone levels are similar) there is little physical difference between the sexes,⁷ and mixed sex sport is often permitted (for example, the English FA allows mixed football up to the under 18 age group). Accordingly, there appears to be (and should be) little issue regarding the participation of trans athletes, in line with their gender identity, at this stage.

   For example, many international and national bodies (including World Rugby, the International Tennis Federation, the English FA and the Rugby Football League) allow individuals who have undergone female-to-male sex reassignment before puberty to participate as males, and individuals who have undergone male-to-female sex reassignment before puberty to participate as females, without restriction.⁸

2. After the onset of puberty, however (when male serum testosterone levels increase to around ≥10 nmol/L, while female testosterone levels remain at around 0.1-3.08 nmol/L),⁹ the physical advantages enjoyed by men raise fairness and safety concerns in relation to the participation of trans athletes in line with their gender identity.

   In particular, there are concerns that a male-to-female transsexual might have an unfair performance advantage over other women (raising concerns as to fair competition and the safety of competitors), whereas a female-to-male transsexual might be thought to be at a disadvantage compared to other men (raising safety concerns in relation to their own participation). Sports governing bodies have to decide how best to address these difficult issues.