17th June 2019

Participation in sport is a human right, even for trans women

I never wanted to be an ‘activist’ for athlete rights. Truly, I just wanted to race my bike and see how far I could advance in the sport I love. So far, this has led to a UCI Masters Track Cycling World Championship in 2018. I still have Olympic aspirations. It’s certainly hard enough to achieve such lofty goals, but it’s a lot harder when people are actively doing everything they can to ban you from competing, even when you’re following every rule under the strictest of scrutiny. They still call me a ‘cheater’ just for existing1.

There are a lot of arguments being bandied about on whether it’s fair for trans women to compete in women’s sport. What is often lost in the shuffle is that there are trans men athletes and non-binary athletes. ‘Where are the successful trans men athletes?’ I’ve read that more times than I can count. But the most commercially successful trans athletes have been trans men: Chris Mosier had a Nike television ad campaign run during the Rio 2016 Olympics; Patricio Manuel has had a feature in Rolling Stone magazine. 

Mack Beggs, a trans male wrestler who rose to fame for being forced to wrestle in the high school girls’ category, is all too often used as an example of what’s wrong with trans women in sport. He’s now happily wrestling on the men’s team in college. Amazingly, people irrationally opposed to trans women in sport think that he’s a trans woman. Trans men are often celebrated, but then forgotten. They are vanished from the social imagination, since they don’t serve the dominant narrative that only focuses on trans women in sport. In some cases, like with Beggs, they’re used as pawns against trans women, in contortionists twists of what can at best be loosely called ‘logic’.

And while trans men at least receive some media coverage and accolades for their ‘bravery’ – which is itself an entirely other problem, rooted in misogyny and sexism – non-binary athletes are left out completely. Sport itself is often not structured to include non-binary people. If one isn’t easily categorised into the binary man/woman, where should one compete? Many rules require an athlete to choose one, and they then can’t change their mind for four (4) years2.

And this binaristic structure of sport comes from on high, from the International Olympic Committee (IOC) and the arms-length arbiter of sport disputes, the Court of Arbitration for Sport (CAS). In a landmark 2015 CAS decision about intersex female runner Dutee Chand, CAS’s decision reads in part, ‘there are only two categories of competition: male and female. These categories are together intended to cover all athletes who wish to participate in competitive athletics’3. Sport’s institutional structure is such that all Olympic-eligible sports must at least abide by IOC policy. In this case, athletes wishing to compete in the Olympics may only do so in either the ‘male’ or ‘female’ categories.

Common ‘understanding’ is that there is at least some rigid distinction between sex and gender. So one might question why I’m slipping between using man/woman or boy/girl, which are often understood as ‘gender’ terms, and male/female, which are often understood as ‘sex’ terms. The reason is twofold. First, sport does not make any distinction between ‘sex’ and ‘gender’: they are used interchangeably. In the aforementioned CAS case, the paragraph following the aforementioned quote reads in part, ‘A rule that prevents some women from competing at all…is antithetical to the fundamental principle of Olympism that “Every individual must have the possibility of practising sport, without discrimination of any kind”.4

Second, governments do not make any distinction between ‘sex’ and ‘gender’, at least not typically. While trans people are not universally able to secure legal recognition of their (transitioned) sex, they are able in many countries. The USA, Canada, UK, Australia, Germany, and a long list of other countries have practices of allowing trans people to change the sex designation on their legal documents, including their birth certificates. In Canada, for example, a trans woman can be legally recognised as ‘female’. There is no legal distinction between being ‘female’ and ‘a woman’. Of course, different governments require different things of trans people to acquire this legal recognition, and there can be differences at the federal and state/provincial levels. 

There are many examples. Consider the language of the UK 2004 Gender Recognition Act:

‘Where a full gender recognition certificate is issued to a person, the person’s gender becomes for all purposes the acquired gender (so that, if the acquired gender is the male gender, the person’s sex becomes that of a man and, if it is the female gender, the person’s sex becomes that of a woman)’5.

Note the use of ‘male gender’ and ‘the person’s sex becomes that of a man’. The ‘gender’ and ‘sex’ terms are used in combination and interchangeably. Legal identification documents only list ‘Male’ or ‘Female’ or their abbreviations ‘M’ or ‘F’. One’s passport doesn’t say ‘Woman’ or ‘Man’. The idea that either sport or ‘female-only’ social spaces such as bathrooms are segregated on the basis of sex and not gender, leaning on a rigid distinction between sex and gender, is simply not the case.

It’s simply the case that sport and governments do not make a rigid distinction between sex and gender. Why does this matter, though? Some people who oppose trans women’s inclusion in sport are increasingly, begrudgingly willing to grant that trans women are women in terms of gender, but remain steadfast in their denial that trans women are not female in terms of sex. The idea is that we segregate sport on the basis of sex and so, begrudgingly, while trans women may be women, they are not female and thereby shouldn’t be permitted into female-only sports categories.

My point here is to call attention to the lack of any such distinction in organised sport – including at the Olympic and Commonwealth levels – or in governments. So those who seek to argue for trans women’s exclusion on the grounds that they (wrongly) think that sport is segregated on the basis of sex are, well, totally wrong.

But it gets worse for them. Prior to 1999, and in practice before the Atlanta 1996 Olympic Games, the IOC had various ‘sex verification’ policies to determine whether an athlete was male or female, irrespective of their legal sex6. However, this only ever applied to those seeking to compete in the women’s category. We never scrutinise men and those competing in the men’s category. Women’s sport is the ‘protected’ category. And in the early days, an athlete thought to be too masculine – which was differentially applied to women of colour, since norms of femininity were set by white women’s femininity7 – would be required to appear before a panel who would inspect her genitals. Anything other than a (white) normative vulva was deemed sufficient evidence that the athlete was not ‘really’ a woman, and so would be excluded from competition. 

Eventually, genital inspection was deemed to be insufficient, so the IOC introduced the practice of chromosomal testing. Specifically, they applied the Barr Body test, which (by ‘failing’) merely tests for the existence of a Y sex chromosome. The presence of a Y chromosome constituted a ‘failure’ of the test, and the female athlete would be deemed ineligible and barred from competition (with women). Over time, as scientific understanding of the prevalence of intersex conditions increased, test cases increased. Humans are not sexually dimorphic, meaning that people fall neatly into ‘XX’ (female) and ‘XY’ (male). 

Humans are bimodally distributed around XX and XY configurations, but there are many other possibilities including XXY, XYY, XO (a null chromosome), and others. Moreover, some XX people have Congenital Adrenal Hyperplasia (CAH), which causes much higher production of testosterone, typically leading the person to develop phenotypically male. Conversely, some XY people have Complete Androgen Insensitivity Syndrome (CAIS) where while their body produces ‘typical’ male levels of testosterone, their testosterone receptors are insensitive to the hormone, and this typically leads the person to develop phenotypically female. 

Recognising this, the IOC last engaged in chromosomal testing of athletes in the Atlanta 1996 Olympics, and formally banned the practice in 1999. Since then, and noted explicitly in the 2015 CAS decision, all sex verification policies are banned. Sport organisations are no longer in the business of determining whether an athlete is male or female. Instead, the CAS panel notes, ‘The distinction between male and female is a matter of legal recognition’8, whereby ‘whether a person is female is a matter of law’9.

All Olympic-eligible sports are thereby required to respect an athlete’s legally recognised sex. If a trans woman’s identification documents say ‘female’, then she is really female. Those who oppose trans women’s inclusion in sport typically say that trans women are not ‘really’ female, but they have no legal standing. They can scream ‘but biology’ all they like: it doesn’t change the facts. Sport takes an athlete’s legally recognised sex. In many jurisdictions, trans women are legally female. 

To reiterate, the first line of ‘argument’ from those who oppose trans women’s inclusion in women’s sport is that sport isn’t about gender, it’s about sex. And while they may begrudgingly grant that a trans woman is a woman, they deny that she is female. But sport and governments make no such sex/gender distinction. 

The second line of argument is that trans women are not ‘really’ female, and thereby should be excluded from ‘female’ sport. But sport – from the IOC down and all sports under the auspices of CAS – must respect an athlete’s legally recognised sex: they may not have their own sex verification policies. And since trans women can be legally recognised as female, they are really female for the purposes of sport10.

In my reading of things over the years, these are the primary arguments of those opposing trans women’s inclusion in women’s sport. And neither argument holds any water. More recently, some have become at least a little responsive to their losing this battle and have transitioned into what is now the most prevalent argument used against trans women’s inclusion in sport: alleged performance advantages.

But I want to explain why this is largely irrelevant. Trans athletes’ rights to compete are not contingent on showing that there isn’t a competitive advantage. Additionally, because proving a negative is literally impossible, people who oppose trans women’s inclusion can forever demand ‘more study’ and the need for ‘more evidence’ before they’ll relent. But that day will never come, for they’ll continue to manufacture potential sources of evidence even in the absence of any scientific evidence suggesting such a thing exists. My favorite so far is the claim that trans women have ‘muscle memory’, by which these people mean that trans women’s muscles ‘remember’ pre-transition endogenous testosterone. This isn’t a thing. They’re making this up11.

What does matter is the human rights framework. Some balk at the idea that sport is a human right. Others frame this ‘debate’ about trans women in sport as pitting trans women’s rights against (cis) women’s rights in a kind of conflict of rights. But I’m here to tell you that there is no conflict of rights. 

Sport is a human right. After a preamble, the IOC’s Olympic Charter lists seven (7) Fundamental Principles of Olympism. The 4th begins with, ‘The practice of sport is a human right’. That’s the first full sentence. And they mean competitive sport: the IOC is only concerned with competitive sport. There is no right to win in sport; there is no right to make a team selection in sport. The right is to participate and try to win, to try to make the team, to strive for your best in the Olympic spirit, of mutual understanding, and of fair play.

(Cis) women do not have a right to exclude women they don’t like or don’t feel comfortable with. Sport and society has a long history of excluding women of colour, often trading on these same claims of alleged competitive advantage or not feeling ‘safe’. But these are not rights. Thus, extending the right for (trans) women to compete in sport with other women is not in conflict with other rights. We can’t make up rights and claim a conflict. Rights are socially constructed but institutionally enshrined, often in law or policy. These alleged rights that people claim are in conflict with trans women’s inclusion in sport don’t exist in any institutional or legal sense. 

Suppose that you’re now convinced that participation in (competitive) sport is a human right. And suppose that you’re now convinced that trans women are legally female, and thereby belong in women’s sport. You might still object to trans women’s inclusion on the basis of some notion of ‘fairness’ and alleged unfair competitive advantages that you think trans women enjoy.

This is why the human rights framing is what controls the issue, not whatever scientific evidence we may want to argue over, allowing us to distract from the core issue. The IOC is an international organisation, as is CAS. When they speak of ‘human right(s)’, this puts us into the realm of international human rights law and principles. Two frameworks are often invoked: the United Nations ‘Universal Declaration of Human Rights’ and the European Court of Human Rights ‘European Convention on Human Rights.’ CAS and the IOC are situated in Switzerland, which falls under both. 

Both frameworks require the elimination of discrimination against women on the basis of sex (or gender; remember, these are interchangable). This isn’t to say that discrimination is never justifiable. ‘Discrimination’ can be a neutral term, simply referring to the distinguishing between different groups or categories. In common use, ‘discrimination’ refers only to the unjustified, unethical or illegal, forms of discrimination. But international human rights frameworks include provisions for when we can justify what is otherwise discriminatory.

There’s a four-fold test. First, the policy must be in service of a worthy social goal. We have prisons and override the right to freedom of movement, partly on the grounds that doing so is in service of the worthy social goal of ‘promoting public safety’. We can argue about whether this is effective, but the first test is merely to ensure that policies are in service of a worthy social goal. In sport, policies are in service of the worthy social goal of fairness. 

Second, the policy must be necessary for the promotion of the worthy social goal. If we can achieve the worthy social goal without infringing upon human rights, then we must. We can only potentially be justified in overriding human rights if doing so is necessary for promoting a worthy social goal. Arguably, the death penalty is not necessary for promoting public safety, and thus arguably fails this second test. 

For our purposes, one issue is whether excluding trans women from women’s sport is necessary for promoting fairness in competition. More on that below.

Third, the policy must be effective at promoting the worthy social goal. Even if a discriminatory policy might be judged necessary for promoting a worthy social goal, if it isn’t effective at doing so, then it fails to be justified. A primary justification for the death penalty is to deter other crime. Arguably, evidence suggests that the death penalty is not effective at such deterrence. And since there are other methods capable of preventing someone from reoffending, the death penalty is neither necessary nor effective, and so is not justified. 

For our purposes, another issue is whether excluding trans women from women’s sport is effective at promoting fairness in competition12. More on that below.

Finally, the benefit from promoting the worthy social goal must be proportional to the harm caused to the group or individuals discriminated against by the policy. Generally, policies that discriminate against already vulnerable or stigmatised social groups, even if they are necessary and effective in service of a worthy social goal, will fail to be sufficiently proportional. Appeal to the small size of a group will not suffice, either: the proportionality test is not a utilitarian calculus whereby a large group can benefit greatly at the expense of a few13.

For our purposes, another issue is whether the harm to trans women caused by excluding them from women’s sport is proportional to any proposed benefit to (cis) women. More on that below.

In an unprecedented move, the UN Human Rights Council released a statement calling on the UN High Commissioner for Human Rights to look into discriminatory policies in sport, including restrictions on endogenous testosterone in women, calling out the International Association of Athletics Federations (IAAF) by name. The statement reads in part:

Expresses concern that discriminatory regulations, rules and practices that may require women and girl athletes with differences of sex development, androgen sensitivity and levels of testosterone to medically reduce their blood testosterone levels contravene international human rights norms and standards, including the right to equality and nondiscrimination, the right to the highest attainable standard of physical and mental health, the right to sexual and reproductive health, the right to work and to the enjoyment of just and favourable conditions of work, the right to privacy, the right to freedom from torture and other cruel, inhuman or degrading treatment and harmful practices, and full respect for the dignity, bodily integrity and bodily autonomy of the person14‘.

The statement also explicitly refers to the aforementioned international human rights framework:

‘Noting with concern also that the eligibility regulations for the female classification published by the International Association of Athletics Federations that came into effect on 1 November 2018 are not compatible with international human rights norms and standards, including the rights of women with differences of sex development, and concerned at the absence of legitimate and justifiable evidence for the regulations to the extent that they may not be reasonable and objective, and that there is no clear relationship of proportionality between the aim of the regulations and the proposed measures and their impact’15.

What’s most crucial about sport being a human right is that the default position is inclusion. The default is not ‘Exclude trans women until we have more evidence about there not being a competitive advantage’. Rather, the default must be ‘Include trans women unless we have sufficient evidence to justify discrimination in an international human rights framework’.

This is why the human rights framework controls this ‘debate’. The practice of sport is a human right (IOC Charter), sex is a matter of legal recognition (CAS), and trans women can be legally recognised as female. Therefore, trans women have a human right to participate in competitive sport as women. 

Trans women don’t have to justify our inclusion. The burden of argument is entirely on those who seek to exclude us. And, as I’ll briefly prove, that burden has not yet been met, and is unlikely ever to be met. For an in-depth treatment of this argument, see McKinnon and Conrad (forthcoming).

In order for excluding a group of people based on an alleged competitive advantage, as noted just now, such a policy would need to be: in service of a worthy social goal, necessary and effective at promoting that goal, and the benefit to society is proportional to the harm caused by the policy. Trans-exclusionary policies fail on every measure except that the policies are at least plausibly in service of the worthy social goal of ‘fairness in competition’.

How much advantage do trans women have in sport? I’m here to say: it doesn’t matter. It really doesn’t. Let’s assume for the sake of argument that there is an inherently biological cause of the gender performance gap where we see an approximately 10-12% difference between peak (cis) men’s performances and peak (cis) women’s performances. Let’s just assume this, even though I think it’s false. Let’s also assume for the sake of argument that trans women are physiologically coextensive with cis men. Let’s also just assume this, even though I think it’s false.

My point here is even if we assume this, and we assume that trans women are physiologically the same as cis men, this is not enough to justify the exclusion of trans women from women’s sport. 

Some will recoil: but isn’t this why we have men’s and women’s sport? Don’t we sex segregate sport because men are stronger and faster? No, I don’t think so. I don’t think the history of sex segregation and banning women from sport (back to ancient Greek Olympic Games) is because men are stronger: women were banned outright. Prior to the 1984 Olympic Games, there was no women’s marathon event. Prior to the 1972 Olympic Games, there was no women’s event in the 1500m or any event longer than 800m. Women weren’t allowed into the Boston Marathon when, in 1967, Kathrine Switzer broke the rules to participate. 

In the 1992 Olympics, the sports shooting competition was not sex segregated (just like equestrian still is). A Chinese woman, Zhang Shan won the gold medal. In the following 1996 Olympics, the IOC sex segregated the event and didn’t offer a women’s category. The defending gold medallist was thus banned from competition. The current women’s chess world champion was not permitted to compete for the men’s world championship. Billiards, darts, bowling, and a long list of other sports are sex segregated with no plausible physiological explanation. 

None of these policies are or were because there’s an alleged fundamental biological advantage that men have over women. This isn’t why, historically, sport is sex segregated. Sport both reflects and leads social attitudes. Societies the world over were and continue to be sex segregated, relegating women to second class status. Post hoc rationalisations abound, but simple sexism explains why we sex segregate sport. We should have no illusion otherwise. 

However, this is all irrelevant. My point, again, is that even if we grant that (cis) men are inherently stronger than (cis) women, and we grant that trans women are physiologically co-extensive with cis men, excluding trans women is not justified in an international human rights framework.

Why is this? Because claims like ‘men are stronger than women’ are, strictly speaking, false. There are many women who are stronger than many men. These claims, instead, are either: the average man is stronger (taller/faster/etc) than the average woman; or the best man is stronger (taller/faster/etc) than the best woman. At present, these latter claims are true. But both ellide the massive ranges within men and women. The shortest, weakest, slowest man is often the same as the shortest, weakest, and slowest woman16.

Elite women athletes are considerably stronger than the average cis man, and certainly the average trans woman. The average height of the Rio 2016 Olympics women’s high jump podium was 6’1.7”. The 10th place woman in the final is 5’5”; the gold medallist is 6’3.6” and was the tallest in the competition. The global average height for men is around 5’9”. Moreover, height is not uniformly distributed around the world. The average Dutch woman is 5’6.5”, whereas the average Indonesian woman is 4’10”. 

We permit huge differences in natural physical traits within sport and call that ‘fair’. So even if we say that the average trans woman is 4” taller than the average cis woman, we already permit much larger height differences within women’s sport and call it fair. This is true for any natural physical trait one selects, including endogenous testosterone. And while there’s no evidence of a relationship between endogenous (internal, natural) testosterone and performance, my point is that even if there were, it’s insufficient to justify excluding trans women.

We demonstrably permit competitive advantages within women’s sport that are far greater than 10-12%. ‘Fairness’ does not require that no athlete have a competitive advantage over her competitor. In fact, that’s the entire purpose of training, coaching, equipment, nutrition, and so on. And fairness does not require us to exclude those who have considerable performance advantages. 

So where does this leave us? The ‘fairness’ claim is that trans women are like cis men, and cis men have a 10-12% performance advantage over women. If we simply assume that this is true, it’s not enough to justify excluding trans women. Such a policy, while in service of the worthy social goal of fairness in competition, is not necessary for fairness: we permit even larger advantages within women’s sport. It also thereby can’t be effective. It’s failed two of the required tests to justify a discriminatory policy under an international human rights framework. 

And finally, trans women are a heavily stigmatised and marginalised group, particularly trans women of color, and particularly trans women of color from the global south. And since the benefits to society of discriminatory policies that further harm an already marginalised, stigmatised group tend not to be proportional, excluding trans women also fails the proportionality test. 

Excluding trans women is not justified under an international human rights framework, under which the participation in sport as a human right is subsumed. And given the comparably huge competitive advantages within (cis) women’s sport we permit under fairness, I think that it’s unlikely (to impossible) that any new evidence will ever change this. The default is inclusion, not exclusion. We don’t need ‘more study’ or ‘more evidence’ in order to decide to grant what is everyone’s human right: the right to participate in competitive sport.

So the scientific evidence is irrelevant. No competitive advantage that could ever be found to be attributed to trans women will be enough for an exclusionary policy to be both necessary and effective at promoting fairness in sport, given the massive competitive advantages we already permit in women’s sport. The human rights argument is the one that controls this ‘debate’.

And there is no debate.


Footnotes

1. Martina Navratilova published a high-profile op-ed in The Sunday Times claiming that rules that allow trans women to compete as women ‘rewards cheats and punishes the innocent’.
2. IOC Consensus policy on trans and intersex athletes.
3. AS 2014/A/3759 Dutee Chand v. AFI & IAAF (p. 148, para 512).
4. Ibid., (p. 148, para 513).
5. Gender Recognition Act 2004 (c. 7) pg. 5, Section 9(1).
6. For one account of this history, see Heggie (2010).
7. This footnote isn’t so much to substantiate what I think is a very well-established point, so much as to provide an accessible starting point for the reader to discover this for themself: https://afropunk.com/2019/02/caster-semenya-the-archaic-gender-ideals-of-sports/
8. CAS 2014 (p. 147, para 511).
9. CAS 2014 (p. 147, para 510).
10. I have a lot to say on the inequities of differential access to legal recognition for trans people. But I want to set that aside for now, at least.
11. And if you link me one particular study on how there are long-lasting performance effects of exogenous testosterone, I will remind you that we’re talking about an athlete’s natural endogenous testosterone. No study shows a link between endogenous testosterone and muscles ‘remembering’ previous levels when suppressed.
12. I argue in McKinnon and Conrad (forthcoming) that the science clearly shows that excluding trans women from sport is not necessary for promoting fairness in competition, and so fails this test.
13. An excellent story on this issue is Le Guin’s The Ones Who Walk Away from Omelas: A Story.
14. A/HRC/40/L.10/Rev.1 (pg. 2).
15. Loc. Cit.
16. The GH-2000 data, drawn on in Healy et al (2014), Sonksen et al (2018), and elsewhere is a rich data set on physiological features of 693 elite athletes.

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