Another episode on the gender conundrum in sport: Thomas v World Aquatics
By Prof Dr Steve Cornelius, Sports Law Centre, University of Pretoria, South Africa
It is often the case that an issue, which appears to be the most simple, may end up being the most complex. Someone once said that it is the small problems that tend to cause the biggest havoc and prove to be the most difficult to solve. To this, someone added that inside every big problem is a small problem struggling to get out.
Certainly, the sports world has found this to be true since the early years of the twentieth century, when women were first welcomed into the competitive sports arena and given events to participate in. This immediately created two small problems: Firstly, how does one determine the gender categories that should be recognised? And secondly, in which events should women participate? The first problem seemed to be simple: There are separate competitions or events for men and women. The second problem brought a struggle for equal participation that lasted for most of the twentieth century. Initially it was felt that women were not strong enough to participate in certain events, such as middle and long distance running, weight lifting and team sports, such as football or rugby union. Some sports, such as boxing, were also as seen as being “not feminine”. There were also significant disparities in earnings, with even mediocre men earning significantly more than the elite women. While some problems, such as the pay gap, still remains, it is now possible for women to participate in any event that men participate in.
However, the first problem – which categories should be recognised – started off as almost a non-issue that has festered behind the scenes for almost a century before exploding into a major problem during the past 20 years. Almost all sports federations provided separate events for men and women and, for many years, it seemed that the only concern was how to ensure that men do not enter women’s competitions. For most of the twentieth century, this seemed to be a non-issue. Instances of men disguising themselves and participating as women, were very rare. There was the case of Dora Ratjen, who finished fourth in the high jump at the 1936 Olympic Games, won the 1938 European Championships and “broke” the women’s high jump world record in 1939 before being exposed as a man, Heinrich Ratjen. Ratjen later claimed that the Nazi’s had forced him into the deceit, but later evidence suggests that he may have been intersex from birth with both male and female genitalia.
There was also the matter of Stella Walsh, once described as the greatest track and field athlete of her time. After her defeat in the 100m sprint at the 1936 Olympic Games, she openly accused the gold medallist, Helen Stephens, of being a man. After a crude physical examination, the International Olympic Committee declared that Stephens was indeed a woman. In an ironic twist, in 1980, Stella Walsh was fatally wounded during a bank robbery. The subsequent autopsy revealed that Stella Walsh was in fact genetically a man.
Whilst these incidents were very rare indeed, sports federations sought to find ways to ensure that men do not enter women’s competitions. Initially, this took the form of physical examinations or so-called “nude parades” when athletes wishing to participate in women’s events were required to present themselves for a physical inspection by a team of (male) doctors to prove that they were indeed women. This evolved into chromosome testing. This relied on the Barr body test to identify of the female XX chromosomes and male XY chromosomes, with particularly the Y chromosome considered deterministic in establishing male characteristics. However, it was soon discovered that the Barr body test was problematic in various ways. Instances were discovered where different body cells of the same individual would have different chromosome combinations, whilst some individuals had three chromosomes, often with XXY combinations. The presence of a Y chromosome was not necessarily conclusive to determine whether someone was a male or female.
An attempt was also made to use emergent DNA technology to establish gender, but this was even more problematic and abandoned.
Towards the end of the twentieth century, the plight of intersex and transgender athletes became more prominent as Western and Far Eastern societies became more tolerant of individuals that do not fit the typical binary classification between males and females. More and more jurisdictions began to recognise sex-reassignment and allowed individuals to change their official status on national population registries and identification documents. Some even allowed individuals to self-declare their gender without any supporting evidence to verify such gender. All of this began to pose serious concerns for sports federations who maintained the binary separation of men’s and women’s competitions.
The next step was to rely on the testosterone levels of athletes to ensure that athletes, who participated in women’s events, were actually genetic females or, at least, would not have any competitive advantage over female athletes if they were intersex or transgender. This essentially required that all athletes wishing to participate in the women’s events should maintain testosterone levels below a certain threshold if they had differences of sex development (DSD) or were transgender. Initially, this threshold was set at 8 nmol/L, but this was subsequently reduced to 5 nmol/L and eventually to 2.5 nmol/L. These regulations required that athletes with DSD and transgender athletes should take hormone suppressant therapy if they wished to participate in the women’s events. The relevant regulations were unsuccessfully challenged by South African DSD athlete Caster Semenya in the Court of Arbitration for Sport (CAS) in 2018, with the matter currently under appeal at the Grand Chamber of the European Court of Human Rights, after the ordinary chamber of the European Court of Human Rights found in favour of Semenya.
Subsequently, with the increasing participation of transgender athletes, particularly in Canada and the collegiate competitions in the United States, many international sports federations abolished their transgender regulations that allowed athletes transitioning from male to female to participate in women’s events if they maintained their testosterone levels below the prescribed threshold. One of the first to do so was World Aquatics, which excluded transgender swimmers from participating in women’s events if they had undergone any part of the male puberty process.
The new regulations were challenged by transgender swimmer Lia Thomas, in case brought against World Aquatics before CAS.
Thomas is a transgender swimmer who has participated in the women’s category in NCAA events in the United States. World Aquatics challenged the standing of Thomas to bring the matter before CAS. At the time when the matter was brought, Thomas was neither registered with USA Swimming, nor with World Aquatics, to participate in elite events, with the result that the rules excluding her from participation in the women’s events, did not apply to Thomas. The argument, that the regulations prevent Thomas from applying and registering for elite events with USA Swimming and World Aquatics, was rejected by CAS. As a result, the challenge to the regulations on the merits, were not considered and CAS dismissed the case.
Whilst the ruling by the CAS panel is technically correct, it is a pity that the merits of the case did not receive attention in this case. A ruling on the merits would have sent a clear directive to sports federations across the globe on the way forward and would have served to provide guidance which would have promoted uniformity at the highest level. In much the same way, the Semenya case, despite the current appeal, provided a benchmark for sports federations to follow and many federations have subsequently modelled their own DSD regulations on the example of World Athletics. A similar approach to transgender athletes would have been preferable.
It is also important to keep in mind that a clear distinction should be made between DSD or intersex athletes on the one hand, and transgender athletes on the other. The matters are often confused and, perhaps, in the Semenya case, because of the similarities at the time, perhaps even intentionally used to obscure the arguments in favour of hormone suppressing treatment.
However, since then, there has been a divergence in the way that the eligibility of DSD athletes and transgender athletes has been addressed. This distinction is primarily based on the recognition by sports federations, such as World Athletics and World Aquatics, that athletic performance, at least in the case of adult transgender athletes, are not necessarily determined by testosterone levels. In fact, the research on which World Athletics relied in the Semenya case, clearly showed that some of the elite men’s athletes showed clear signs of hypo-androgenism with testosterone levels below 3 nmol/L. This subsequently compelled World Athletics to admit that their research could be misleading. However, this was merely done in anticipation of the new eligibility regulations which, like those of World Aquatics, would exclude any athlete transitioning from male to female from participation in women’s events at elite-level competition if that athlete had undergone any part of the male puberty process.
The case which Athletics South Africa brought against World Athletics in support of Semenya, was also, to a large extent, based on the fact that there is no credible scientific evidence that supports the contention that a change in the levels of endogenous testosterone of an athlete affects sports performance after puberty. Any change in performance when taking hormone suppressant medication can be sufficiently ascribed to the side-effects of the medication. All credible scientific studies which establish a clear link between athletic performance and testosterone levels in post-pubescent athletes, rely on the administration of exogenous testosterone. From an endocrinological perspective, this makes complete sense. During puberty, the body adapts to its own endogenous hormones and hormone receptors become more or less responsive to hormones to account for the body’s natural levels. Any short- or medium-term artificial manipulation of this natural system, by administering exogenous testosterone or anabolic steroids, will necessarily circumvent the body’s own resistance to testosterone levels and enhance performance. Withdrawing the testosterone or steroid treatment restores the natural balance and gains made, whilst using the testosterone or steroids, often disappear after some time. However, there is no credible scientific evidence to show that fluctuating testosterone levels after puberty have any direct impact on athletic performance or lean muscle mass.
If this is the case, the participation in women’s events of transgender athletes, who transition from male to female after undergoing male puberty, poses serious questions about fair competition and, in the case of contact sports, serious risks of injury to other athletes. Certainly, differences in elite performances between men and women, as well as failed attempts by women, such as Annika Sorenstam, to compete successfully in men’s events, show that women would essentially be excluded from competition if there is no separate women’s event at the elite level. The increasing reluctance of sports federations to allow male-to-female transgender athletes to participate in women’s events, is, therefore, understandable.
Perhaps it is now time for the International Olympic Committee (IOC) to step up and provide guidance to sports federations. Over the past 15 years, the IOC has kept remarkably quiet on these matters. What is required, is a global congress that involves medical experts, lawyers, sports scientists and social scientists, to come up with a justifiable and workable solution to the difficulties posed by binary male/female gender differentiation in sport, particularly at the elite level. This should also address the current dichotomy between the treatment of DSD athletes, where manipulation of endogenous testosterone after puberty is held to affect athletic performance, and transgender athletes, where manipulation of endogenous testosterone after puberty is said to have no significant effect on sports performance. Both positions cannot be sustained, and one must yield to the other!
Prof Dr Steve Cornelius may be contacted by e-mail at ‘
