By Ennio Bovolenta, Valloni Attorneys at Law, Zurich, Switzerland
Introduction
As the Paris 2024 Olympic Games get closer, the participation of transgender athletes remains a highly debated and evolving topic within the sports community.
Shortly after the last edition of the Games (Tokyo 2020), the International Olympic Committee (IOC) has issued updated guidelines to address the inclusion of transgender athletes, balancing the principles of fair competition and inclusivity.
This post will explore the IOC existing legal framework and how the international sports federations are implementing these guidelines to admit transgender athletes to compete.
IOC Legal Framework
In November 2021, the IOC released the updated guidelines: “Framework on Fairness, Inclusion and Non-Discrimination on the Basis of Gender Identity and Sex Variations”.
This followed a two-year consultation process with more than 250 athletes and concerned stakeholders, which took place in the context of growing discussion about the best ways to support trans athletes and athletes with sex variations to compete in sport in ways that affirm their identity and well-being, whilst also ensuring meaningful and fair competition. The Framework constitutes the IOC’s guidance on this topic to sports bodies although, like the previous guidelines (back to 2015), it is not legally binding. Therefore, as in the past, the ultimate decision lies on the concerned international sports federations (IFs), which remain responsible for setting eligibility rules for their sports.
Before analysing the IFs approach, let us have a look at the IOC guiding principles set out in the Framework:
- Inclusion: Ensuring all athletes can participate in sports without discrimination, regardless of their gender and/or sex variations.
- Prevention of harm: Prioritisation of the physical, psychological, and mental well-being of athletes.
- Non-discrimination: Preventing exclusion based on gender identity or sex variations.
- Fairness: Maintaining fair competition and preventing unfair and disproportionate competitive advantages for athletes.
- No presumption of advantage: Avoiding assumptions about competitive advantages based solely on gender identity or sex variations.
- Evidence-based approach: Restrictions arising from eligibility criteria should be based on robust and peer reviewed research.
- Primacy of health and bodily autonomy: Respecting athletes' physical and mental health: IFs should not pressure athletes to undergo unnecessary procedures and treatments to meet eligibility criteria.
- Stakeholder-centered approach: Need to involve athletes and other relevant stakeholders in the development and review of the eligibility criteria.
- Right to privacy: Protecting athletes' personal information and privacy, including the treatment of athletes’ medical information.
- Periodic reviews: IFs should regularly update the eligibility criteria to reflect new scientific knowledge and ethical, legal and human rights developments.
Implementation by the IFs
Whilst the IOC principles apply transversely, nevertheless it is clear that the factors that matter to sports performance are unique to each sport, discipline, and/or event. Consequently, the IFs’ approach to transgender athletes' participation can vary significatively from sport to sport. Here are examples of how different IFs are addressing this issue:
- World Athletics: In 2023, the World Athletics Council updated its eligibility regulations, excluding from elite women competitions transgender women (i.e. an individual who is identified as male at birth and experienced a testosterone-driven puberty but identifies and lives as a woman) who had gone through male puberty and tightening testosterone levels for other athletes.
- World Aquatics (former “FINA”): in 2022, it had adopted similar provisions, preventing athletes who had experienced male puberty from participating in elite women competitions. These provisions were recently challenged before the Court of Arbitration for Sport (“CAS”) by Ms. Lia Thomas, a 24 old American transgender woman swimmer. CAS, however, dismissed the case based on the athlete’s lack of standing to challenge the above-mentioned provisions (CAS 2023/O/10000 Lia Thomas v. World Aquatics – award 10 June 2024). Interestingly, World Aquatics has also opened to the creation of category dedicated to all transgender athletes, which was experimented in the 2023 World Swimming Championships in Berlin; however, collecting no entries.
- Union Cycliste Internationale (UCI): in 2023, followed a similar approach, announcing that transgender athletes who have transitioned after (male) puberty will be prohibited from participating in women's events on the UCI International Calendar – in all categories – in the various disciplines.
- World Rugby: World Rugby has taken a more restrictive stance, barring transgender women from competing in elite women's rugby due to concerns about safety and risk of injuries.
- International Cricket Council (ICC): it has adopted a similar approach to transgender women in 2023, based on “the protection of the integrity of the women's game, safety, fairness and inclusion”. However, the ICC also announced a revision of its regulations within two years.
- International Tennis Federation (ITF): in August 2023, it updated its transgender policy and it provided that a transgender woman must have a specific maximum testosterone level at least 12 months prior to a competition, with the requirement for a longer period reserved for a case-by-case basis.
- Other IFs provide specific testosterone levels for transgender women athletes, such us International Weightlifting Federation, World Triathlon and Archery.
Challenges towards Paris 2024
The participation of transgender athletes, in particular, transgender women in women’s elite sports, continues to generate significant debate and controversy.
Those against their inclusion usually argue that transgender women, who have gone through male puberty, have an unfair physical advantage over non-trans women, due to the impact of testosterone on their bodies even after transition. Those who oppose such restrictions on trans athletes argue they do not have a sporting advantage, and that bans are discriminatory.
In any event, it is clear that this issue is in continuous evolution and the IFs are constantly monitoring it, remaining committed to periodical reviews of their regulations, as also recommended by the IOC.
The IOC framework provides a flexible foundation, but the ultimate decisions rest with individual sports federations. These bodies must navigate complex ethical, scientific, and social considerations to develop policies that are fair, inclusive, and evidence based.
However, achieving a consensus, that satisfies all stakeholders, remains an ongoing challenge. The 2024 Paris Olympics will serve as a critical juncture in this ongoing dialogue, potentially setting precedents for future international competitions.
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