Exclusion of genetically dissonant athletes and transgender athletes from sports competitions: a reflection on sports law and justice
By Lucien Valloni & Sara Botti, Valloni Attorneys at Law, Zurich, Switzerland
Formulating a clear, firm, and decisive position of what is fair or unfair, just or unjust, proportionate or disproportionate in the context of athletes, genetics, and balanced competition is complex and has been described by the International Olympic Committee (IOC) as a “minefield”.
Recently, in Italy and globally, there has been intense, and sometimes erroneous, discussion about the case involving the Olympic competition between the Algerian athlete and an Italian boxer, a challenge won fairly by the former in just 46 seconds!
The case has sparked interest from politicians, Italian and international institutions, raising suspicions of potential competitive imbalance linked to two factors: testosterone and the genetic characteristics of the Algerian athlete. However, it is disrespectful to focus solely on this specific case whilst ignoring other athletes, who in the past have been excluded or admitted to competitions, or who await future decisions, due to genetic dissonances.
One certainty is that, at present, nothing is certain, and this uncertainty will persist for a long time. Sports federations, international bodies, the IOC, and every entity with decision-making power regarding the eligibility of athletes with uncommon, rare, or special genetics, have different perspectives on the matter.
The IOC opens its "Joint Paris 2024 Boxing Unit/IOC Statement" of 1 August 2024, with the phrase: "Every person has the right to practise sport without discrimination." No one in the field of sports law and sports justice can contest or oppose such a broad, inspiring, and motivating statement.
The crucial, difficult, and problematic point is to establish whether this principle truly and always applies to all athletes in competition. Everyone has the right to practise sport without discrimination, but does participating in an Olympic event simply mean practising sport, or does it involve fulfilling a life project, even a professional one, with enormous economic implications for the individual?
The question to ask is whether the right to practise sport without discrimination includes the right of athletes to compete against those characterized by the issue in question without suffering an unfair competitive advantage. To answer this question, it is necessary to set aside codes and regulations and rely on science and substance, asking experts to describe what constitutes a competitive advantage.
Competitive advantage
In marketing, the competitive advantage of a business can be defined, in preliminary terms, as the basis for the superior performance of the business, usually in terms of profitability, compared to the average of its direct competitors in the relevant sector, over a medium-long term period. In sports, competitive advantage can be defined as those characteristics, strategies, or conditions that allow an athlete, team, or sports organization to outperform their competitors.
Normally, in the sports context, a fair competitive advantage should pertain to talent, physical and mental abilities, technique, training conditions, motivation, recovery programs, injury management, and nutrition. Anything beyond this could constitute an unfair, forced, or imposed advantage, such as doping.
Testosterone, competitive advantage, and genetic dissonance
An important but superficial aspect of the debate concerns the admission of transgender people, particularly transgender women, to competitions, that is, people who were assigned male at birth but have transitioned to the female gender. According to some, allowing transgender women to compete in female sports gives them an excessive advantage over women assigned female at birth.
The current case, which has garnered such global attention, does not directly involve transgender women (see the statement by the IOC), but has a common element: testosterone. It is generally alleged that transgender women, and specifically the athlete in question, have had testosterone levels in the past that are significantly dissonant with those typically found in women.
The indisputable fact is that testosterone, a steroid hormone, can confer a competitive advantage, so much so that it is used improperly as a doping substance and is considered the prototype of anabolic steroids. WADA (World Anti-Doping Agency) includes it in the "List of Prohibited Substances and Methods" in the section "PROHIBITED AT ALL TIMES (IN- AND OUT-OF-COMPETITION)," citing testosterone and its variants as a prohibited substance.
If only women with normal hormonal levels are allowed to compete in the Olympics, there can be no suspicion of competitive advantage. This principle should apply to all transgender women and to all women characterized by complex genetics.
The question remains whether genetic characteristics alone constitute a competitive advantage. But competitive advantage over whom? Over everyone, as if we were talking about a super-athlete, or over women, considering the context of female competition? Today, it is probably not possible to provide a definitive answer: only the genetics of sport can clarify this issue.
The position of the IOC and sports law
After the obvious and somewhat predictable statement by the IOC that everyone has the right to practise sport without discrimination, the communiqué of 1 August 2024, states that all athletes participating in the boxing tournament of the Paris 2024 Olympic Games comply with the competition’s eligibility and entry regulations, as well as all applicable medical regulations set by the Paris 2024 Boxing Unit (PBU). As with previous Olympic boxing competitions, the gender and age of the athletes are based on their passport.
The problem is not so much about compliance with the rules, which is not contested, but the excessive breadth of the rules, the enormous interpretative power of national and international federations, and the regulatory gaps that effectively impede the exercise of sport without discrimination.
Two examples
The example of FINA (International Swimming Federation) is significant: it establishes that transgender women who have experienced male puberty – formally set at the age of 12 – cannot compete in women's events. In fact, it is a closure since it is practically impossible, from a medical and health perspective, to prevent male puberty in view of a transgender path.
The World Rugby Federation is equally clear in closing the doors to transgender athletes, stating that "transgender women may not currently play women's rugby" due to the size, strength, and power advantages conferred by testosterone during puberty and adolescence, and the resulting player welfare risks that this creates.
Conclusion
With such a broad and evolving subject, it is impossible to make predictions and advise the athletes involved. If, as the IOC asserts, unfair competitive advantage is excluded whenever the rules are followed, we must rely on these, although this removes a reasonable expectation of certainty and adherence.
In the legal field, it is imperative that the analysis and regulation regarding the participation of transgender athletes in sports competitions are guided by principles of fairness, respect for human rights, and sports integrity. Not only is it essential to protect the athlete undergoing analysis, ensuring that they are not discriminated against based on their gender identity or genetic characteristics, but it is equally essential to protect the interests and rights of athletes who have dedicated their lives, training, and professionalism to sport.
Balancing these two principles requires an accurate and scientifically based assessment of the conditions that might confer an unfair competitive advantage, without ever losing sight of the obligation to respect the dignity and rights of all athletes involved. However, it is essential to never forget the prevailing right to health. The challenger must know who they are challenging and must modulate their efforts and limits accordingly. The connection between sport and physical well-being is fundamental; the body must be protected. In this way, sports law can play its crucial role as an impartial arbitrator, promoting a fair and inclusive competitive environment in which every athlete can realize their potential without being unfairly penalized or advantaged.
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