Editor's note: Conor Talbot is a Solicitor at LK Shields Solicitors in Dublin and an Associate Researcher at Trinity College Dublin. He can be contacted at ctalbot@tcd.ie, you can follow him on Twitter at @ConorTalbot and his research is available at www.ssrn.com/author=1369709. This piece was first published on the humanrights.ie blog.

Sport is an integral part of the culture of almost every nation and its ability to shape perceptions and influence public opinion should not be underestimated.  The United Nations has highlighted the potential for using sport in reducing discrimination and inequality, specifically by empowering girls and women.  Research indicates that the benefits of sport include enhancing health and well-being, fostering empowerment, facilitating social inclusion and challenging gender norms.

In spite of the possible benefits, the successful implementation of sport-related initiatives aimed at gender equity involves many challenges and obstacles.  Chief amongst these is the way that existing social constructs of masculinity and femininity — or socially accepted ways of expressing what it means to be a man or woman in a particular socio-cultural context — play a key role in determining access, levels of participation, and benefits from sport.  This contribution explores recent developments in the interaction between transgender and intersex rights and the multi-billion dollar industry that the modern Olympic Games has become.  Recent reports show that transgender people continue to suffer from the glacial pace of change in social attitudes and, while there has been progress as part of a long and difficult journey to afford transgender people full legal recognition through the courts, it seems clear that sport could play an increasingly important role in helping change or better inform social attitudes.

Background

“The practice of sport is a human right.  Every individual must have the possibility of practising sport, without discrimination of any kind and in the Olympic spirit, which requires mutual understanding with a spirit of friendship, solidarity and fair play.” - Olympic Charter

While proclaiming the practice of sport to be a human right, the Olympic Charter unequivocally states that the International Olympic Committee (IOC) has “supreme authority” over the staging of the Olympic Games.  Under the IOC’s stewardship, and in line with other major sporting events worldwide, a narrative has been carefully cultivated to the effect that events such as Olympic Games would not be possible without the support and resources of the broadcasters and, ultimately, sponsors.  Therefore, while on the one hand, the use of sports as a development tool and strategy to reduce discrimination generally is growing, there is also a distinct field of commentary which is critical of the approach of the Olympic “industry”  (indeed, the term "industry" is used to  draw attention to the profit-making goals of the Olympics).

Given the top-down nature of sporting governance, research from Wales and Scotland reveals that whilst many lesbian, gay, bisexual and transgender people continue to be put off by negative experiences or the perception that it is an unpleasant and unsafe environment for LGBT people.  This post focuses in particular on the treatment of transgender and intersex athletes under the rules enforced by international sporting federations.  In attempting to get ahead of the curve with transgender issues, with the stated aim of protecting the sporting integrity (and therefore the reputational and commercial value) of competitions by minimising sex-related advantages, the IOC has a long history of insensitive and often unproductive testing protocols for athletes.  As it is probably the most visible of all international sporting federations, the IOC became the standard bearer for such testing policies and, indeed, it has been argued that IOC policies gave impetus (and sometimes political cover) for other groups to follow suit.

Gender/Sex Verification Tests and the Stockholm Consensus

The issue of gender- or sex-verification gained global attention in recent times after South African runner Caster Semenya was ordered to undergo tests after winning the 800m world title in 2009.  She was eventually cleared to compete by the IAAF and won silver in the 800m at the 2012 London Olympics.

IOC had maintained a practice of conducting gender verification tests at the Olympic Games, with the testing of Dora Ratjen in 1938 and Foekje Dillema in 1950 being early cases to gain attention.  The initial testing protocols amounted to rather crude and undoubtedly humiliating physical examinations.  These techniques later gave way to the method of determining ‘sex’ chromatin through buccal smear examination, introduced at the Mexico City Olympic Games in 1968. Chromosome-based screenings were criticised for being unscientific and unfairly excluding many athletes, in particular since only the chromosomal (genetic) sex is analysed by sex chromatin testing, not the anatomical or psychosocial status.  These techniques were abandoned by the IAAF in 1991 and the IOC since Sydney 2000.

Under the so-called Stockholm Consensus, the IOC granted permission for men and women who had undergone gender reassignment surgery to participate in competitive sport.  The Consensus recommended that individuals undergoing sex reassignment from male to female after puberty (and the converse) be eligible for participation in female or male competitions, respectively, once surgical anatomical changes had been completed (gonadectomy), legal recognition of their assigned sex had been conferred; and verifiable hormonal therapy had been administered for a sufficient length of time to minimise gender-related advantages. Under the Consensus, eligibility for competition could begin no sooner than two years after the athlete’s gonadectomy.

Regulation of Hyperandrogenism in Female Athletes

Hyperandrogenism is a term used to describe the excessive production of androgens (testosterone).  Given its influence on endurance and recovery, controversies have arisen in the past surrounding cisgender women athletes with high levels of testosterone.  An Indian sprinter, Dutee Chand, was suspended by the IAAF in 2014 due to her elevated testosterone levels.  However, the Court of Arbitration for Sport (CAS) suspended the IAAF rule in July 2015, on the grounds that the IAAF had failed to prove that women with naturally high levels of testosterone had a competitive edge.  The CAS ordered the IAAF to present new scientific evidence regarding the degree of competitive advantage enjoyed by hyperandrogenic females by July 2017, otherwise its 2011 Regulations Governing Eligibility of Females with Hyperandrogenism to Compete in Women’s Competition would be declared void. 

While Chand was cleared to compete following her high profile appeal, a study published in April 2013 in the Journal of Clinical Endocrinology & Metabolism, a US peer-reviewed journal for endocrine clinical research, recounts the rather less fortunate fate of four anonymous young athletes who, it appears, were effectively forced to undergo surgery to allow them to compete in women’s sports ahead of the 2012 Olympics.  When the story emerged in June 2013, the IAAF reportedly denied that it had taken place.

The young women, who were 18, 20, 21, and 20 years of age at the time of the study, came from rural or mountainous regions of developing countries.  Clinical inspection of the women revealed varying degrees of intersexuality: they had never menstruated and had male bone characteristics, no breast development and partial or complete labial fusion.  Consanguinity was confirmed for three of them (first cousins in two cases and siblings in another) and was suspected in the fourth case with her parents originating from neighbouring villages.  The authors of the report opine that the gender abnormalities of the athletes may not have been formally diagnosed or given medical attention because they had been born in rural regions of countries with poor care.  In all cases, they were tall, slim, muscular women and had manifested strong motivation and high tolerance to intensive daily training, which had made them good candidates for elite sports competition. 

Rather than requesting gender change, the study reports that the athletes wished to maintain their female identity in order to continue elite sport in the female category.  Although leaving male gonads carried no health risk, and despite the negative effect that a gonadectomy would have on their performance levels and general health, the athletes underwent the feminising surgical procedures.  The study concludes that the sports authorities then allowed them to continue competing in the female category one year after their procedures.  The radical nature of the surgery required, as well as the unknown future impact on the athletes’ health, highlight the dangers of such policies for inclusion in women's sporting events.

New IOC Guidelines

Under new IOC Transgender Guidelines, which were reported as stemming from an unpublicised Consensus Meeting on Sex Reassignment and Hyperandrogenism, surgery such as that described above will no longer be required.  Female-to-male transgender athletes are now eligible to take part in men’s competitions “without restriction”, while male-to-female transgender athletes will need to demonstrate that their testosterone level has been below 10 nanomols per litre for at least one year before their first competition.  That said, the IOC document does contain a provision allowing for a the imposition of a period of longer than one year, based on a confidential case-by-case evaluation, considering whether or not 12 months is a sufficient length of time to minimize any advantage in women’s competition.  No further detail is provided on the nature of these case by case evaluations so it is unclear just how much progress these guidelines actually represent compared to the crude sex verification tests used in the past.  Again, the IOC justifies these regulations as being necessary to avoid accusations of an unfair competitive advantage. 

The IOC document also refers directly to CAS decision in relation to Dutee Chand.  Specifically, the IOC encourages the IAAF, with support from other International Federations, National Olympic Committees and other sports organisations, to revert to CAS with arguments and evidence to support the reinstatement of its hyperandrogenism rules.  Therefore, the IOC’s appears to contest the validity of the CAS award and seems determined to provide scientific grounds for upholding its ban on female athletes with elevated levels of testosterone, even where it is naturally occurring and the athletes’ bodies are partially unable to process it.

Taken together, the net result of these regulations is that if a female transgender or intersex athlete’s natural testosterone levels are considered too high, she is expected to undergo treatment to reduce her testosterone to levels considered to be within the normal range for women before being allowed to compete in women’s sports.  This has come to be the subject of severe criticism because it is argued that such athletes are being medically harmed by sport under these regulations.  Testosterone is essential for the development of male growth and masculine characteristics, and is vital for any athlete in aiding recovery times from physical exertion.  Although the health effects of the presence of high levels of testosterone in women’s bodies is still the subject of research, testosterone occurs naturally in both males and females and would appear to be vital for the body’s all-round health.

Kristen Worley Litigation

The potential for these testosterone limits to lead to harm to the athletes involved is the focus of a major case being brought by a Canadian cyclist, Kirsten Worley, a female athlete who has transitioned from male to female by undergoing sex reassignment surgery with the result that she no longer produces either testosterone or estrogen.  She alleges that the Ontario Cycling Association and Cycling Canada Cyclisme gender verification and anti-doping rules discriminate against her on grounds of sex, contrary to the Canadian Human Rights Code.  The rules in question are based on the Union Cycliste Internationale (UCI) directives which are, in turn, based on IOC policies.  Worley claims that these policies have damaged not only her ability to continue taking part in competitive cycling, but also her health. 

Interestingly, Worley effectively bypassed international sport's usual dispute-settlement procedures by bringing her claim through the mainstream human rights judicial instances.  After the preliminary issue of whether the respondents received effective legal notice, a further dealy was caused when the IOC requested that the Tribunal defer consideration of Worley’s application pending the completion of a judicial review application commenced by the IOC.  The IOC also argued  that the Human Rights Tribunal of Ontario was not competent to hear the case, since it concerns sporting rules.  Likewise, the UCI objected to the Tribunal’s ability to adjudicate and argued that the UCI Arbitral Board and/or the Canadian Center for Ethics in Sport are the competent authorities to address the allegations contained in Worley’s application. 

Next Steps

Importantly, the court hearing the preliminary proceedings in the Worley application held that it is established law that parties cannot contract out of the Canadian Human Rights Code’s protections.  Therefore, the court rejected the proposition that the Human Rights Tribunal lacked jurisdiction purely because there are alternate mechanisms to which Worley could have, but did not, file a claim.  As such, the Worley litigation is extremely interesting as it will be a rare instance of the sheltered world of international sporting organisations being subjected to the full rigours of human rights principles.

It will be very interesting to follow how this claim is dealt with by the Canadian courts, and received by the international sporting community generally, in the months and years to come.  Worley herself has pursued this campaign for over a decade and, given the publicity garnered by the latest steps in her litigation, it now appears to have the potential to inspire other athletes to avail of human rights avenues to open up sports-based disputes to courts of law rather than courts of arbitration.  From the IOC’s perspective, it is clear that it has a legitimate interest in acting to preserve fair competition but this agenda cannot be pursued irrespective of the repercussions.  The most recent changes to its Transgender Guidelines are expressly stated to have been introduced in recognition of how requiring surgical anatomical changes as a pre-condition to participation may be inconsistent with “notions of human rights”.

If nothing else, the new IOC Transgender Guidelines proves that international sport does not operate in a vacuum and is capable, to some extent at least, of reflecting social progress.  However, it remains to be seen whether the most visible sporting governance body is prepared to play a true leadership role in utilising all the benefits of sports in helping to change perceptions of transgender and intersex athletes.  In that sense, the Kirsten Worley litigation represents a crystallisation of a struggle to apply human rights principles in a new area and, as such, will be worthy of our attention going forward.