Zulay Valencia Diaz
Loyola University Chicago School of Law, JD 2024
The fight for inclusion and equality in sports has been a long and ongoing battle. In recent years, the participation of transgender athletes at the professional level has been one of the most contentious issues. Even as countries like the US have made strides to advance equality for transgendered people, the world of athletics has struggled to find a way of allowing trans athletes to participate while assuaging claims of unfairness and safety concerns. With their decision to ban all trans athletes from participating in women’s sports, World Athletics – which governs track and field worldwide – has once again brought this hotly debated issue to the forefront. The decision has raised questions about the future of transgender athletes in sports and highlights the ongoing challenges they face in achieving full inclusion and equality.
A few months ago, World Athletics began consulting its stakeholders to once again determine what its stance on trans women athletes’ participation in women’s sports would be. Athletes, coaches, member federations and representatives of the International Olympic Committee (IOC) all weighed in on this process, which resulted in the March 2023 announcement. According to the new policy that went into effect at the end of March, athletes who transitioned after going through puberty will be ineligible to participate in competitions held by World Athletics. This has effectively prohibited most trans athletes from participating in track and field world events. Additionally, athletes who have differences of sexual development (DSD) will not be permitted to compete internationally unless they reduce and maintain their testosterone at 2.5 nanomoles per liter for at least six months before a competition. DSD are medical conditions that are of interest to athletics because they can lead to higher testosterone levels. These new policies are a significant departure from previous regulations. In the past, World Athletics did not bar trans women from competing in women sports so long as their testosterone levels were in compliance with the 5.0 nanomoles per liter regulation.
History of exclusion
The World Athletics Council’s decision to effectively ban most trans athletes from competing in female sports is unfortunately not a shocking one. Athletes who do not fit neatly into the male-female biological sex binary have long faced discrimination and obstacles when it comes to participating in athletic organizations. Regulatory bodies have routinely implemented regulations that negatively impact both cisgendered women with DSD and trans women. For example, the International Association of Athletics Federation (IAAF) introduced rules in 2018 that required female athletes with DSD participating in competitions that ranged from 400 meters to a mile to maintain their testosterone levels at a maximum of five nanomoles per liter, and to maintain this level at all times to retain eligibility. Under these regulations, athletes like Caster Semenya—a South African track and field Olympic champion—would have to either use birth control or other hormone therapy to reduce their natural testosterone levels, or forfeit competing altogether. Semenya challenged these regulations in the Court of Arbitration for Sport but lost the case. As a result, she was forced to compete in the 5,000 race which was not affected by the regulations. Other female athletes with DSD have been similarly impacted by the 2018 regulations.
The push for limiting, if not outright banning, trans athletes and female athletes with DSD from competing in women’s sports is ostensibly rooted in a desire for fairness and safety. In 2022, the International Swimming Federation (FINA) also adopted a new policy barring anyone who had transitioned after the age of 12 from competing in women’s swimming. They cited a desire for fairness as the catalyst for this regulation. All the regulatory bodies that have implemented similar policies point to science which they say unequivocally demonstrates that having higher levels of testosterone provide advantages which would be unfair in a professional competition. Spokespersons for athletic governing bodies have proposed either creating open categories where athletes of all genders can compete against one another or making it only possible for trans athletes to compete in men’s sports. Notably, there are currently no trans athletes participating in the sports whose governing bodies have passed these policies.
As the experiences of athletes like Caster Semenya show, the rules implemented by athletic regulatory bodies are far from fair. In fact, they openly promote discrimination and exclusion based on sex and biology. So, when people like Sebastian Coe, the president of the World Athletics Council, tout fairness as a driver of these policies, it begs the question: fair for who? Given the language used by proponents of the policies, it appears that only the interests of cisgendered female athletes who neatly fit into a biological sex binary are being uplifted.
Athletic organizations have been careful to word their policies in a way that doesn’t explicitly ban trans athletes and women with DSD but rather rely on science that is still being disputed. It is imperative that neither trans nor cisgendered women with DSD be discarded in this push for “fairness and equality.” In light of this new restrictive trend, it is important that entities such as the IOC take steps to make sure that affected athletes don’t have their careers derailed by uncertain science and discriminatory policies.