Transgender Athletes: Inclusion vs Fairness (Part 2)

The debate surrounding transgender athletes and the issues of inclusion and fairness (and safety) and, in particular, the participation of transgender women in sport looks set to run and run.

In part one of this two-part series, we reviewed the conclusions of the International Olympic Committee’s (IOC) new “Framework on Fairness, Inclusion and Non-Discrimination on the basis of Gender Identity and Sex Variations” issued on the 12 November 2021 (the Framework) and subsequent regulatory developments in various sports.

The Framework represents a key milestone in this area, concluding that individual sports and their respective international federations (IF) should be responsible for setting their own eligibility criteria for transgender athletes at an elite level.

FINA (Fédération Internationale De Natation), the IF for administering international competitions in aquatic sports, was one of the first IFs to adopt the Framework’s principle of autonomy. At its Extraordinary General Congress on the 19 June 2022, FINA members voted on the participation of transgender women in swimming, with 71.5% of members voting in favour of a policy requiring transgender women to have transitioned to female by the age of 12 or prove that they have “not experienced any part of male puberty beyond Tanner Stage 2” (when physical development kicks in) in order to be able to compete in women’s competition.

In this article, we:

1. Continue our analysis of the evolving regulatory landscape, specifically exploring the impact of the Sports Councils’ Equality Group (SCEG) review and its new guidance “The UK's Sports Councils Guidance for Transgender Inclusion in Domestic Sport”, which was published on 30 September 2021 (the Guidance).
2. Look in detail at a number of the practical considerations that IFs and national governing bodies (NGB) must address when creating or updating their transgender eligibility policies and the necessary supporting procedures (Policies and Procedures) to implement the eligibility criteria that they have determined for their sports (Eligibility Criteria).
3. Conclude by looking at additional emerging practical challenges that IFs and NGBs will need to address in the future.

In a case study, we also look at the ongoing position within rugby union and rugby league, including the current participation dispute between the Rugby Football Union (RFU), the NGB for rugby union in England and a transgender athlete.

SCEG Guidance

Over the course of 18 months the SCEG, which consists of the five Sports Councils responsible for supporting and investing in sport across England, Wales, Scotland and Northern Ireland, worked to assess the effectiveness of its existing guidance for the inclusion of transgender athletes in sport.

The review was divided into two parts. The first involved an extensive independent consultation which considered the views and experiences of hundreds of people within 54 sports and 175 organisations, from grassroots through to elite competition, including non-elite transgender sport in the UK. The second part explored the background to current policies domestically and internationally and considered the latest scientific findings relating to the inclusion of transgender athletes in sport, such as testosterone suppression in transgender women.

The review concluded that the inclusion of transgender women in female category sport presents a risk due to the differences in strength, stamina and physique between cisgender (people whose gender identity matches the sex that they were assigned at birth) and transgender women irrespective of whether the transgender woman has undergone testosterone suppression. The review also recognised that the existing SCEG guidance from 2013 was out of date and no longer fit for purpose and concluded that “…for many sports, the inclusion of transgender people, fairness and safety cannot co-exist in a single competitive model," and that a wider range of solutions needed to be identified. The Guidance like the Framework identifies “…a one-size-fits-all…” approach to transgender inclusion is not appropriate and that it must be within the remit of each sport and its governing body to determine its own criteria.

For many IFs and NGBs, the development of their Policies and Procedures will depend on a closer understanding of the gender-affected nature of their sports, and the priorities which they place on transgender inclusion, fairness and safety. The Guidance recommends that NGBs should use a decision-making framework when they are developing such Policies and Procedures based on the Guidance’s ten “guiding principles” and ultimately consider the following three options for their sports:

1. Prioritise transgender inclusion – prioritising the inclusion of transgender athletes into the sport's existing sex categories, which it recommended for sports that have "…determined that inclusion rather than fairness is the objective of the category." For such sports, it is recommended that a 5nmpl limit rather than the IOC’s former limit of 10nmpl would be more suitable for including transgender women or non-binary people recorded male at birth in its female categories; or
2. Female and open category – the introduction of "open" competition whereby; “…NGBs and SGBs may choose to offer sport in which the female category is protected for reasons of competitive fairness and/or safety if they are gender affected. These sports would offer both a female category and an open category. Female entries would be required to declare themselves as recorded female at birth”; or
3. Create additional versions (“universal admission”) – additional competitions created which are “…not dependent on a competitor’s sex or gender, and the classification based on the sex binary is withdrawn for this competition”. This could lead to adaptations such as non-contact versions of team sports, the introduction of handicaps or the use of non-traditional formats or distances.

Rugby case study

On 9 October 2021, World Rugby, the IF for rugby union, became the first IF to institute a ban on transgender women competing in global competitions like the Olympics and the women’s Rugby World Cup. World Rugby’s ban was announced months after a prominent Swedish study of 11 transgender women showed that after a year of testosterone inhibition, the women maintained the muscle strength in their thighs and lost only 5 percent of their muscle mass.

In June 2022, the International Rugby League (IRL), the IF for rugby league, issued a statement stating that transgender women will not be permitted to play in women’s international matches until the IRL’s formal transgender inclusion policy has been finalised, citing a need to balance a player’s right to participate with the safety of all participants.

Whilst World Rugby and the IRL have made their positions clear in relation to international rugby, the domestic rugby landscape has taken longer to affirm its stance, with each country being able to determine whether to continue to permit transgender women to participate in domestic rugby competitions. In July 2022 the council of the RFU, voted to amend its eligibility policy to “…only permit players in the female category if the sex originally recorded at birth is female…".  The Rugby Football League (RFL), the NGB for rugby league in England announced a similar ban in July 2022.

The RFU’s decision amounts to an absolute ban on transgender women playing female contact rugby in England. In response to this action, 52-year-old transgender player Julie Curtiss who had hoped to play for Hove RFC's women's team for the 2023-23 season has mounted a legal challenge against the decision. It is understood that Curtiss has asserted that the RFU’s policy discriminates against her under Section 7 of the Equality Act 2010. The RFU has released a statement confirming that it intends to “…robustly defend the cases…” and that it “…believe[s] any potential claim is without merit…”. The legislation legally protects people from discrimination in the workplace and wider society, but there are exceptions when it comes to sport. Section 195 says it is lawful to restrict the participation of transgender athletes from sporting competitions where physical strength, stamina or physique are important factors in deciding who wins. However, the restriction can only be done to ensure the competition is fair or the other competitors are safe. Essentially that means it would not be unlawful discrimination to refuse participation to a transgender athlete if the competition organisers can show that such athlete would have an unfair competitive advantage.

The RFU had until 30 September to respond to the allegation.

By contrast, in September 2020, Rugby Canada, the NGB for rugby union in Canada, rejected World Rugby’s stance and asserted that “…Rugby participation in Canada will continue to be guided by the organization’s existing Trans Inclusion Policy and the Canadian Charter of Rights & Freedoms,” in which gender identity and expression are protected. It sets a strong precedent that a major rugby governing body has recommitted to ensuring that all participants, including transgender women, have their right to participate upheld. In furtherance, of this position, the Canadian Women & Sport and the Canadian Centre for Ethics in Sport wrote to World Rugby, to express their strong opposition to the ban on transgender women athletes citing that such bans violate human rights.

Basic practical considerations for NGB policies and procedures

Once NGBs have determined their Eligibility Criteria it is essential that they create or update their existing Policies and Procedures and where necessary revise them in order to implement the application of this Eligibility Criteria within their sports.

In particular, the Policies and Procedures should:

• use appropriate language; for example, “transgender” as the use of the word “transsexual” is now widely considered to be offensive and/or discriminatory;
• differentiate (if required) between the Eligibility Criteria for contact and non-contact sporting disciplines;
• contain clear guidance for athletes in the event that the Eligibility Criteria includes hormone therapy including the use of testosterone, which in turn may give rise to anti-doping implications and the need for the athlete to obtain a Therapeutic Use Exemption (TUE);
• set out the procedures that must be followed when an athlete wishes to seek consent that they have met the Eligibility Criteria for example: details of the panel which shall consider the application; and the steps to be followed by both the panel and the athlete such as the provision of evidence by the athlete (including medical records), obtaining consent for the panel to liaise with the athlete’s medical practitioners and the provision of further information by the athlete if required by the panel;
• contain provisions for the panel to assess an athlete’s understanding and acceptance of the risks (both mentally and physically) associated with their participation in their desired sport and gender category and also the limits of the NGB’s authority to control the environment(s) within which they may compete, for example an inability to prevent transphobic comments from other athletes and/or spectators;
• be compliant with national laws including the Equality Act 2010 and any applicable data protection laws. As part of this process, NGBs need to ensure that their data and confidentiality policies, notices and provisions are fit for purpose. The NGBs must also ensure that their Policies and Procedures include all requirements of their IF except where such requirements conflict with the NGBs’ national laws;
• include provisions to support para-athletes, where necessary, in understanding the Policies and Procedures and to ensure support is available to para-athletes through the conduct of any procedures under the Policies and Procedures;
• afford the NGBs a right to amend the provisions of the Policies; and
• contain an appeal process under which a decision made by the panel may be challenged by the athlete making the application.

In addition to the Policies and Procedures, NGBs should consider whether they need to develop policies relating to:

• transphobia. NGBs may consider the introduction of a code of conduct (for all staff, athletes and spectators) addressing transphobia. NGBs may also contemplate the release of a public transphobia “zero-tolerance” statement; and
• changing rooms and other shared facilities.

Additional emerging practical challenges

      Additional emerging practical challenges that NGBs also need to be aware of include:

• • the increasing ease of changing one’s legal sex in some jurisdictions, compared to the difficulty or even impossibility of doing so in others. As a result, NGBs will need to consider whether legal recognition of transgender athletes in their preferred sex remains a necessary requirement (for example, where an individual has undergone full sex reassignment but remains unable to change his/her legal sex), or indeed a sufficient requirement (for example, where an individual has been able to change his/her legal sex without undergoing any form of medical intervention);
  • how to deal with the increasing recognition of a “third sex” i.e., something other than “male” or “female”, and sometimes referred to as “X” (now recognised in various countries including Australia, Bangladesh, Germany, India, Nepal, New Zealand and Pakistan); and
  • how to address the participation of intersex athletes i.e., individuals with so-called “differences of sex development”, who have a mixture of male and female sexual characteristics and may consider themselves either male or female.

No straightforward answer

As is clear from the above, the participation of transgender athletes in sport is a complex area with no obvious or straightforward answer. Neither the Guidance nor the Framework provide any prescriptive practical advice but rather task IFs and NGBs with determining their own Eligibility Criteria.

In doing so, NGBs will need to consider the issues of inclusion, fairness and safety whilst ensuring that they comply with any requirements of their IFs and the NGBs’ national laws. It is then imperative that NGBs create and/or update their Policies and Procedures whilst continuing to monitor developments in the sporting and medical landscapes, and if necessary, further update their Policies and Procedures accordingly.

Talk to us

Our sports sector team has significant expertise and experience in this area. Over the past 12 months we have advised three NGBs on their transgender participation policies, redrafted the eligibility and inclusion policy for an NGB and Chaired and sat as the Independent Legal Representative of two NGB transgender eligibility panels in three recent cases, one of which involved the evaluation of the application of a transgender male athlete to participate in the male category of a high-risk contact sport.

We were also instructed by British Swimming to advise on developments in legal and other issues relating to the participation of transgender and intersex athletes in sport. Following the decision of FINA (British Swimming’s IF) in June this year to introduce its “Policy On Eligibility For The Men’s And Women’s Competition Categories”, we advised British Swimming on its obligations to ensure compliance with such policy and we are now working with it to create a new transgender and intersex policy.

If you need support in this area, talk to us by completing our contact form below.