Trans athletes have right to compete so some ‘tolerable unfairness’ may be necessary

Fifteen years ago, South African runner Caster Semenya was publicly scrutinised over her sex at a major sports event. History repeated itself at the recent Paris Olympics when the International Olympic Committee (IOC) cleared Imane Khelif and Lin Yu-ting to compete in the women's boxing competition.

Both women were subjected to scrutiny over their sex after the International Boxing Association (IBA) claimed they failed verification tests for last year’s Women's World Championships – while providing little information about these checks.

Olympic officials called the IBA’s testing “so flawed that it’s impossible to engage with it” and stressed that both boxers were assigned female at birth, identify as women and are eligible to compete in women’s competitions. 

Systematic exclusion

Transgender inclusion in sport is one of the most difficult issues facing international federations and national sports governing bodies. The real problem is not that trans athletes will dominate sports, but that they are being systematically excluded from them.

We have seen the female category being opened up to transgender athletes who were born male by most national and international sport governing bodies worldwide. This sort of transgender sporting policy is hailed as inclusive.

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However, whilst sex segregation has proven to be a powerful tool to expand participation to include girls and women, the world is not neatly divided up into binary categories of sex. A small part of the population challenge the binary classification.

There are those people who are born with natural variations of sex characteristics that mean that they cannot be categorised unproblematically as male or female. Caster Semenya is perhaps the best-known athlete in this respect.

Male performance advantage

Moreover, and to confuse things further, there’s more to male performance advantage than someone’s current testosterone levels. The legacy effect of exposure to high levels of testosterone in early life and puberty is well known.

Growing up male will give transgender athletes a lifelong edge that simply cannot be fully negated by a period of testosterone suppression. Testosterone reduction does not undo the many performance advantages of male puberty, and there is no known intervention which can do so.

So where does this leave sports federations and their desire to have an inclusive policy that fully includes transgender athletes, whilst ensuring fair and meaningful competition? As a starting point, we could look at the Olympic charter, which states that: “The practice of sport is a human right. Every individual must have the possibility of practising sport, without discrimination of any kind.”

Fair play

Like all human rights, it should apply universally, but also with a recognition that it does not confer an absolute right. However, some would argue that the concept of fair play is being undermined by transgender sport policy.

It is a long-established principle that fair and meaningful competition is achieved by grouping different body types into different categories. This is why sport is divided into male and female sex categories.

In both UK and international law, it is lawful to exclude the male sex from female competition to uphold fairness and safety for women. The need for policy arises from the fact that many sports are organised into sex categories in a way that would be almost certainly illegal in other sectors of the economy in many countries.

Nonetheless, in the absence of a compelling reason to exclude transgender athletes, should there be an assumption of inclusion based on gender self-identity? 

The parameters of unfairness

The concept of fairness in sport is actually misleading. The purpose of sport is very often to bestow plaudits upon those people who have been blessed with abilities denied to the majority. Nonetheless, fairness of competition appears to be a prerequisite for a sporting contest worthy of its name.

This being the case, the question that sporting federations might want to consider is what are the parameters of unfairness, if any, that our sport usually allows, considering it to be tolerable? Secondly, is there evidence to suggest transgender athletes breach those parameters? Thirdly, is the breach due to being transgender rather than some other non-gender related reason? 

If there is an unfair advantage gained by transgender athletes, then there should be an entitlement by the respective sporting federation to introduce criteria that would bring any advantage down to within the parameters of tolerable unfairness.

Performance benchmarks

An approach judged on performance times, records and so forth might offer a solution and define a benchmark. So, for example, if we take the difference between the winner and the last-placed athlete in the women’s 100m final in the Paris Olympics, the gap was 3.12 seconds while between the gold and silver medallists it was 0.15 seconds. These differences might act as a benchmark for 100m women’s races. 

Similarly, this ‘formula’ could be used across athletics as a whole and it would be fairly straightforward to use multiple race times to produce more accurate figures for the normal differences in race times between competitors. This empirical approach would provide a benchmark of parameters that is normally regarded as acceptable within the limits of tolerable unfairness. 

Only if trans women, taken as a group, exceed the parameters can it be regarded as unfair. It is an inclusive system that gives effect to the right to participate in elite sport while balancing the needs of other athletes.

A human right

In the debate surrounding the inclusion of transgender athletes, many argue that transgender women should not compete in elite women's sport, but others argue that sport should be more inclusive. The debate centres on the balance of inclusion, sporting fairness and safety in women's sport, and whether transgender women can compete in female categories without an unfair advantage. 

One thing is certain, the debate will continue to grow and is not easily solved. However, the practice of sport is a human right and trans athletes cannot be denied this right to compete in top-level sports without compelling and overwhelming evidence – both scientifically and legally – that this should be the case.

David Winnie is head of sport at law firm Gilson Gray