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Transgender athletes and the law

Trans-rights have become one of the most hotly-contested equality issues of our time.  There is a passionate (and often intemperate) public debate about whether it is ever fair to exclude trans-women or trans-men from single-sex activities or facilities.  Sport is one of the key battlegrounds, with these issues being debated by sporting regulators and, increasingly, the courts.   

It seems to be widely accepted that if trans-men wish to compete in men's sports, that is a matter for them (although this appears to be very rare in practice).  More controversial is whether it is fair and safe for trans-athletes to compete against natal female athletes in women's sport, and on what terms.  Currently, virtually all sporting bodies (such as the IOC) allow such competition without requiring surgery, providing that the trans-athlete consistently declares their gender as female and demonstrates reduced testosterone levels for at least one year prior to the competition and during it.  The thinking is that participation in sport as appropriate to one's gender identity is a human rights issue and both safety and fairness issues can be addressed through the testosterone suppression requirement.

However, that consensus is increasingly being challenged.  A US court has held that state laws permitting trans-athletes to compete in women's school and college sport violated the rights of female competitors under US equality legislation.  Around the same time, a report prepared by World Rugby found that natal female players were at increased risk of injury when tackled by trans-women who had gone through male puberty, even when they had complied with IOC testosterone requirements.  World Rugby has now gone one step further and, on 9 October 2020, published its Transgender Guideline which determines that trans-women who transitioned post-puberty cannot currently play women's rugby because of the resultant player welfare risks this creates.  Trans-men may play men's rugby having provided "confirmation of physical ability", but cannot play women's rugby after the process of sex reassignment has begun if this reassignment includes supplementation with testosterone. 

How should UK sporting bodies approach the issue – and what does the law require?  The starting point in discrimination law terms is the Equality Act 2010.  The Act prohibits various forms of discrimination on the basis of sex or gender reassignment but sets out exemptions for sporting activities in which "the physical strength, stamina or physique of average persons of one sex would put them at a disadvantage compared to average persons of the other sex as competitors in events involving the activity".  That covers most sports, with perhaps some exceptions for equestrian sports and shooting.  It is lawful to restrict the participation of people undergoing gender reassignment if necessary to secure fair competition or the safety of competitors.

Three key points are worth bearing in mind.  First, the Act doesn't protect everyone who may consider themselves trans-, or non-binary – only those who have undergone, are undergoing or plan to undergo gender reassignment.  This doesn't always require surgery but does require more than self-declaration.  Second, in discrimination law, 'necessary' usually means that there is no less discriminatory alternative to achieve the desired result – so any restrictions need clear justification backed up by evidence.  Finally, what constitutes 'fair' and 'safe' in the context of sport is not a straightforward issue.  All sport involves risks to the competitors – particularly contact sports – so there would need to be clear evidence of additional risks going beyond what is reasonable for the sport in order to justify restrictions.   World Rugby's Guideline takes into account scientific literature and expert input and refers to the 'unique and specific challenges' of the sport.

Fairness based on physical characteristics is even more complex.  Sport – and particularly elite sport – celebrates extraordinary bodies.  Elite athletes are physical anomalies in a whole host of ways, from the lung capacity of a Tour de France competitor to the tiny stature and muscular strength of elite gymnasts.  Are the physical advantages of male puberty so significant as to outweigh genetic luck and hard work?  The difficulty for regulators is that the science is somewhat contested and people have very different ideas of what is 'fair' in this context.  The UK doesn't have a direct equivalent of Title IX, the US legislation which enabled female athletes there to bring their claims.  The controversy over Caster Semenya, a female track athlete with exceptionally high testosterone levels (hyperandrogenism), illustrated how difficult it is to determine fairness.   

The Paralympics disability grading system might offer one solution – but a 'hormone grading' system could result in separate categories for male and female competitors, and then another category of trans and intersex athletes and those with disorders of sexual development.  Many people would consider this stigmatising and intrusive.

At present, it would be a brave move to diverge from the IOC approach, as there is certainly scope for legal challenges.  World Rugby stands a better chance than most of fending off any discrimination claims, given the intensely physical nature of the sport and the potential for catastrophic injury.  But regulators should not duck the hard questions posed by trans-participation in sports, whether at amateur or elite level – this is an issue which will not go away.  Regulators should stay on top of the scientific evidence and review their policies regularly to ensure that they are confident (or as confident as they can be) that they strike the right balance.

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