The Need for Consistent Transgender Policies in Sports
The Need for Consistent Transgender Policies in Sports
This Article has been written by Sneha Bhargava. The author is a second-year law student, pursuing B.A. LL.B. at O.P. Jindal Global University.
Transgender persons have historically been banned from participating in sports as they do not fall into society’s accepted male-female binary system. To participate in sports, they continue to face challenges like discrimination and banishment, forceful sex reassignment surgery, and hormone regulation. One of the major challenges is adhering to multiple policies, which are inconsistent and conflicting. The very incongruous nature of the policies for different sports at various levels has caused a lot of chaos and confusion, not to mention the added hardships to the transgender community. The question here is not about which sports policy is the best suited or which is the most discriminatory. It is rather about the hurdles these inconsistencies have caused, and the lack of consistent policies being created at a national and international level for transgender persons.
One of the early policies was the International Olympic Committee’s (IOC) Stockholm Policy of 2003, which allowed people to compete post a sex reassignment surgery followed by two years of hormone therapy. The amendment of 2015 scrapped the surgery but continued regulating testosterone levels. Currently, there exist numerous contradicting policies. For instance, while Ladies Professional Golf Association make either surgery or hormone regulation – or both, mandatory, the International Tennis Federation mandates a transwoman to have less than 5 nmol/L for at least 12 months – a longer requirement period based on evaluation, to determine whether 12 months is sufficient to minimise any advantages.
Chaos at International Level:
There are multiple international policies that are most conflicting and discriminatory.
For instance, The Football Association (FA) took out a policy on trans inclusion by allowing transsexuals to compete in their affirmed gender by contacting the FA to get clearance with a confidential conversation and details of evidence the FA would require. But when it comes specifically to trans players wishing to play in their affirmed sex, they have stated that they will consider applications for clearance on a case-by-case basis. The issue here is that since the specifics of the ‘case-to-case’ clearance procedure are not made public, there is no transparency. Proof consisting of medical information and records, blood testosterone and hormone treatment are deliberated upon in an individual review of trans athletes who have already undergone or are in the process of undergoing medical treatment. The FA’s policy for trans athletes in football document verifies the fact that the FA only considers those trans players who have already undergone hormone therapy, based on surpassing a certain hormone-based requirement as well as the maintenance of certain levels.
Additionally, if the trans athletes are from Australia, their applications must be provided to the FA’s Equality Manager and those who have not undergone hormone therapy would have their applications individually considered. This is because the Australian Football League released a gender diversity policy in August 2018 which used height, weight, vertical jump, etc. besides hormones as indicators of eligibility, which is again inconsistent with other policies in place. Even US Soccer Federation opens membership to all without discrimination but it does not apply this policy to professional leagues or the Federation’s National Teams programs.
Conflicting Policies in USA and Canada:
To better understand the obstacles faced by trans athletes, the author focuses on a hypothetical case from USA and Canada.
Gender self-declaration is the sole requirement to participate in sports in Canada, while U Sports has adopted the testosterone measures given by World Anti-Doping Agency, and the IOC has provided a specific range for a transwoman’s testosterone level. If, for example, we consider the case of a 15-year-old student diagnosed with gender dysphoria – male at birth but identifying as female, living in Manitoba Canada, there would be several sets of inclusion parameters at different levels of sports in different geographic regions simultaneously. According to the Manitoba High School Athletics Association’s policy, she is free to compete on the girls’ teams in a safe and respectful environment, in any sport of her choice. Yet, if she pursues a college degree in Minnesota, USA, she would have to consume testosterone-blocking drugs for a year and sit out competitions in the meantime, while being administered tests to be eligible under the National Collegiate Athletics Association’s policy. Now if she proceeds to compete internationally, she would face problems again. She would have to follow the criteria set out by the IOC in order to participate in the Olympics. This is assuming the fact that she wants to compete in a sport that does not ban transgender persons or has made surgery mandatory. This is also assuming that she wants to compete in a single sport, at a single level, and not two or more sports, at various levels, since she would have to adhere to different regulations, ranging from producing different documents, maintaining her testosterone levels, having meetings with panels as well as continuous medical examinations by experts.
Discrimination in India:
Sex testing was introduced with a good conscience so as to particularly make sure that men do not masquerade as women to gain an advantage over athletes in sports. However, these tests have turned discriminatory, and unequal as well as they lack privacy as they are mainly conducted on females.
Santhi Soundarajan was stripped of her 2006 Asian Games silver medal after failing a sex verification test. The Indian Olympic Association proceeded to inform her that she was prohibited from competing any further, without even notifying her of the test she had failed. She was merely declared ineligible since she did not possess a woman’s sexual characteristics. Such tests are conducted without even informing the athletes. Dutee Chand was taken to a hospital to ascertain her gender without any information. Moreover, she got to know of the same through media.
These conditions violate the rights of the athletes. When they are subjected to such tests, particularly in public, they feel isolated and vulnerable, even depressed and suicidal, as was Santhi Soundarajan. The Right to Equality under Article 14 and the Right to Privacy under Article 21 of the Constitution of India is violated each time a doubt of gender arises for these athletes and they are forcefully subjected to these tests which are performed unknowingly at any point of time.
This is an even graver issue because the tests and qualifications required are different at different national and international levels. This means that an athlete may fail the sex verification test they are subjected to in one country, but may pass one in another country. A real-life example would be Ewa Klobukowska, an Olympian, who passed the mandatory sex test in Budapest but failed the one in Mexico.
The Constitution of India provides all sorts of rights such as education and health benefits to transgender persons, even prohibition against discrimination based on sex as a fundamental right under Article 15, yet the third gender continues to be ostracized. The focus of sex verification tests on trans females but not on trans males violates Articles 14 & 15, and the public scrutiny and discussion of the same violates the rights guaranteed by Article 21 to the Indian athletes.
This shows that though policy development for transsexual persons is seemingly taking a step in the right direction, i.e. creating a consistent policy for trans athletes at National and International levels – the need of the hour. The presence of multiple overlapping yet inconsistent policies is leading to chaos. Ensuring fair play and equality of opportunities, without excluding anyone and harming the spirit of sport is an exigent task. Although there is a long way to go towards the acceptance and inclusion of transgender persons worldwide, the correction of these inconsistent policies would be the first step. Setting up a formal international committee that could create consistent laws and policies for transgender persons in the sporting community, and oversee the regulation of the same would count as making a huge stride in the correct direction. The creation of multiple incongruent policies causes more confusion and perplexity, than inclusivity and fair play. The aim of said committee would be to make sure the Rights of the athletes are not violated and all of them are treated equally, with no discrimination, and their privacy is maintained. It would create a healthy environment of inclusivity and fair play, rather than the violative and discriminatory one at present.
 Sarah Teetzel, Reflecting on Modern Sport in Ancient Olympia: Proceedings of the 2016 Meeting of the International Association for the Philosophy of Sport at the International Olympic Academy 161–170 (Parnassos Press, 2017).