The governing body for aquatic sports, FINA, voted on Sunday (19th June) in Budapest/Hungary to bar transwomen athletes who have gone through any part of male puberty from international female competition. Rugby league followed suit two days later, and Lord Coe, president of World Athletics hinted that his sport might also go that way. Is this exclusion from the female category unfair to transwomen athletes?
Most actors in sport (see the World Rugby Guidelines) assume that three values are in play when it comes to deciding about transwomen’s participation in the female category: fairness, safety and inclusion. It turns out that it is difficult to create a balance between these three values. The five UK Sports Councils concluded in September 2021: ‘the inclusion of transgender people into female sport cannot be balanced regarding transgender inclusion, fairness and safety in gender-affected sport where there is meaningful competition. This is due to retained differences in strength, stamina and physique between the average woman compared with the average transgender woman or non-binary person assigned male at birth, with or without testosterone suppression.’
The IOC approach, adopted at the 2015 Consensus Meeting, has been to balance fairness, safety, and inclusion through a policy of mitigating for physiological advantage (focusing on testosterone reduction). World Rugby have taken a different path, which solves the balancing problem: ‘lexical priority’. This simply means that the three values can be ranked – some are more important than others. In collision sports like Rugby (but also in combat sports) safety comes first, then fairness, and lastly inclusion. In other sports, where there is little danger of injury from your opponent (e.g. Tennis – although some frustrated players throw their rackets), safety is not the central concern, but fairness still takes priority over inclusion.
Both the IOC and World Rugby misconstrue the relationship between the three values, because inclusion is not on a par with fairness or safety. It turns out that inclusion is nothing more than a function of eligibility. There are actually only two values in play: fairness and safety. Unsurprisingly, the IOC’s policy outcome is flawed, whereas World Rugby got it right: transwomen do not belong in the female category.
We categorise and sub-categorise athletes in order to achieve maximal inclusion. We set eligibility criteria so that as many athletes as possible can take part in meaningful competition.
If we look at the respective legislation in the UK, we find that it mentions both fairness and safety but not inclusion. The UK Gender Recognition Act (GRA) 2004 (Section 19 Sport) states that a trans athlete can be excluded from a gender-affected sport if this measure ‘is necessary to secure – (a) fair competition, or (b) the safety of competitors’. The relevant section (195) in the UK 2010 Equality Act (EA) repeals/supersedes the section on sport (19) in the GRA – but retains the substance: fair competition and the safety of competitors can warrant the exclusion of ‘transsexual persons’. The same goes for the Australian 1984 Sex Discrimination Act (Part II, Div. 4: 42 – Sport): ‘(1) Nothing in Division 1 or 2 renders it unlawful to discriminate on the ground of sex, gender identity or intersex status by excluding persons from participation in any competitive sporting activity in which the strength, stamina or physique of competitors is relevant.’ Again, inclusion doesn’t feature. Legislators in both countries understood that inclusion is not a free-standing value, unlike fairness and safety. That is why the statutes don’t mention inclusion.
Activists who demand blanket inclusion of transwomen athletes don’t understand that eligibility (to compete in a particular category in sport) automatically delivers inclusion. We categorise and sub-categorise athletes in order to achieve maximal inclusion (Parry & Martínková 2021). We set eligibility criteria so that as many athletes as possible can take part in meaningful competition. By having several sub-categories in boxing (bantamweight, flyweight, middleweight, etc.) we include as many boxers as possible; this is only constrained by practical considerations (see, for example, the sub-categories in para-sports). Without the sub-categories in boxing the heavyweights would win most of the time, and the sport would become a ‘battle of the heavyweights’.
Similarly, we have male and female categories to achieve maximal inclusion. If we did not categorise by sex, men/boys would win most of the time. ‘Just in the single year 2017, Olympic, World, and U.S. Champion Tori Bowie’s 100 meters lifetime best of 10.78 was beaten 15,000 times by men and boys. (…) The same is true of Olympic, World, and U.S. Champion Allyson Felix’s 400 meters lifetime best of 49.26. Just in the single year 2017, men and boys around the world outperformed her more than 15,000 times.’ (Coleman & Shreve 2018). Having male and female categories means that many more women/girls can take part in sports – and succeed.
The legislators in the UK and Australia understand that sport categorises by sex, not by gender-identity. Sport is about the body. We test female bodies against female bodies and male bodies against male bodies. Note that including athletes with DSDs (disorders of sex development) into this debate doesn’t strengthen the transgender case: the sex of transwomen is not in doubt.
The principle that eligibility governs inclusion also holds outside of sport. If children who play in a sandpit ignore one child, then parents may rightly say: ‘Why don’t you let Charlie play too.’ But a passing teenager does not need to be included in their play, because that teenager lacks eligibility (here: age). Similarly, AA meetings are not open to people who never had an alcohol problem. Inclusion presupposes eligibility.
Sports governing bodies and the IOC mistakenly believed that the label ‘transwoman’ delivers eligibility, and they tried to accommodate these male-bodied athletes (through various unsuccessful mitigation policies) in the female category. But the legislators in the UK and Australia understood that granting legal recognition to men as ‘women’ doesn’t change their sex nor their physiological advantage – regardless of whether they take cross-sex hormones or not.
The recent change in policy direction from World Rugby and FINA doesn’t exclude transwomen from sport, as is sometimes claimed, it only excludes them from competing in the female category. They may compete in the male category or in an open category, as planned by FINA. The open category, due to its eligibility conditions, provides maximal inclusion. Men, transwomen and women can all compete in that category if they wish; at the same time the female category stays a protected category, allowing women and girls fair competition, as well as including all who are eligible.
Once you realise that inclusion depends on eligibility, the tension between fairness, safety and inclusion disappears. We are left with two values only. We categorise guided by fairness and safety, and this is how we achieve maximal inclusion. Inclusion has no guiding role, because it springs from eligibility.
Copyright © Miroslav Imbrišević 2022