The Open University, UK
On the 31st October a group of UN Special Procedures mandate holders published a policy position urging states and other stakeholders ‘to uphold the ideal of sport that is inclusive of LGBT and intersex persons’. Special Procedures experts are part of the UN Human Rights Council. They ‘work on a voluntary basis; they are not UN staff and do not receive a salary for their work. They are independent from any government or organization and serve in their individual capacity.’ In the following I will focus on what the experts say about trans women athletes.
The policy position is about ‘the protection of human rights in sport without discrimination based on sexual orientation, gender identity, and sex characteristics’. And here, in the title of the policy paper, is the first mistake: in sport we do discriminate (in the sense of ‘recognising a relevant difference’). Why? Because the categories in sport are sex-based – not gender identity-based. The female category is a protected category. If we allowed male-bodied persons (including trans women) into the female category, then girls/women would lose out to (mediocre) boys/men, because of the – on average – large physiological advantage of males. ‘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 and Shreve 2018).
The authors of the UN policy position fail to distinguish between lawful and unlawful discrimination. In Australian (and UK) legislation it is lawful ‘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.’ Where there are relevant differences between candidates it may be permissible (or lawful) to treat them differently – this is something Aristotle recognised a long time ago.
We need to highlight two main characteristics of human rights: they are important and, when violated, they are urgent. Many people live without sport, some actually hate it. So, sport, by itself, is not important; we can live happy lives without it.
What would be objectionable is arbitrary discrimination: i.e., treating one person/group differently on a whim, because of malice, or because of an irrelevant difference, such as the colour of one’s hair). Only if you take the position that there is no (relevant) difference between women and trans women could you claim that exclusion from the female category is discriminatory (i.e., wrongful or even unlawful). The UN experts do take this position, hence the use of the phrase ‘women, and girls in all of their diversity’. The suggestion is that trans women are just one of the many different manifestations of ‘women’: young, old, married, French, witty, etc. But this view is grounded in a particular ideology (trans women are women), rather than in material reality.
There are two scenarios we need to consider with regard to trans women in sport.
- Is male advantage neutralised by taking cross-sex hormones? According to research from the Rugby Football Union(2022): ‘[t]he reversal of performance advantages is thus only one-fifth of the initial advantage, which leaves a significant remaining advantage, particularly for attributes of strength and mass.’ And we also need to consider the safety issue in collision sports and martial arts (see Pike).
- Not all trans women opt for cross-sex hormones, surgery or any other bodily modification measures. This is in line with the latest guidance from the IOC (2021, 5.2): ‘athletes should not be deemed to have an unfair or disproportionate competitive advantage due to their sex variations, physical appearance and/or transgender status.’ This means that the IOC has abandoned any attempts at mitigating for physiological advantages by trans athletes. Consequently, women/girls will face an increasing number of trans competitors who have only changed their gender identity, but whose bodies are the same as before transitioning. It is odd that the IOC wishes to maintain the sex categories at all. If we cannot assume that male (-bodied) athletes have an advantage over females, then we might as well abandon categorisation by sex.
Rights and Human Rights
The UN experts write (section 3): ‘The practice of sport without discrimination of any kind is therefore conceived as a human right’. This is badly phrased, because it conflates two issues. Sport is not a human right (regardless of what the IOC Charter claims), but unlawful discrimination may sometimes be a human rights violation (e.g., when the members of an ethnic minority are persecuted). Applying sex-based eligibility criteria, as we do in sport, is neither a rights violation – nor a human rights violation. However, the UN experts frame this as (section 8) ‘arbitrary restrictions of trans and intersex women and girls from women’s sports.’ There is nothing arbitrary about applying eligibility criteria consistently.
We need to highlight two main characteristics of human rights: they are important and, when violated, they are urgent. Many people live without sport, some actually hate it. So, sport, by itself, is not important; we can live happy lives without it. If we were to discriminate unlawfully, by denying a valid eligibility claim (by excluding somebody arbitrarily from competition), then this would be painful for that person. But it would merely be the denial of an ‘ordinary’ right, just like the right to join a dramatic society. But it would not have the urgency of being arbitrarily imprisoned or tortured – it is uncontroversial that we do have a human right not to be arbitrarily imprisoned and/or tortured. Claims that participating in sport is a human right are mere hyperbole.
The authors rely on the UDHR (Article 27), the International Covenant on Economic, Social and Cultural Rights (Article 15) and various other declarations, including the IOC Charter, to claim that (section 3): ‘sports and games are at the core of cultural life and cultural rights. Within a human rights framework, pursuant to which all persons have the right to live with dignity, equality, and freedom, it is a laudable objective of humanity that the benefits of sport be made available to all, without discrimination.’
I have already explained that we do (lawfully) discriminate in sport (a Heavyweight is excluded from the Welterweight division), as well as in other areas of life (foreigners cannot vote in national elections). Secondly, trans women are not excluded from sport, only from the female category. Therefore, they are free to take part in sporting activities and the cultural life of sport. It is different in theocratic regimes that systematically exclude women (or other groups) from all public life (not just from sport). Here, we can say that their lives are diminished and their human right to fully participate in cultural life is severely curtailed. Some big sporting events have been awarded to such regimes, and one hopes that the UN experts will raise the issue of how women, trans people, and gay people (as well as political dissidents) are treated there. In section 13 they address mega-sporting events, but they keep it general, without addressing recent attempts at ‘sportswashing’ (e.g., Qatar or Saudi Arabia).
In section 4 they state: ‘Sport is a celebration of the abilities of the human body: each human body is unique, and differences exist because of factors as varied as nutrition, proximity to coaches and training, access to adequate sports facilities, belonging to families or communities with resources and commitment to sport excellence as well as genetic differences.’ The first clause is correct: we test bodies. But it is interesting how the major differences between bodies, as recognised in sport, are not explained through belonging either to the male or female sex. Instead, the UN experts focus on socio-economic factors, and the last item in their list is ‘genetic differences’. This is a familiar move. If we side-line sex-based differences, then trans inclusion in the female category is easier to justify.
The authors write (section 5): ‘Categories for different sports are always under scrutiny, as evidence leads to new understandings of what factors have significant impact in the understanding of fairness.’ Here they prepare the ground for considering factors other than being male/female when it comes to categorisation. And by ‘fairness’ they don’t mean ‘fairness in competition’, they mean fairness in categorisation (i.e., having your eligibility claim accepted).
The experts continue: ‘Non-discrimination considerations demand that sports organizations remain committed to the fairness of competition by considering all relevant factors that may impact participation of persons on the basis of categories protected under international human rights law, including sex characteristics, sexual orientation and/or gender identity.’ There is a lot of conceptual confusion in this passage. If the eligibility criteria (who can play?) are fair, then this normally ensures that competitors are fairly matched in competition. Permitting a heavier boxer into a lighter category would, for example, undermine fairness on both counts. The same goes for admitting trans women into the female category. This would be unfair because they carry a category advantage (i.e., being male-bodied) into the female category (see Parry and Martínková). Furthermore, sports categories are not ‘protected under international human rights law’ – this is plain nonsense. What is protected in many domestic legislations are characteristics like: sex, sexual orientation, and gender identity. But this has no impact on the eligibility criteria in sport.
There is wide-spread ignorance about what ‘inclusion’ means. As long as we have categories in sport, we will have exclusion of those who don’t qualify, e.g., a 25-year-old cannot play for the U21 team. Denying an eligibility claim is not unlawful ‘discrimination’, nor a human rights violation.
Traditionally, we categorise by sex. But recently some sports governing bodies had adopted the idea that we should widen the eligibility criteria and categorise by sex – plus gender identity. However, more and more governing bodies are now insisting on purely sex-based categorisation and trans women athletes are given the option to compete in the male and/or Open category (FINA, British Triathlon, UCI, etc.).
The UN experts don’t understand that sport is special (see section 10). In most areas of life, having a gender identity which doesn’t align with your sex is irrelevant: it doesn’t matter whether the bus driver, bank manager, or accountant is trans or not. However, sport is different, because we test male bodies against male bodies and female bodies against female bodies. In athletic competition it matters what kind of body you have. That’s why we categorise by sex (and other factors related to the body: e.g., weight, age, level of disability).
The legal recognition of one’s gender identity (woman) does not translate into eligibility for a particular sex category (female) in sport. This is explicitly recognised in UK and Australian legislation. The law cannot transform your body (this matters in sport); it can only provide you with new documents (this matters in all other areas of life). In other legal systems, where there are no exemptions for sport, people easily get confused and believe that the legal recognition applies to all areas of life, including sport. But when the state recognises someone’s (trans-) gender identity, it creates a legal fiction (fictio legis). The state will treat the individual as if they were of the other sex. In sport it would be a mistake to do so, and to believe that trans women are literally ‘women’, because this would jeopardise fair competition.
In section 11 it becomes even more apparent that the authors have a limited grasp of the law and of sport: ‘The categoric or blanket exclusion of trans and intersex women from sport (including their segregation to trans or intersex-only categories) is a prima facie violation of their human right to live free from discrimination.’ What they mean here is the exclusion from the female category, not from sport as such. The experts argue that such exclusion ‘focuses only on assumed muscular strength, ignores the wider range of other factors that enable some athletes to perform better than others, and appears to rely on stereotypical notions of a woman athlete’s performance and body type.’ [Footnote omitted]. This is a common strategy: attacking what science tells us about the physiological advantages of males and/or adopting the mantle of ‘feminism’ in order to facilitate trans inclusion in women’s sport (see here and here).
The writers urge all stakeholders (section 17b) to ‘cease targeting trans and intersex women under the guise of protecting women’s sports’. This is a distortion of what sports governing bodies are doing. Nobody is ‘targeting’ these groups, and the aim of protecting women’s sport is not a ‘guise’. In reality, these governing bodies are simply applying the – well justified – eligibility criteria for the female category.
There is wide-spread ignorance about what ‘inclusion’ means. As long as we have categories in sport, we will have exclusion of those who don’t qualify, e.g., a 25-year-old cannot play for the U21 team. Denying an eligibility claim is not unlawful ‘discrimination’, nor a human rights violation. Instead, it is to recognise that there are relevant differences between candidates. That is the case when a trans woman makes an eligibility claim for the female category. If an athlete isn’t eligible, then the inclusion question doesn’t arise. This is something that many people fail to grasp.
Copyright © Miroslav Imbrišević 2023