Federations' New Attempt to Define Womanhood: Transgender Sport Bans Come for Elite Sport

In June 2023 I was featured in "The Geopolitical Economy of Sport
Power, Politics, Money, and the State," a wonderful book about "the intersection of power, politics, money, and state interests that both exploit and shape elite sport around the world." My chapter focused on the political evolution of international sports federations as it came to policing gender and the rise of awareness towards regulations on transgender athletes. I am finally able to present my chapter online on my personal website, but I also feel it is very apt for this moment.

A revolution is coming in the current sports landscape spearheaded by the International Swimming Federation (FINA). According to a majority of countries that make up the international federation, sport will no longer be constrained by the current system of classification of dividing sport into “male” and “female” categories. Instead, in international FINA events the federation will offer an “open” category for transgender and intersex athletes that do not meet their new, strict policy to compete in the “men’s” and “women’s” categories. Thus, the federation has determined it is allowed to legally define which classes of athletes, based on the puberty that have gone through at a young age, and those with gender-diverse identities or intersex characteristics should be affording their own category to preserve the fairness of competition.

What exactly is the dividing line for transgender and intersex athletes from their cisgender counterparts? Puberty. FINA defines specific stages in a pre-adolescent’s development known as the “Tanner Stages” as to when athletes’ gender is solidified for the purpose of competition. The federation noted that competition is different from the legal frameworks countries around the world set for defining gender – likely at behest of its human rights group that helped draft the policy – and that given the federation’s mandate of sanctioning international competitions it was within its legal rights to do so. Yet, the policies for transmasculine and transfeminine athletes vary wildly. Transmasculine athletes are allowed to compete in the “men’s” category even if they have begun hormone replacement therapy with testosterone at any time, solely if they are after to be granted a Therapeutic Use Exemption (TUE) for the banned substance. Should transfeminine or 46XY DSD intersex athletes want to be granted license to compete in the “women’s” category, they need to prove to an independent expert that they began suppressing “male puberty” before Tanner Stage 2 – or before the age of 12 – and are able to suppress their testosterone limits to below 2.5 nmol/L continuously from that point. Anyone unable to satisfy these requirements will be allowed to compete in the “open” category should they decide not to compete in the category that matches which puberty they underwent, according to the federation.

Details about what this new “open” category should encompass and how it will work in international competition at FINA-sanctioned events were not forthcoming at the time of the vote. FINA (2022) in its announcement of the policy said that it would allow a working group six months to iron out these details and set up the category. 

However, despite the lack of framework for its new category, FINA (2022) in the explicit policy released, did offer a robust method of enforcement for athletes that seek to participate under its current “men’s” and “women’s” categories. Transgender or intersex athletes seeking to compete in categories that match their gender identity are required by FINA to be signed off by an independent expert that determines if their medical history meets the requirements for FINA’s “men’s” or “women’s” eligibility. Yet the federation says it “may monitor an athlete's ongoing compliance with the Eligibility Conditions by any appropriate means,” including random testing of their testosterone levels for the purpose of eligibility. Athletes will also be required to submit chromosomal tests to FINA before beginning the eligibility assessment.

FINA’s gender inclusion policy is the first by an international federation to be released after the IOC (2021) changed course on its gender inclusion framework for the first time in two decades. As Olympic sports’ umbrella body has moved towards a framework that de-emphasizes medicalization for gender diverse bodies, FINA has chosen a different tract: a narrow definition of an athlete’s sex that is largely immutable without strict, robust medical intervention for those who are not cisgender. Months before the IOC released its guideline, World Rugby (2021) had announced that it had barred transgender women from compete in events sanctioned by the federation, citing injury risk and other factors. Transgender men are allowed to compete without restriction. At the national level, federations have a bit more leeway, with countries like the United States’ USA Rugby (2020) allowing transgender women to compete in nationally sanctioned events if they comply with the old IOC transgender inclusion framework. Other countries have similarly followed suit like Rugby Canada (2020), although the International Rugby League, the largest form of rugby not governed by the international federation, barred transgender women from competing in elite level, (Reuters 2022), showing the influence international federations have on the sports they oversee despite only sanctioning elite competition. 

How the IOC became at odds with how international federations began to define the categories is at the heart of the current political tension around the world regarding the status of rights enumerated to transgender people by national governments. For its first decades, the IOC resisted the call to allow women to participate en masse at the Olympics, before a rival organization the International Women’s Sports Federation (FSFI) organized its own event in the 1920s solely for women’s athletes, (Ripa. 2020). Despite the presence of a handful of women athletes at the 1900 Games in Paris, it would not be until the 1928 Olympics in Amsterdam that a women’s competition in athletics was permitted to be organized. It would take nearly 100 years until the Paris 2024 Olympics when the Olympics would achieve gender parity according to the IOC’s (2021) own metrics.

With the increased participation of women in elite sport and the increased attention on the Olympic Games came the beginnings of policing who deserved to be on the playing field in terms of competition. From the 1930s, (Heggie, 2010), until before the Sydney 2000 Olympics, (Brooks, 2000), the IOC required female athletes to submit themselves to gender verification tests to prove they deserved to compete in women’s categories. At first, like that of Sprinter Stephens at the 1936 Olympics documented by TIME magazine, many of the charges of athletes competing under the wrong sex were charged by the media and fellow athletes. In this, the lines between male and female athletes were more blurred, with coaches noting in another TIME article from the Berlin Games that it was not uncommon for female athletes to undergo sex changes and begin living life as men. Standardized sex testing did not become the norm in the Olympics until the 1960s, (Heggie, 2010), as the Cold War heated up with the rise of athletes from the U.S.S.R and the G.D.R. 

At the 1968 Winter and Summer Olympics, the IOC began using what was known as the Barr Body Test (Ritchie, Reynard & Lewis, 2008), to determine if an athlete had XX or XY chromosomes. The test searches for a body in the cell’s nucleus found when there is an inactive X chromosome - thus theoretically determining the presence of XX chromosomes in the body. However, such tests easily pick up women with “complete androgen insensitivity syndrome,” meaning the presence of XY chromosomes despite external sex organs of women, and determining that men with Kleinfelter’s Syndrome – possessing XXY chromosomes – can compete as women having possessed the inactive X chromosome, (Ritchie, Reynard & Lewis, 2008). Following the outcry of Spanish sprinter Maria Martinez-Patino, the ineffective Barr Body Test was phased out by the IOC in the 1990s for another test, which “which identifies a specific region of code usually found on the Y chromosome and known as the ‘sex determining region Y’” (Heggie, 2010). By 2000 this test and all sex testing had gone by the wayside amid continual athlete outcry. 

After abolishing sex testing, the IOC began broadening its inclusion by offering a formalized pathway for transgender and gender diverse athletes to compete in the Olympics. In 2003 its “Stockholm Consensus” (IOC 2004) created a pathway for athletes who have medically undergone gender confirmation surgery to compete in the Olympics. Those guidelines would be challenged on human rights grounds from cyclist Kristen Worley from Canada (Brown, 2015), leading to a new consensus statement in 2015 from the IOC that pushed for medicalizing athletes in an effort to broaden inclusion in sports. This policy would stay in force for six years, as federations began once again working to claw back control of defining who is allowed to compete in its categories, before the advent of the IOC’s 2021 “framework”. This new policy was designed to cede control back to the federations but create an overarching standard taking into account human rights concerns. Ultimately, the framework says that it was designed to respect the current elite sport landscape that is organized into “men’s” and “women’s” categories and is “aimed at ensuring that competition in each of these categories is fair and safe, and that athletes are not excluded solely on the basis of their transgender identity or sex variations.” In the nearly 20 years of having a transgender inclusion policy, only one transgender athlete – a transgender woman named Laurel Hubbard – has qualified for the Olympic Games.

The IOC’s 2021 framework can be interpreted as both a reaction to the human rights concerns of medicalizing athletes to force them to conform into certain athletic categories, and the ongoing fight the World Athletes had been fighting over the eligibility of certain female athletes in its middle-distance events. World Athletics has had a long history of sex testing, being the first federation to call for sex tests in 1950 (Dillema, 2008), and being the first federation to ban such testing in 1992 (Simpson, Ljungqvist, de la Chapelle, et al, 1993), seven years before the IOC followed suit. Yet, in 2009 when an 18-year-old South African named Caster Semenya stormed to a world championship in Berlin at the 800m distance, World Athletics said a gender-verification test was necessary because she had only begun winning races at the elite level “in the last month” according to reports at the time (Clarey, 2009). The tests were determined to be necessary in what was deemed an unprecedented situation, with even her fellow finalist Elisa Cusma of Italy telling The New York Times “For me, she’s not a woman. She’s a man.”

Two years later, World Athletics introduced a testosterone limit on female athletes in certain distances, with officials arguing that naturally occurring high levels of testosterone – outside of conditions such as polycystic ovary syndrome – are the main drivers of performance in track and field (Marchant, 2011). Instead of using internal or external genitalia as a determining factor of who is eligible to compete in “women’s” categories in sport, World Athletics took it a step further to say, that in order to keep the two classifications intact for sport, limits must be placed on some athletes to give all others a fair shot. Even with the new rules in place, Semenya competed in the 2012 Summer Olympics winning a silver medal – which was upgraded to gold as the winner was found to be part of the systemic Russian state-sponsored doping scheme. Two years later Indian runner Dutee Chand suddenly found herself withdrawn from the 2014 Commonwealth Games due to high natural levels of testosterone, to which she challenged World Athletics’ rules at the Court of Arbitration for Sport (Mancur, 2014). 

In 2015 CAS ruled that World Athletics had arbitrarily set its limits for natural testosterone and had two years to show evidence for its 2011 policy. This interregnum meant that Semenya was cleared to compete without restriction in the 2016 Olympics, where she won a gold medal, her second Olympic gold. The next year she went on to win another World Championships in the 800m in London. Eventually, the World Athletics (2018) passed a policy requiring athletes seeking to compete in the women’s category for middle distance races – 400m, 800m, and 1500m – must show a natural level of testosterone below 5nmol/L continuously in order to race.  Media response focused on the policy as a reaction to Semenya’s dominance in the 800m, but she was far from the only athlete caught in the policy’s crossfire. Semenya was forced to stop running her signature race and was unable to qualify for the Tokyo 2020 Olympics in the 200m, but two Namibian runners Christine Mboma and Beatrice Masilingi were barred from competing in the women’s 400m due to the policy. After the Games, Masilingi told Burke (2021) the experience was “hard to understand” and described the emotional toll of having to change her entire training routine weeks before the Olympics for a different event. 

Disproportionately athletes from the Global South have been affected by the World Athletics bans according to Katrina Karkazis and Rebecca Young-Jordan, who argue in a 2018 paper, World Athletics has recognized this, and has its own views about why this has happened. “According to Bermon, women from Africa and Asia are ‘arriving’ at the highest level because of unfair advantage owing to not having been ‘treated.’ The repetition of the word ‘bias’ and the explicit reference to cheating indicates that their very presence in competition is unfair (Karkazis and Young-Jordan, 2018).” World Athletics’ use of natural testosterone when determining eligibility, is not the only federation policy that could be said to be prioritizing body standards of the Global North in order to define athletes. In FINA’s transgender policy, it specifically cites the Tanner Scale as the method for determining when an athlete reaches a part of male puberty that necessitates them to compete in the “open” category or “male” category despite legally being a transgender woman. The Tanner Scale was developed from one longitudinal study of English children from the 1940s to 1970s, and has since become the global standard for puberty milestones. However, the study did not examine how many confounding variables such as the psychological state of children led to their development, as well as their overall health and nutrition (Roberts, 2016). Applying such a scale to the growth and development of gender diverse and intersex athletes for their hypothetical future athletic competition could have stark implications for athletes all over the world.

The IOC does not have the power to compel federations to make certain decisions under its new transgender framework, however an Associated Press article (2022) did note that it encouraged bodies to move away from using testosterone as a marker for athletic performance. Yet, FINA, World Athletics and World Rugby have forged ahead with these inclusion policies. This comes at the backdrop while countries like the United States debate whether or not young transgender girls and boys should have access to sports teams affiliated with schools based on their gender identity or what sex a doctor assigns them at birth (Kliegman, 2022). With no explicit guidance for federations like its 2015 consensus, each individual sport worldwide will now have to consult its athlete and scientific working groups to determine which political definitions of people will be allowed to compete in the “men’s” and “women’s” categories. Those now with “open” categories still are yet to release their plans for how and where these categories will be administered. 

Therein lies the key to the inclusion behind these plans. Sport’s history with policing sex has ebbed and flowed throughout the history of the Modern Olympics. Currently, through the guise of athlete health, safety and opportunity, federations are choosing to double down on certain categories of segregation, inherently protecting its preferred class of athlete. Instead of opening pathways for all elite athletes by looking at whether its current classification systems are the best way to organize itself, sport has chosen its priorities over who gets priority and investment. Both World Athletics and World Ruby cited injuries and damage to potential earnings from broader classes of athletes being able to compete, protecting cisgender women athletes. Likewise for Aquatics, a supposed advantage over cisgender women athletes is being remedied by shifting gender-diverse athletes to a new category. Once again, elite sport continues to define who gets the benefit of inclusion and who gets to compete.

Citations:

Associated Press (2022) FINA effectively bans transgender athletes from competing in women’s swimming events Available at: https://www.usatoday.com/story/sports/olympics/2022/06/19/fina-adopts-new-policy-transgender-athletes-swimming-events/7677611001/

Brooks, J. R. (2000) Gender Testing at Olympics Abolished at Last Available at: https://www.theglobeandmail.com/sports/gender-testing-at-olympics-abolished-at-last/article25459571/

Brown, A. (2015) Worley’s case to proceed in Human Rights Tribunal Available at: https://www.sportsintegrityinitiative.com/worleys-case-to-proceed-in-human-rights-tribunal/

Burke, P. (2021) Tokyo 2020 silver medalist Mboma admits 400m Olympic ban was “a very bad experience” Available at: https://www.insidethegames.biz/articles/1113578/mboma-masilingi-tokyo-2020-400m-ban

Clarey, C. (2009) Gender Test After a Gold Medal Finish Available at: https://www.nytimes.com/2009/08/20/sports/20runner.html

Court of Arbitration for Sport (2015) Dutee Chand v. Athletics Federation of India (AF) & The International Association of Athletics Federations (IAAF) Available at: https://web.archive.org/web/20170704221029/http://www.tas-cas.org/fileadmin/user_upload/award_internet.pdf (Accessed Sept. 6, 2022)

Dillema, F. (2008) Foekje Dillema Available at: https://web.archive.org/web/20160422082250/http://www.foekjedillema.nl/ (Accessed Sept. 6, 2022)

FINA (2022) FINA Announces New Policy on Gender Inclusion Available at: https://www.fina.org/news/2649715/press-release-fina-announces-new-policy-on-gender-inclusion

FINA (2022) Gender Inclusion Policy Available at: https://resources.fina.org/fina/document/2022/06/19/525de003-51f4-47d3-8d5a-716dac5f77c7/FINA-INCLUSION-POLICY-AND-APPENDICES-FINAL-.pdf

Heggie, V. (2010) ‘Testing sex and gender in sports; reinventing, reimagining and reconstructing histories’, Endeavor, 34(4), pp. 157-163 Available at: https://www.sciencedirect.com/science/article/pii/S0160932710000670

IOC (2004) IOC approves consensus with regard to athletes who have changed sex Available At: https://olympics.com/ioc/news/ioc-approves-consensus-with-regard-to-athletes-who-have-changed-sex#:~:text=The%20consensus%20is%20based%20on,and%20vice%20versa)%20in%20sport.

IOC (2015) IOC Consensus Meeting on Sex Reassignment and Hyperandrogenism November 2015 Available at: https://stillmed.olympic.org/Documents/Commissions_PDFfiles/Medical_commission/2015-11_ioc_consensus_meeting_on_sex_reassignment_and_hyperandrogenism-en.pdf

IOC (2021) Gender Equality Through Time: At the Olympic Games Available at: https://olympics.com/ioc/gender-equality/gender-equality-through-time/at-the-olympic-games

IOC (2021) IOC Releases Framework on Fairness, Inclusion and Non-Discrimination on the Basis of Gender Identity and Sex Variations Available at: https://olympics.com/ioc/news/ioc-releases-framework-on-fairness-inclusion-and-non-discrimination-on-the-basis-of-gender-identity-and-sex-variations

Karkazis, K., Jordan-Young, R. (2018). The Powers of Testosterone: Obscuring Race and Regional Bias in the Regulation of Women Athletes. Feminist Formations Available at: https://www.researchgate.net/publication/324756732_The_Powers_of_Testosterone_Obscuring_Race_and_Regional_Bias_in_the_Regulation_of_Women_Athletes?showFulltext=1&linkId=5ae097f2a6fdcc91399dbb60

Kliegman, J. (2022) Understanding the Different Rules and Policies for Transgender Athletes Available at: https://www.si.com/more-sports/2022/07/06/transgender-athletes-bans-policies-ioc-ncaa

Mancur, J. (2014) Fighting for the Body She Was Born With Available at: https://www.nytimes.com/2014/10/07/sports/sprinter-dutee-chand-fights-ban-over-her-testosterone-level.html

Marchant, J. (2011) Women with high male hormone levels face sport ban. Nature. https://doi.org/10.1038/news.2011.237

TIME (1936) Olympic Games Available at:  https://content.time.com/time/subscriber/article/0,33009,756486-4,00.html

TIME (1936) Olympic Games Available at:  https://content.time.com/time/subscriber/article/0,33009,756542-3,00.html

Reuters (2022) Rugby League Joins Clampdown on Transgender Athletes In Women’s Sports Available at: https://www.nbcnews.com/nbc-out/out-news/rugby-league-joins-clampdown-transgender-athletes-womens-sport-rcna34734

Ritchie, R., Reynard, J., & Lewis, T. (2008).’ Intersex and the Olympic Games.’ Journal of the Royal Society of Medicine, 101(8), 395–399. https://doi.org/10.1258/jrsm.2008.080086

Ripa, Y. (2020), Women and the Olympic Games Available at: https://ehne.fr/en/encyclopedia/themes/gender-and-europe/gendered-body/women-and-olympic-games

Roberts, C. (2016) ‘Tanner’s Puberty Scale: Exploring the historical entanglements of children, scientific photography and sex’, Sexualities, 19(3), pp. 328–346. doi: 10.1177/1363460715593477.

Rugby Canada (2020) Rugby Canada Provides Update on Feedback posed Transgender Rules Available a: https://rugby.ca/en/news/2020/09/rugby-canada-provides-update-on-feedback-to-proposed-transgender-guidelines

Simpson, J.L., Ljungqvist, A., de la Chapelle, A. et al. Gender Verification in Competitive Sports. Sports Medicine 16, 305–315 (1993). https://doi.org/10.2165/00007256-199316050-00002

USA Rugby (2020) Transgender Athletes & Participants Available at: https://www.usa.rugby/transgender-policy/

World Athletics (2018) IAAF introduces new eligibility regulations for female classification Available at: https://worldathletics.org/news/press-release/eligibility-regulations-for-female-classifica

World Rugby (2021) Transgender Guidelines Available at: https://www.world.rugby/the-game/player-welfare/guidelines/transgender