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Further implications
The issue of whether or under what circumstances transgender woman athletes should be able to compete against cisgender women athletes is a complex one, drawing together vexed questions of conflicting rights and definitions of gender.
On June 16, 2021, The Conversation published a discussion by Claire Breen, Professor of Law at the University of Waikato, New Zealand. Professor Breen outlines the various international laws and declarations which seem to bear on sporting participation and the rights of transgender athletes. She argues that despite the broad support offered for transgender athletes under protections from discrimination when applied in detail to specific sports certainty disappears.
Professor Breen concludes that the current confusion around the level of advantage enjoyed by some transgender athletes in some sports needs to be resolved by further carefully targeted research. She argues that the issue cannot be satisfactorily addressed until this research has been undertaken.
The full text of the article can be accessed at
, but a slightly abridged copy is reprinted below. |
The debate over transgender athletes' rights is testing the current limits of science and the law Sports participation as a human right The wider relationship between sports and human rights is complex and often contradictory. No explicit right to participate in sport exists in international law. However, a number of core human rights are relevant: The Universal Declaration on Human Rights says everyone has the rights to freedom of association, health, rest and leisure, and to participate in cultural life. The International Covenant on Civil and Political Rights says everyone has the right to freedom of association; its sister treaty, the International Covenant on Economic, Social and Cultural Rights recognises the rights to health and cultural life. The UN Convention on the Rights of the Child iidentifies the right to rest, leisure and participation in cultural life, which include participation in sport, as does the Convention on the Rights of Persons with Disabilities. UNESCO's International Charter of Physical Education and Sport identifies sport as a fundamental right, as does the International Olympic Committee. Recognising transgender athletes As with all human rights, the right to participate in sport is underpinned by the right to be free from discrimination on grounds of sex, gender, or other status. That includes gender identity and the right of trans people to be free from discrimination. This broad principle informs much of the thinking on the issue. The UN Special Rapporteur on the Right to Health, for example, has said the participation of girls and women in sport should not result in the arbitrary exclusion of transgender people. The rapporteur has also asked for a consensus by all international sporting bodies and national governments, in consultation with transgender organisations, with subsequent policies ideally reflecting international human rights norms. The UN's Independent Expert on "protection against violence and discrimination based on sexual orientation and gender identity" has highlighted the negative impact of exclusionary practices in sport, and noted the value of inclusive programs. The UN Convention on the Elimination of All Forms of Discrimination Against Women calls for equality between men and women in sports and includes gender identity among the forms of potential discrimination. Difficulty in putting conflicting rights into effect Beyond these areas of broad agreement, however, the issue quickly becomes more complex. In Aotearoa (New Zealand), the Human Rights Act 1993 prohibits discrimination on the grounds of "sex" and "sexual orientation". These prohibitions have been interpreted to encompass the legal right of trans people to be free from discrimination. However, the act also says it is not discriminatory to exclude people of one sex from participating in any competitive sporting activity in which the strength, stamina or physique of competitors is relevant. Unfortunately, this is where the arguments run into the limited help offered by science. There is still strong disagreement about whether transgender athletes have a competitive advantage or not. The limits of science and the law Research focusing on testosterone levels to justify the exclusion (or inclusion) of trans athletes has been criticised as an inappropriate oversimplification. Whether testosterone even provides a competitive advantage is disputed, and commentators point to other factors that may be at play. One study of the available literature concluded that a consensus could not be reached due a lack of data. That finding was itself challenged, but both sides agreed more research was required. In the meantime, we need to recognise the limits of science and the law when it comes to setting demonstrably balanced guidelines for trans athletes' participation in sport. Progress will only come through listening to both sides in the short term, but broad support for the required research is also needed in the longer term. Ultimately it is in everyone's interests that this hugely complex issue is resolved properly. Given it goes to the heart of human identity, the potential benefits are not confined to the sporting world. |