Published and translated by the firm Winter – Dávila & Associés
Paris, 2 July 2024
KEYWORD
Transgender Athletes
This article explains the development of sports in relation to gender-diverse people in recent years. For this purpose, it includes the jurisprudential discussions that have arisen around their participation in different disciplines.
The participation of transgender and intersex athletes is not new, as it can be evidenced since the 1936 Olympic Games, with the participation of Heinrich (Dora) Ratjen, who due to his genetic conditions was raised as a woman, but after medical examinations was declared a man. This can be considered as the first of several cases that would be seen throughout the 20th century and that led to the implementation of different methods to determine the sexuality of athletes.[1] Now, taking into account the current approach to gender issues, in recent years the discussions have been increasing, creating a duality between ensuring both the inclusion of these athletes, as well as striving to maintain competitive equality as a guiding principle of sport.
Therefore, the approach of the courts has been fundamental in determining the participation of transgender athletes, thus, the cases of Dutee Chand, Caster Semenya, Lia Thomas, and the most recent ruling of a Colombian court, the case of Emiliana Castrillón, are illustrated below, in order to show the current status of the policies adopted.
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The case of Dutee Chand[2].
In 2014, the Indian athlete Dutee Chand was called by the Athletics Federation of India to undergo medical examinations, including an abdominal ultrasound. Subsequently, the Athletics Federation of India sent a letter stating that there were doubts concerning the athlete’s gender and that it was necessary to carry out tests for verification. As a result, the athlete was excluded from the World Youth Championships and from the Indian team for the Commonwhealt Games because her “male hormones” were elevated, she had hyperandrogenism.
This decision was made based on the Rules for the Eligibility of Female Athletes with Hyperandrogenism[3] issued in 2011 by the International Association of Athletics Federation (“IAAF”). These rules determined that an athlete would be eligible to compete in the female branch when she demonstrated that her hormones were below the male ranges, or could demonstrate that they did not represent a competitive advantage. Therefore, in order to participate, the athlete was required to undergo medical procedures to lower her hormone levels.
Chand appealed to the Court of Arbitration for Sport (“CAS”), claiming that the rules determined by the IAAF were discriminatory and disproportionate to those athletes who naturally produce more testosterone, and that they lacked scientific support.
Photo provided by the author of the article.
Thus, the CAS affirmed that the regulations issued by the IAAF were in themselves discriminatory, but that, according to the evidence provided, the IAAF had a scientific basis for their issuance, and that it could not prove that there was no basis for affirming that there is no relationship between testosterone levels and sport performance. However, concerning proportionality, CAS concluded that insufficient evidence was provided to demonstrate that the exclusion of female athletes complied with the principles of the Olympic Charter and that the competition of women with hyperandrogenism is unfair and directly caused by elevated testosterone levels.
Consequently, in 2015, CAS partially upheld the appeal made by Chand, and suspended the regulation until the IAAF presented sufficient evidence of the competitive advantage of high testosterone levels in athletes with hyperandrogenism.
Caster Semenya’s battle
As a consequence of the Chand case, in 2018 the IAAF informed CAS that it would withdraw the existing regulation for cases of athletes with hyperandrogenism and issue a new one on the eligibility of athletes for female classification with differences in sexual development (“DSD Rules”). This regulation required athletes with elevated testosterone levels and a “material androgenizing effect” to reduce their testosterone levels to within the normal female range and maintain it for a period of six months in order to compete in restricted events, including those in which Olympic champion Caster Semenya competed. For this reason, the athlete filed an application with the CAS to have the DSD Rules declared invalid.[4] The athlete thus considered that the DSD Rules were invalid.
In doing so, the athlete considered that the measures were discriminatory and unnecessary to ensure fair competition and therefore went against the Olympic Charter, laws and universally recognized human rights. This meant that the CAS was faced with two incompatible systems of rights: on the one hand, those associated with gender identity and freedom from discrimination, and on the other hand, those of female athletes who could be at a biological disadvantage when competing.
Thus, the CAS concluded that the DSD Rules were discriminatory, however, it assures that these measures can be justified as long as they are necessary, reasonable and proportional. Regarding the necessity, it stated that taking into account that there are only two categories, female and male, it is necessary to determine the characteristics of the persons who can compete in each one, this being a biological and not a legal discussion, as it seeks to ensure fair competition. Now, for the specific case of the DSD Rules, it considered that the IAAF demonstrated that female athletes without androgynous sensitivity were at a competitive disadvantage without the regulation.
On reasonableness and proportionality, the CAS found the measures to be adequate, since in order to regulate testosterone levels it is not necessary to perform surgical procedures, but rather the consumption of contraceptives was sufficient. However, it raises doubts in its implementation concerning the ability of athletes to maintain the levels for the time required by the DSD Standards.
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Thus, when Semenya’s petitions were not accepted, the athlete went to the Swiss Federal Court seeking the annulment of the award. However, the high court considered that the application of the procedure had been correct, so that in view of its limited jurisdiction it was not possible for it to modify the decision, and that the decision was not contrary to Swiss law.[5] However, the athlete went to the European Court of Human Rights (ECHR) to appeal the decision.
However, the athlete went to the European Court of Human Rights (“ECtHR”), initiating proceedings against Switzerland. The athlete claimed that the application of the DSD Rules implies in itself an act of discrimination for intersex persons, since, on the one hand, they are discriminated against concerning women who do not have high testosterone levels, and on the other hand, it is a regulation that does not exist for men with testosterone levels above normal ranges. Additionally, the athlete claimed that this constituted a violation of her right to make decisions concerning her private life.
Thus, the ECtHR considered that the athlete was being discriminated against and that her private life was affected, since the CAS decision disregarded the effects of the hormone treatment. It also affirmed that the Swiss Federal Court disregarded the principles and rights contained in the European Convention on Human Rights, and did not provide sufficient safeguards for Semenya, as it limited itself to a formal review of the award. Consequently, the Swiss State was condemned.
Lo anterior parecía ser el final de la discusión sobre la discriminación latente en la aplicación de las Normas DSD, sin embargo, actualmente el caso esta siendo revisado por la Gran Sala del TEDH, y se encuentra pendiente de decisión.
Foto: pixabay.com
The controversial case of Lia Thomas
Lia Thomas is a swimmer who from the moment she made her transition has been involved in the discussion of transgender sport, as for many she is the clearest example of the competitive advantage that these athletes can have. When Lia competed in the men’s division, she was ranked one place below the 400, but since she has been competing in the women’s division, she is in first place.
The situation led to the athlete being excluded from participating in events that for USA Swimming are classified as Elite, and therefore from participating in events organized by World Aquatics and the possibility of setting world records. Reason for which the athlete initiated a proceeding before the CAS on the grounds that the eligibility policies for men and women in the World Aquatics competition categories were discriminatory, as they only allow the participation of transgender athletes who have total androgen insensitivity and, therefore, could not experience male puberty; or who being androgen sensitive had their male puberty suppressed from Tanner stage 2 or before the age of twelve, whichever is later; and have continuously maintained their testosterone levels low.
However, the CAS considered that the provisions under discussion are not applicable to Thomas, because at the time of initiating the procedure she was not part of USA Swimming, not participating in Elite competitions, and therefore not part of World Aquatics, thus lacking legitimacy in her allegations.[6] As a result, Lia was excluded from participating in the Paris Olympic Games.
Emiliana Castrillón, the case of team sports
Emiliana Castrillón’s case is different from those studied, because unlike the other athletes, she competes in volleyball, a team sport in which it is more difficult to measure the competitive advantage she may have against other women.
Emiliana began her transition process at the age of 16, in 2015 she started her hormone replacement treatment. Since that year she has been competing in women’s teams, participating in organized by the Antioquia Volleyball League. In 2018 requirements were implemented for the participation of transgender athletes, which included testosterone tests in which she demonstrated that she had levels equal to or lower than those of a cisgender woman.
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In 2022, a resolution was issued that determined that those born male and those born female belonged to the male branch and those born female belonged to the female branch. Based on this, she was excluded from participating in university tournaments in 2024, so she filed a tutela action to protect the rights of equality, privacy and free development of personality.
The decision considered that the defendant had based its decision not on the biological differences at the time of the competition, demonstrating a competitive advantage, but on criteria assigned to birth, which implies for a transgender person an inherent inequality, ignoring the criteria established by the International Volleyball Federation. Thus ordering the participation of Emiliana until objective criteria that can demonstrate that there is a competitive advantage and that conform to international regulations are not established.
In conclusion, neither the federations nor the courts have been able to reach a point that guarantees the participation of people of different genders, and that guarantees competitive equality. In this sense, we invite you to continue contributing to this debate that is far from being resolved through our social networks.
References
[1] Ingram, Benjamin James MD; Thomas, Connie Lynn MD. Transgender Policy in Sport, A Review of Current Policy and Commentary of the Challenges of Policy Creation. Current Sports Medicine Reports 18(6):p 239-247, June 2019. | DOI: 10.1249/JSR.0000000000000605
[2] CAS 2014/A/3759 Dutee Chand v. Athletics Federation of India (AFI) & The International Association of Athletics Federations (IAAF)
[3] Disponibles en https://www.worldathletics.org/download/download?filename=caf5ddf5-c64b-4384-8947-f057fb44c44a.pdf&urlslug=iaaf%20hyperandrogenism%20regulations%20-%20appendix%204%20-%20in%20force%20as%20from%201st%20may%202011
[4] CAS 2018/O/5794 Mokgadi Caster Semenya v. International Association of Atlhetic Federations
[5] ECHR, CASE OF SEMENYA v. SWITZERLAND, Julio 11 de 2023.
[6] CAS 2023/O/10000 Lia Thomas v. World Aquatics
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