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  • mseltmann

Inclusion v Fairness: contradicting answers to one of sport’s most contontroversial issues

In is not often that the championships of college swimming prompt the president of World Athletics (WA), the world-governing body of track and field, to issue drastic statements. After Lia Thomas became the first transgender women to win a title at the highest US college level, Sebastian Coe warned that the “integrity” and even the “future of women' sport” was at stake. “Gender cannot trump biology“, Coe said, implying that Thomas and other female transgender athletes had an unfair advantage over cisgender women.

With transgender and intersex athletes becoming more visible on the global stage, the topic has become increasingly controversial. The discussion boils down to questions contemplating fairness and inclusion: Is it fair to include a person that underwent male puberty in the female category? Is it unfair to ban someone because their body naturally produces higher amounts of testosterone? International sport federations see themselves confronted with these questions and struggle to find answers.

For decades, the body of female athletes has been subject to testing and public scrutiny (Pieper, 2016; Erikainen, 2020). Only in 1992, World Athletics stopped extensive gender verification, while keeping the right to conduct suspicion-based tests. The International Olympic Committee (IOC) abolished sex testing in 1999. Both IOC and IAAF, however, have been accused of only ending sex testing on paper, while the underlying issues are still present in the organizations.

The IOC addressed the issue of transgender athletes for the first time in 2003 and updated these policies in 2015. Ever since, transgender women needed to keep their testosterone levels under 10 nmol/l for two years to be eligible to compete. In November 2021, the IOC released its long anticipated new guidelines on transgender and intersex athletes. In its “Framework on Fairness, Inclusion and Non-Discrimination Based On Gender Identity And Sex Variations”, the IOC, surprisingly, took an entirely new approach: Testosterone limits were abandoned (in fact, the word testosterone is not mentioned in the six-page document at all), instead the guidelines center around inclusion, human rights and the affected athletes. Human rights activists lauded the IOC (a rather rare occurrence), while federations were skeptical and some scientists even critical of the lack of medical considerations.

The framework, however, is not binding. It is up to the international federations to put the IOC recommendation into action. After the framework was published, World Athletics, whose testosterone regulations have been dealt with in cases in front of CAS, the Swiss Federal Tribunal and soon the European Court of Human Rights, declared its intention not to change its rules, which apply to transgender women as well as female athletes with differences of sex development (DSD), whose bodies naturally produce higher levels of testosterone. This year, WA proposed to its member federations a rule change which would make eligibility criteria for transgender and DSD athletes even stricter.

While the IOC has set a new tone, focusing on inclusion, World Athletics takes a different approach in its eligibility regulations. WA is addressing the importance of inclusion, but does not hide the fact that for the federation, competitive fairness is the more important issue. Taking into account the history of sex testing and scrutiny of the female body in athletics, an argument could be made that the paragraph on inclusion in the WA eligibility criteria is merely lip service.

The IOC framework is divided into ten main categories: inclusion (1), prevention of harm (2), non- discrimination (3), fairness (4), no presumption of advantage (5), evidence-based approach (6), primacy of health and bodily autonomy (7), stakeholder-centered approach (8), right to privacy (9) and periodic reviews (10).

Just like WA in its eligibility criteria, the IOC refers to fairness in the framework and addresses the need for rules preve''ding athletes with disproportionate competitive advantages from competing. This is where WA and IOC are the most aligned. Crucially, though, the IOC is mentioning fairness as one aspect to consider within the more important issue of inclusion, whereas WA is addressing inclusion as a side note to fair competition. The priorities are set differently.

The “prevention of harm” (principle 2), is neglected in the WA regulations. This, however, is an important issue that WA should address. According to the report “They're Chasing Us Away From Sport” by the Human Rights Watch (HRW), the WA eligibility criteria are pushing athletes into unnecessary medical procedures. WA emphasized that that informed consent needs to be given by the athletes, but in reality, some athletes feel pressured. Thus, principle 7, “primacy of health and bodily autonomy” is ignored by WA.

On paper, WA is in line with some of the IOC framework's principles. However, the stories of athletes interviewed by the HRW paint a different picture. The IOC asks federations not to assume advantages for certain athletes and instead have eligibility rules guided by peer-reviewed science (principles 5 and 6). WA provided such a study, but while peer-reviewed, the study was strongly criticized for its flawed methodology. On the surface, WA is acting in line with the IOC framework here, whether this is actually the case is disputed. This adds another layer of complexity to the topic. As sport scientist Ross Tucker has pointed out: "A good study would be unethical and the ethical studies are just not very good.”

Similarly, WA claims to periodically review its regulations based on new developments. But since neither the exposed flaws in the study by Bermon and Garnier nor the new IOC framework led to reconsideration, it seems like groundbreaking new evidence would be needed for WA to act. WA also claims that the regulations are not there to questions an athlete’s gender, in line with the IOC’s principle of “non-discrimination”. However, the HRW has accused WA of conducting sex tests on athletes not fulfilling stereotypical western standards of femininity. According to researcher Nana Adom-Abogaye, it seems like WA is “targeting African women, based on their supposed masculine features, once they start excelling on the global stage”.

This impression could be counteracted by adhering to IOC principle 8, “stakeholder-centered approach”. If affected athletes were included in the policy-making, WA could shield itself ­- to some degree - from criticism and, more importantly, improve its regulations by limiting the harmful physical and mental consequences for DSD athletes. WA should not be criticized for focusing on fairness, a legitimate aim for a sport organization, but for not addressing the problematic outcomes the regulations are leading to.

WA should be particularly cautious about informing athletes and guiding them through procedures. Even if physicians and WA officials did not coerce athletes into medical treatment, which the HRW report suggests happened in some cases, athletes are still presented an impossible choice. “The choice is to subjugate oneself to power: alter your body, accept being labelled, or leave“, Karkazis and Carpenter write (p. 586). This dilemma is difficult for WA to address and can only be solved in consultation with affected athletes, human rights activist and social scientist. In the past, WA has focused on the biological side of the issue, but has failed to see humanitarian and ethical concerns. To improve that, WA could take a closer look at the IOC framework, as it sheds light on aspects WA fails to consider.

So far, the IOC has made no public effort to urge international federations to follow the new guidelines. This year, several other federations have implemented new regulations on transgender athletes, most of which include a testosterone limit and are rather excluding. At the moment, World Athletics approach seems more popular in the world of international sport governance than the IOC's recommendations.

Lukas Brems

Graduate Student, International Sport Development and Politics

German Sport University Cologne

Blog posts represent the views of the author and not that of Sport&EU or its members

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