Sports have long been classified into two categories, male and female. Despite the recognition of a third gender by the judiciary and the society, the world of sports has been slow to adapt. The fluidity of gender, too, has largely been overlooked by the sports world. This highlights a major gap in our understanding of gender and sex as a society.
—
Just when sports are beginning to take a front row in our country, a new and unique challenge has arisen in the field. The challenge, to which no immediate solution is in sight, is the participation of transgender and intersex persons in sports.
Gender is a complex construct that goes beyond the binary classification of male and female, and it is important for sports to acknowledge and accommodate this diversity. The current system not only excludes transgender and intersex individuals from sports but also reinforces harmful gender stereotypes that restrict opportunities and perpetuate discrimination.
While taking a human rights approach to the issue, it is important to note that human rights violations in sports are already a reality, both domestically and globally. Therefore, it is crucial to start a discourse on the matter now, to ensure that a framework is established to address these violations and guarantee a level playing field for all athletes regardless of their gender identity.
Major issues arising out of sex-based categorisation
The male and female categorisation in sports is done for reasons of fairness. However, fairness in sports has held different meanings at different points in time. Sports were historically organised in ways that prioritised physical attributes, with a particular emphasis on natural endowments. Until the late 19th century, the competition was largely understood to be a test of natural ability, and women were not permitted to participate in the Olympics until the 1900 Games in Paris, where their participation was limited to a few categories.
Gender is a complex construct that goes beyond the binary classification of male and female, and it is important for sports to acknowledge and accommodate this diversity.
In this context, the concept of fairness was invoked to justify exclusion. Subsequently, as women were granted access to more sporting events, a separate category was created for them, based on recognition of the physical advantages held by male athletes. The female category was thus established as a distinct, protected classification.
It is true that the superior performance of male athletes cannot be solely attributed to their higher testosterone levels and other factors such as superior training, nutrition, and access to resources may also be contributing factors.
However, if it can be demonstrated that training and other such factors can provide a level playing field for both genders, there may not be a need for separate male and female categories in various sporting events at all.
Nonetheless, the mere existence of separate male and female categories is an acknowledgement that there is a difference when it comes to male and female performance in sports.
While this disparity may not solely be attributed to testosterone levels or inherent biological differences, if males and females are equally capable in sports, then sex-based categories in sports should be considered obsolete and both sexes should be allowed to compete together. The counter-arguments thus appear to be self-contradictory.
Also read: Delhi High Court approached for separate vacancies for transgender persons in public employment
Men on average have greater endurance when compared to women not just because of access to resources but because of higher circulating haemoglobin levels. This is because after hitting puberty, the circulating testosterone levels among men become 15 times that of women. Pre-pubescent males and females show no observable difference when it comes to athletic performance due to similar testosterone levels.
A separate protected female category is then an objective criterion for fair competition, one arising out of necessity and for this reason, the International Association of Athletics Federations (IAAF) established a rule in 2011 excluding hyperandrogenic women from participating in the female category in sports.
It is important to note that human rights violations in sports are already a reality, both domestically and globally.
This meant that women had to show that they had serum testosterone levels of less than 10 nanomoles per liter (nmol/L). Effectively, what this rule implies is that anyone with serum testosterone levels greater than 10 nmol/L is not a female for the purpose of sports and attacks the very fundamentals of gender identity.
This rule (Dutee Chand versus AFI, para 548) was heavily criticised as it not only excluded women suffering from Polycystic Ovary Syndrome (PCOS) or Polycystic Ovarian Disease (PCOD), who have higher levels of testosterone, but also potentially excludes every person who identifies as female from participating in female categories. For this reason, this rule was challenged and stayed with the possibility of going into the question again in the future once adequate evidence was available
Since then, the inclusion of transgender persons in sports has been in a limbo with different jurisdictions coming up with different guidelines and the World Athletics Council recently banning transgender athletes from participating in the women’s category.
Parallel to this, the academic community has taken up extensive qualitative and quantitative research to gather sufficient evidence for this question to be taken up again. So far, the studies indicate that there exists a direct correlation between testosterone levels and athletic performance (Handelsman et al, and Rickenlund et al).
The inclusion of transgender people in the female category has also received strong resistance from female athletes (non-hyperandrogenic persons) as they feel higher testosterone levels would give these athletes an unfair advantage. Transgender athletes identifying as females do not want to participate in the male category as it takes away their right to self-identify.
Indian athlete Dutee Chand is an example. She was subjected to invasive testing through a very insensitive public investigation and even labelled as a ‘man’. The entire procedure was an insolent attack on her human rights.
Proposed solutions
The concerns of neither female athletes nor transgender athletes are unfounded. Female categorisation is a protected category and is required to be so for fair competition.
But transgender athletes have an equal right to participate in sports. Globally, the United Nations’ International Covenant on Economic, Social and Cultural Rights (ICESCR), International Convention on the Elimination of all forms of Racial Discrimination (ICERD), and other laws already recognise sports participation as a human right.
Similarly, India’s Constitution guarantees fundamental rights to all citizens under Part III and specifically prohibits discrimination on the basis of sex (markedly no provision uses the term ‘gender’).
As women were granted access to sporting events, a separate category was created for them, based on recognition of the physical advantages held by male athletes. The female category was thus established as a distinct, protected classification.
However, in practice, transgender people face significant barriers to participating in sports, with many jurisdictions imposing bans on their participation in female categories. These bans not only violate the right to participate in sports but also other fundamental human rights such as privacy and dignity.
The World Athletics Council has suggested a potential solution to the issue of transgender athletes participating in the female category by requiring them to maintain testosterone levels below 2.5 nmol/L for 6–24 months, depending on the sport. However, this proposal raises concerns about the protection of human rights for athletes.
Firstly, reducing testosterone levels through medication, monthly injections, or surgery all have potential side effects and can significantly impact athletic performance. While this solution may create a level playing field in sports, it does little to address the human rights concerns of transgender athletes.
Furthermore, this proposal reinforces the binary notion of gender by requiring individuals to identify as either male or female, with no recognition of a third sex. This overlooks the fact that gender is a spectrum and fails to accommodate individuals who do not identify as strictly male or female.
In addition, implementing this proposal may result in invasive and insensitive testing procedures, similar to what Dutee Chand experienced, and violate the privacy and dignity of transgender athletes.
Therefore, while the proposed solution may address concerns about unfair advantages in sports, it raises other ethical and human rights concerns that need to be taken into consideration.
The other proposed solution that appears to be more viable is to move away from sex-based categories and instead have testosterone levels as a measuring criterion. Instead of then having just two ends of the gender spectrum as categories it could be made more inclusive with multiple categories.
This will also not be a wholly unprecedented move since in wrestling and boxing there are multiple categories based on weight for fair competition. By having a range of weight divisions instead of a binary system, it is ensured that athletes with similar physical attributes compete against one another, reducing the likelihood of significant disadvantages based solely on body mass.
The current system not only excludes transgender and intersex individuals from sports but also reinforces harmful gender stereotypes that restrict opportunities and perpetuate discrimination.
Circulating haemoglobin levels are estimated to account for 8-12 percent ergogenic advantage in men. It has been studied that on an average women’s testosterone levels range between 0–1.7 nmol/L while in men it is 7.7–29.4 nmol/L. Post puberty there has been shown at least an 8 percent increase in endurance performance in men due to increased testosterone.
Perhaps a controlled study calculating the circulating testosterone level ratio to athletic performance could come to our aid when defining new categories in sports. As a result, those falling in higher testosterone categories would automatically be competing with athletes with similar levels. Resultantly artificially increasing testosterone levels before competing would not give any added advantage.
India’s Constitution guarantees fundamental rights to all citizens under Part III and specifically prohibits discrimination on the basis of sex (markedly no provision uses the term ‘gender’). However, in practice, transgender people face significant barriers to participating in sports, with many jurisdictions imposing bans on their participation in the female categories.
A quantitative study researching the effects of testosterone levels in the short term could also be undertaken to study how they affect performance so as to lay down a monitoring period for testosterone levels before a competition to maintain fairness.
The current categorisation system for sports based on sex or gender has proven to be unsustainable in accommodating transgender and intersex athletes. A new categorisation system is needed to ensure that transgender and intersex sports persons do not face discrimination.
We are at a crossroads and even if testosterone may be dismissed as not the best parameter for categorisation through further empirical research, it is a significant improvement over the current binary gender identity system. Testosterone may be supplicated with additional parameters to ensure a more inclusive categorisation that provides a level playing field without being discriminative.
Indian athlete Dutee Chand is an example violation of privacy and dignity as she was subjected to invasive testing through a very insensitive public investigation and even labelled as a ‘man’. The entire procedure was an insolent attack on her human rights.
It is important to note that the development of a new categorisation system will require a collaborative effort from all stakeholders, including sports organisations, medical professionals, and athletes themselves. Ultimately, the goal should be to create a system that is fair, inclusive, and promotes equality for all athletes regardless of their gender identity.
