Dr Rachel McKinnon explains why participation in sport is a human right – even for trans women
BY DR. RACHEL MCKINNON
I never wanted to be an “activist” for athlete’s rights. I just wanted to race my bike and see how far I could advance in the sport I love. So far, this has led to a UCI Masters Track Cycling World Championship in 2018. I still have Olympic aspirations. It’s certainly hard enough to achieve such lofty goals, but it’s a lot harder when people are actively doing everything they can to ban you from competing, even when you’re following every rule under the strictest of scrutiny. They still call me a “cheater” just for existing.
There are a lot of arguments being bandied about on whether it’s fair for trans women to compete in women’s sport. Some people who oppose trans women’s inclusion in sport are increasingly, begrudgingly, willing to grant that trans women are women in terms of gender, but remain steadfast in their denial that trans women are not female in terms of sex. The idea is that we segregate sport on the basis of sex,and so, begrudgingly, while trans women may be women, they are not female and thereby shouldn’t be permitted into female-only sports categories.
Common “understanding” is that there is at least some rigid distinction between sex and gender. But this isn’t true for the purposes of sport or most governments.
First, most governments do not make any distinction between “sex” and “gender”. While trans people are not universally able to secure legal recognition of their (transitioned) sex, they are able in many countries. The US, Canada, UK, Australia, Germany, and a long list of other countries allow trans people to change the sex designation on their legal documents, often including birth certificates. In Canada, for example, a trans woman can be legally recognised as “female” without hormone therapy or genital surgery.
There is no legal distinction between being “female” and “a woman”. There are many examples where governments use sex/gender terms interchangeably. Consider the United Kingdom’s 2004 Gender Recognition Act. “Where a full gender recognition certificate is issued to a person, the person’s gender becomes for all purposes the acquired gender (so that, if the acquired gender is the male gender, the person’s sex becomes that of a man and, if it is the female gender, the person’s sex becomes that of a woman).” Note the use of “male gender” and “the person’s sex becomes that of a man”.
Moreover, international sport under the auspices of the International Olympic Committee (IOC) and their arms-length legal arbiter, the Court of Arbitration for Sport (CAS), do not make any distinction between sex and gender: they are also used interchangeably.
But how does sport determine what sex an athlete is for the purposes of competitions? Humans are not sexually dimorphic, meaning that people fall neatly into XX (female) and XY (male). Humans are bimodally distributed around XX and XY configurations, but there are many other possibilities including XXY, XYY, XO (a null chromosome), and others. Moreover, some XX people have Congenital Adrenal Hyperplasia (CAH), which causes much higher production of testosterone, typically leading the person to develop phenotypically male. Conversely, some XY people have Complete Androgen Insensitivity Syndrome (CAIS) where, while their body produces “typical” male levels of testosterone, their testosterone receptors are insensitive to the hormone, and this typically leads the person to develop phenotypically female.
Recognising this, the IOC last engaged in chromosomal testing of athletes in the Atlanta 1996 Olympics, and formally banned the practice in 1999. Since then, and noted explicitly in the 2015 Dutee Chand CAS decision, all sex-verification policies are banned. Sport organisations are no longer in the business of determining whether an athlete is male or female. Instead, the CAS panel notes, “The distinction between male and female is a matter of legal recognition” whereby “whether a person is a female is a matter of law”.
All Olympic-eligible sports are now required to respect an athlete’s legally recognised sex. If a trans woman’s identification documents say “female” then she is really female. Those who oppose trans women’s inclusion in sport typically say that trans women are not “really” female. They can scream “but biology” all they like: it doesn’t change that they have no legal standing.
More recently, some have become at least a little responsive to their losing this battle and have transitioned (pun intended) into what is now the most prevalent argument used against trans women’s inclusion in sport: alleged performance advantages.
But this is largely irrelevant. Trans athletes’ rights to compete are not contingent on showing that there isn’t a competitive advantage. What does matter is the human rights framework. Others frame this “debate” about trans women in sport as pitting trans women’s rights against cis women’s rights in a kind of conflict of rights. I’m here to tell you that there is no conflict of rights.
Sport is a human right. After a preamble, the IOC’s Olympic Charter lists seven Fundamental Principles of Olympism. The 4th begins, “The practice of sport is a human right.” That’s the first full sentence. And they mean competitive sport. There is no right to win in sport; there is no right to make a team selection in sport. The right is to participate and try to win, try to make the team, and strive for your best in the Olympic spirit of mutual understanding and of fair play.
Cis women do not have a right to exclude women they don’t like or don’t feel comfortable with. Sport and society has a long history of excluding women of colour, often trading on these same claims of alleged competitive advantage or not feeling “safe”. But these are not rights. Thus, extending the right for trans women to compete in sport with other women is not in conflict with other rights. We can’t make up rights and claim a conflict.
Some still object to trans women’s inclusion on the basis of some notion of “fairness” and alleged unfair competitive advantages that they think trans women enjoy.
This is why the human rights framing is what controls the issue, not whatever scientific evidence we may want to argue over, allowing us to distract from the core issue. The IOC is an international organisation, as is CAS. When they speak of “human rights”, this puts us into the realm of international human rights law and principles such as the United Nations Universal Declaration of Human Rights and the European Court of Human Rights European Convention on Human Rights.
Both frameworks require the elimination of discrimination against women on the basis of sex (or gender – remember, these are interchangeable). But they also include provisions for when we can justify what is otherwise discriminatory.
I’m only going to focus on the requirements that discriminatory policies are necessary and effective at promoting a worthy social goal, such as fairness in competition. If we can achieve the goal without infringing upon human rights, then we must. We can only potentially be justified in overriding human rights if doing so is necessary for, and effective at, promoting a worthy social goal.
In an unprecedented move, the UN Human Rights Council released a statement calling on the UN High Commissioner for Human Rights to look into discriminatory policies in sport, including restrictions on endogenous testosterone in women, calling out the International Association of Athletics Federations (IAAF) by name for its policy restricting endogenous testosterone for women.
The statement also explicitly refers to the aforementioned international human rights framework, claiming that “the eligibility regulations for the female classification published by the International Association of Athletics Federations… are not compatible with international human rights norms and standards” and that they’re concerned that “the absence of legitimate and justifiable evidence for the regulations to the extent that they may not be reasonable and objective, and that there is no clear relationship of proportionality between the aim of the regulations and the proposed measures and their impact.”
What’s most crucial about sport being a human right is that the default position is inclusion. The default is not “Exclude trans women until we have more evidence about there not being a competitive advantage”. Rather, the default must be “Include trans women unless we have sufficient evidence to justify discrimination in an international human rights framework”.
Trans women don’t have to justify our inclusion. The burden of argument is entirely on those who seek to exclude us. And, as I’ll briefly prove, that burden has not yet been met, and is unlikely ever to be met. For an in-depth treatment of this argument, see the paper Including Trans Women Athletes In Competitive Sport: Analyzing The Science, Law, And Principles And Policies Of Fairness In Competition (co-written with Aryn Conrad).
How much advantage do trans women have in sport? I’m here to say: it doesn’t matter. It really doesn’t. Let’s just assume that there is an inherently biological cause of the gender performance gap where we see an approximately 10-12% difference between peak cis men’s performances and peak cis women’s performances. Let’s also just assume that trans women are physiologically coextensive with cis men.
My point here is even if we assume this, it’s not enough to justify the exclusion of trans women from women’s sport.
Some will recoil: but isn’t this why we have men’s and women’s sport? Don’t we sex segregate sport because men are stronger and faster? No. In the 1992 Olympics, the skeet shooting competition was not sex segregated (just like equestrian competition remains). A Chinese woman, Zhang Shan, won the gold medal. In the following 1996 Olympics, the IOC sex segregated the event and didn’t offer a women’s category. The defending gold medallist was thus excluded from competition. A long list of other sports are sex segregated with no plausible physiological explanation.
But let’s see why comparing trans women to cis men is irrelevant. First, claims like “men are stronger than women” are, strictly speaking, false. There are many women who are stronger than many men. These claims really mean: the average man is stronger (taller, faster, etc.) than the average woman; or the best man is stronger (taller, faster, etc.) than the best woman. At present, these claims are true. But both elide the massive ranges within men and women. The shortest, weakest, slowest man is often the same as the shortest, weakest, slowest woman.
Elite women athletes are considerably stronger than the average cis man, and certainly the average trans woman. The average height of the 2016 Rio Olympics women’s high jump podium was 6’1.7”. A joint 10th place woman in the final was 5’5”; the gold medallist was 6’3.6” and was the tallest in the competition. The global average height for men is around 5’9”. Moreover, height is not uniformly distributed around the world. The average Dutch woman is around a foot-and-a-half taller than the average Indonesian woman.
We permit huge differences in natural physical traits within sport and call that “fair”. So even if we say that the average trans woman is four inches taller than the average cis woman, we already permit much larger height differences within women’s sport and call it fair. This is true for any natural physical trait one selects, including endogenous testosterone. And while there’s no evidence of a relationship between endogenous (internal, natural) testosterone and performance, my point is that even if there were, it’s insufficient to justify excluding trans women.
Fairness does not require that no athlete have a competitive advantage over her competitor. In fact, that’s the entire purpose of training, coaching, equipment, nutrition, and so on. And fairness does not require us to exclude those who have considerable performance advantages.
So where does this leave us? The “fairness” claim is that trans women are like cis men, and it is estimated cis men have a 10-12% performance advantage over women. Even if true, it’s not enough to justify excluding trans women.
Since we permit huge competitive advantages within women’s fields, excluding trans women for an (unproven) alleged competitive advantage – smaller than the range of competitive advantages we already permit in women’s sport – cannot be necessary for promoting fairness in women’s sport. It also, thereby, can’t be effective.
Excluding trans women from sport fails two of the required tests to justify a discriminatory policy under an international human rights framework.
The default is inclusion, not exclusion. We don’t need “more study” or “more evidence” in order to decide to grant what is everyone’s human right: the right to participate in competitive sport.
So the scientific evidence is effectively irrelevant. No competitive advantage that could ever be found to be attributed to trans women’s being trans will be enough for an exclusionary policy to be both necessary and effective at promoting fairness in sport, given the massive competitive advantages we already permit in women’s sport. The human rights argument is the one that controls this “debate.” And thus there is no debate.
This article originally appeared in the July 2019 issue of DIVA – grab your digital copy right here!
