The Negligence of Biological Reality

The discussion on the inclusion of transgender people in sport has two basic positions, each accentuating different arguments. One focuses on biology, emphasizing how the increase in testosterone levels in boys during puberty, which drives biological and morphological changes, is the lead cause of major performance differences between biological men and women. And because of these differences, it is necessary to uphold a category for women protected against male biology. The other emphasizes the connection between identity and rights and stresses that sport cannot carve out its own separate space when society at large recognizes legal identity as key in societal matters. Therefore, transgender athletes have a right to participate in the category of the gender they identify with. As such, the discussion is a struggle over science, rights, and the proper understanding of what sport is and ought to be.Since 2003, the International Olympic Committee (IOC) has moved from an anatomy- and biology-oriented position on this matter to a rights- and identity-oriented position. This article focuses on the “IOC Framework on Fairness, Inclusion and Non-Discrimination on the Basis of Gender Identity and Sex Variations.”1 The Framework presents a ten-principle approach to guide International Federations’ (IFs) regulations and criteria for eligibility in the men's and women's categories. As such, the IOC does not want to abolish these categories, as suggested by some philosophers,2 but merely asks IFs to consider revising their criteria. The IOC thus acknowledges that a separation is desired, while they question what determines eligibility in these categories. In this article, I will assess the IOC Framework and identify weaknesses and failures in the line of reasoning for its principles. I agree with several basic tenets of the principles in the framework (non-discrimination, the importance of evidence, the primacy of health and bodily autonomy, and the stakeholder-centered approach). However, many of these items are framed and interpreted in problematic ways. This is especially seen in the ignorance of sex differences, the disregard of the logic of categories, the “no presumption of advantage,” and the negligence of female athletes’ rights.I begin by noticing how the absence of trans men from the discussion exposes its central dilemma, namely that trans women hold a performance advantage over biological women. Hereafter, I recount what the performance differences between males and females amount to before I describe the evolution in the IOC's guidelines for transgender athletes. In the subsequent main body of the text, I go through seven of the ten principles to analyze their content and consequences. Before I conclude, I address the issue of human rights in this context. My discussion is directed at elite sports. In grassroot and recreational sports, other conditions may apply, and so assessments and conclusions may differ. Yet, fairness is important at all levels of sport.Truly, when discussing transgender people in the context of sport, we discuss trans women, that is people assigned male at birth. It is telling that the status of trans men, that is people assigned female at birth, is almost absent from the discussion and that it is the inclusion of trans women in the female category that causes tension. Trans men who want to compete with men are not seen to cause significant rights, fairness, or safety problems for other athletes. This is due to two circumstances: (1) Trans men's treatments with androgens (literally male makers) make it obvious that they cannot (continue to) compete with women, since this would amount to accepting doping. But then, since they identify as men they should not want to compete with women; (2) An acknowledgement of the fact that female bodies—even with male levels of exogenous testosterone—are no threat to the competitive fairness of non-doping males, and so they are welcomed in the men's category. This assessment corresponds to what was found in a study of cross-hormone therapy in transgender people. After twelve months of treatment, trans women (i.e., biological males) who underwent testosterone suppression were still stronger than trans men (i.e., biological females) who had testosterone treatment.3In running, before the age of ten, the best performances between boys and girls are nearly identical. The fastest nine to ten-year-old boy completed a 100-meter sprint in 12.73 seconds and the fastest girl in the same age bracket in 12.85, that is less than 1 percent difference. However, for fifteen to sixteen year olds, the gender gap grows from crack to gulf: 10.51 vs. 11.34, a + 10% difference.4 When the most talented boys are fourteen to fifteen years old, they match or beat female world records in swimming and athletics.5 The cause for this is testosterone and what it does to male biology when puberty kicks in. In sports that rely on power, speed, strength, and endurance, the performance differences between men and women are very large. In adults, world record differences between men and women are between 10 and 50 percent. The more upper-body strength involved in a discipline, the greater the difference.6 Imagine a race in a stadium with the best male and female 10,000-meter runners. When Joshua Cheptegei of Uganda crossed the finish line, world record holder Letesenbet Gidey from Ethiopia would have to run another three laps to complete her race. That is how much a 10 percent difference is and why most sports have a protected category for women.Since it is impossible to include and exclude trans women in the female category at the same time, it is not an issue where a common ground can be found, and consequently the IOC has not reconciled the two sides with the Framework.In 2003, the IOC presented their Stockholm Consensus statement on sex reassignment in sports. It came out of a committee convened by the IOC Medical Commission, and said that “individuals undergoing sex reassignment from male to female after puberty” were eligible for competition in female competitions under the conditions that they (1) had completed “surgical anatomical changes . . . , including external genitalia changes and gonadectomy”; (2) that “legal recognition of their assigned sex has been conferred by the appropriate official authorities”; and (3) that “hormonal therapy appropriate for the assigned sex has been administered in a verifiable manner and for a sufficient length of time to minimize gender-related advantages in sport competitions.” Also, “eligibility should begin no sooner than two years after gonadectomy.”7 In the recommendations of the 2015 IOC “Consensus Meeting on Sex Reassignment and Hyperandrogenism,” that replaced the Stockholm Consensus, the requirement to remove testes and to have surgery of the external genitalia was discarded. The tone and attitude had also changed, and so the importance of ensuring “that trans athletes are not excluded from the opportunity to participate in sporting competition” was accentuated. This was an important shift. Yet, the priorities were clear, and the document stressed that “the overriding sporting objective is and remains the guarantee of fair competition. Restrictions on participation are appropriate to the extent that they are necessary and proportionate to the achievement of that objective” (author's italicization). To secure this, the IOC introduced a requirement that a trans woman “must demonstrate that her total testosterone level in serum has been below 10 nmol/L for at least 12 months prior to her first competition.”8 It's important to note that biological women have testosterone levels of 0.1–1.7 nmol/L while men's are at least fifteen times higher, ranging from 7.7–29.4 nmol/L.9 While both the specific 10 nmol/L limit and the general use of testosterone limits to remedy male performance advantage has since been contested, the 2015 guidelines rested on basic assumptions of fairness in sport and the application of science to regulate eligibility into categories. This changed with the 2021 Framework. The IOC now emphasizes that the “Framework is informed by a human rights approach in its broadest sense, thereby also including the right to participate in sport as enshrined in the Olympic Charter.”10On the face of it, it is hard to disagree with the first principle: “Everyone, regardless of their gender identity, expression and/or sex variations should be able to participate in sport safely and without prejudice.”11 Most would applaud this idea, however, what is missing is a clear note that this does not entail a right to do so in any category of your own choosing. This may sound obvious, but exclusion from categories is fundamental to uphold them, make them meaningful, and to secure inclusion. Categories only make sense if access to them are restricted. This goes for age categories, weight categories, para-sport categories, and it goes for the men's and women's categories. “All categories are both inclusive and exclusive,” write Parry and Martínková. They continue: “Sport is exclusive (in one sense) since it logically discriminates kinds and categories, precisely to secure equality of contest. But this is not ‘normative discrimination’. . . . Having discriminated different categories, people are included in a category, and therefore excluded from the others. . . . This is exclusion for the sake of inclusion.”12 For sure, this does not mean that categories are not contested. They are, because with criteria for eligibility they also define inclusion and exclusion, and athletes in borderlines can feel unaccommodated. But we have categories because we want them, since they serve to promote fairness and inclusion. And when we have them, they require policing. Therefore, even if we grant that the practice of sport is a human right, one does not have a right to choose what category to participate in. This is a matter of eligibility.Principle 2 asks IFs to employ eligibility criteria in a way that prevents harm. This seems self-evident, so most of all this principle comes across as an apology for the 2003 consensus statement and its requirement of genital surgery and gonadectomy. However, as we shall see below, the no-harm principle takes a different shape and emphasis in principle 7.Principle 3, non-discrimination, is more problematic. Again, on the surface it appears benevolent: “Eligibility criteria should be established and implemented fairly and in a manner that does not systematically exclude athletes from competition based on their gender identity, physical appearance and/or sex variations.”13 If this was all, it would be unproblematic. But the Framework specifies that “athletes should be allowed to compete in the category that best aligns with their self-determined gender identity.” It is stipulated like this because the Framework has rights as its underlying basis. And since non-discrimination is “a basic principle of international human rights law,” it is the rights-principle that is followed rather than a fairness-principle following the logic of categories. The incoherence of the position becomes evident when the IOC further explains that “principle 3 aims to ensure that where eligibility criteria are developed, they are free from discriminatory assumptions about a broad class of people.”14 The whole point of categories is that they rest upon “assumptions about a broad class of people.” When Olympic boxers over 91 kg (super heavyweight) are in a different category than boxers up to 75 kg (middleweight) it is not because we know that all super heavyweight boxers are better than all middleweight boxers, but because we deduce from typical cases, broad classes, and presume that the typical case or individual from one weight class has an unfair advantage over the typical case or individual from another weight class. When categories discriminate, they do so in a logical way that distinguishes X from Y, and not in a normative way that favors X over Y.15 The IOC confuses these two types of discrimination in principle 3. To allow self-identification into categories (because no “discriminatory assumptions about a broad class of people” are accepted), is to suspend regulation of categories based on objective criteria.Yet the IOC recognizes that eligibility criteria for men's and women's categories may be needed if “disproportionate competitive advantages” exist. However, when specifying how such criteria should be determined, the IOC both misconstrues what an advantage is (principle 5) and misunderstands what science is (principle 6).Principle 5 is possibly the most unscientific of the ten principles. In prolongation of principle 3, it states that “until evidence . . . determines otherwise, athletes should not be deemed to have an unfair or disproportionate competitive advantage due to their sex variations, physical appearance and/or transgender status.” This is in stark contrast to the 2015 consensus paper. The IOC has further elaborated that in “determining what is to be defined as an unfair and disproportionate advantage, sports bodies ought to consider the full distribution of ability that already exists in their sport, including among all women.”16 Rather than accepting objective boundaries of categories, this position resorts to the argument that if the retained advantage a trans woman has is within the range of female metrics, then it should not lead to exclusion, disregarding that this applies to 99 percent of all males, irrespective of gender identity.17 To be clear, if one follows such a range view rather than the advantage view, it means that if a trans woman does not perform over or beyond what any female athlete has ever done in that discipline, then it is to be considered within the acceptable range of the category. Since this applies to 99 percent of all males, the logical consequence of the range view is not to have a female category that includes trans women, but to abandon the women's category and only have one category for all humans. De jure this would guarantee full and unrestricted inclusion, but de facto exclude most women, as per the above discussion on the logic of categories. Therefore, it is a solution most stakeholders find unacceptable. The point of the matter is that the male advantage in sports is a biological phenomenon and not a presumption or a preconceived opinion. It is the reason for having a category protected against male biological advantage, so that girls and women can also excel, be celebrated, and rewarded.Principle 6 only adds to this. It says that if federations want to regulate transgender athletes, those regulations should be based on “robust and peer reviewed research that demonstrates a consistent, unfair, disproportionate competitive advantage in performance.” This research should largely be “based on data collection from a demographic group that is consistent in gender and athletic engagement with the group that the eligibility criteria aim to regulate.”18 Accordingly, since no peer-reviewed studies of in-competition performance differences between elite trans and elite biological women in various sporting disciplines exist, no regulations can be made. While such a conclusion disregards existing research on transgender people, principle 6 also reverses the burden of proof, and is unscientific.First, there are numerous controlled longitudinal studies that have consistently shown that hormonal suppression in trans women does not remove male advantage.19 Some parts are downregulated completely (hemoglobin), while others are not affected at all (skeletal morphology). But there will be a persistent legacy of male advantage. Even after several years of testosterone suppression, most often to levels below 1.0 nmol/L, there is significant retained advantage. Hilton and Lundberg reviewed the literature on testosterone suppression and performance advantages in transgender women and found that “the muscle mass advantage males possess over females, and the performance implications thereof, are not removed by the currently studied durations (4 months, 1, 2 and 3 years) of testosterone suppression in transgender women.”20 The authors conclude that the longitudinal studies “examining effects of testosterone suppression on muscle mass and strength in transgender women consistently show very modest changes, where the loss of lean body mass, muscle area and strength typically amounts to approximately 5% after 12 months of treatment”21 Therefore, testosterone's transformation of boys to men cannot be reversed. Before puberty, the performance differences between boys and girls are small, but with puberty they become massive. Suppressing testosterone in adult males does not remove these differences. To hypothesize that this might not be the case in elite trans women22 ignores what any sport science student knows, namely that training counteracts muscle loss. Accordingly, a science-based hypothesis would be that the retained advantage is larger in elite trans women, not smaller.Second, unlike what is asserted in principle 6, a scientific approach begins with what is known, namely that males have a significant performance advantage over females. That is the null hypothesis. In considering whether trans women, that is, male-bodied athletes, should be eligible for the women's category, the burden of proof lies not with those who say this advantage exists but with those who claim they have no advantage or that testosterone suppression causes the removal of the advantage.Third, to demand, as the IOC does, that “until evidence . . . determines otherwise, athletes should not be deemed to have an unfair or disproportionate competitive advantage due to their . . . transgender status” is irrational and unscientific. Irrational because trans women have developed as males. Unscientific because it cannot be scientifically demonstrated that a given athlete has a “disproportionate competitive advantage” over the total population of athletes in their event. It is the range view at play. To interpret the IOC's principles to mean that such research should demonstrate “disproportionate competitive advantage” on the group level, does not make the task feasible. It would require researchers to find ten–sixteen elite transgender athletes within each sport and each sport discipline and compare them to a matched control group of biological women to produce the relevant results. This is demanding something from science that science cannot deliver.Finally, to argue that hormone suppression (if applied) causes trans women to be disadvantaged from males, is not an argument to include them with females. Only an argument to not include them with males because they would have a disadvantage. This could just as well call for a third category rather than inclusion with female athletes.The no-harm notion of principle 2 reappears in principle 7: “Athletes should never be pressured by an International Federation, sports organization or any other party (either by way of the eligibility criteria or otherwise) to undergo medically unnecessary procedures or treatment to meet eligibility criteria.”23 Here the prevention of harm is extended to mean that athletes must not be asked to accept, for instance, downregulating testosterone as part of eligibility criteria, as was the case in the 2015 consensus and is presently found in many IFs’ regulations. This is problematic for two reasons. First, as noted by the International Federation of Sports Medicine (FIMS), the unhelpful and emotionally charged notion of “medically unnecessary procedures” disregards that gender affirming therapy has been shown to have positive effects on the quality of life in transgender people.24 Second, if not barring them altogether, it hinders IFs from making testosterone level-based regulations for gender classification for trans women. As FIMS notes, “If an athlete is fully informed and consents, then it is their free choice to undergo carefully considered or necessary interventions for gender classification for sport to compete fairly and safely in their chosen gender. Free choice is a fundamental human right, but so is the right to fair and safe competition.”25 Taking this option away from IFs gives them basically only two alternatives. They can either bar trans women that have experienced any part of male puberty from competing with biological women altogether (like World Aquatics have done26), or accept self-identification as the only criteria for eligibility (like USA gymnastics have done27).As things stands, controversy arise. The UK Sports Council's Equality Group made a thorough report on the subject and found that among those interviewed and consulted, there were high levels of frustration, animosity, and emotion. Many athletes and stakeholders who considered that fairness and safety could not be achieved with transgender inclusion into female sport did not feel confident in voicing these opinions: “Some said that they had been threatened with sanction or disciplinary action if they spoke out. . . . Many felt they had no option but to remain silent in order to keep their job.”28 In light of this, it should be welcomed when principle 8 says that there needs to be a stakeholder-centered approach when eligibility criteria are revised, where IFs “meaningfully consult with a cross-section of athletes who may be negatively affected in order to prevent harm.”29 However, the IOC only find one side to be important in such stakeholder consultancy processes: “This is a particularly valuable opportunity to constructively engage with the athletes that would be most directly impacted by eligibility criteria, namely trans athletes.”30 Biological women, a large group clearly affected by such principles, are not considered as being important for stakeholder consultations in female sport.As mentioned, the Framework takes a human rights approach. It refers to §4 in the Olympic Charter's Fundamental Principles of Olympism, stating that “the practice of sport is a human right,” and it aims to be aligned with the IOC's commitment to human rights and international human rights law. Hereby the IOC wants to highlight that sport cannot diverge with rules separating it from the rest of society. However, because of sport's highly competitive nature, and the pivotal role biological bodies play herein, it relies on categorization for the purpose of fairness and inclusion in a way society does not. To be excluded from a category one is not eligible for is not a denial of one's human right to participate in sport. Consequently, a trans woman who is denied access to the female category is not excluded from sport, only from a subcategory she claims to have the right to participate in. However, she must first satisfy the eligibility criteria before she can claim inclusion. In this way, “eligibility confers inclusion.”31In this article, I have examined the “IOC Framework on Fairness, Inclusion and Non-Discrimination on the Basis of Gender Identity and Sex Variations” to highlight its problematic assumptions and erroneous argumentation. They can be summarized thus: with principle 3, which allows athletes “to compete in the category that best aligns with their self-determined gender identity,” principle 5, which says that IFs can make “no presumption of [performance] advantage,” and principle 7 that there must be no medical “treatment to meet eligibility criteria,” the IOC effectively says that gender self-identification is enough to be eligible to participate in the women's category. This is despite knowledge (a) of males’ large performance advantage, and (b) that testosterone suppression in trans women does not reverse the advantage.The inconvenient truth is that trans women who have experienced male puberty cannot be included in the women's category while upholding fairness and (in some sports) safety for biological women. With the Framework, the IOC has chosen ideology over science and so neglect what they once knew, namely that the “overriding sporting objective is and remains the guarantee of fair competition.”