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Falling Short FALLING SHORT: HOW THE INTERNATIONAL OLYMPIC COMMITTEE’S TRANSGENDER REGULATIONS FALLS SHORT OF ITS INTENDED PURPOSE OF PROMOTING FAIRNESS IN SPORT AND COMPETITION JORDAN SINGLETON* I. INTRODUCTION “It is the finals of the women’s 400 meters. It promises to be a real star attraction. The crowd is buzzing. There’s the lineup. The two to watch tonight are Alexis Hester in lane 4 and Linda Cox in lane 5. Let’s meet them. Linda, a decorated 400m specialist, has unquestionably dominated this event since Rio 4 years ago.” The entire world watches intently as the 2020 Olympic commentator drones on in his crisp British accent—who will win? Linda’s entire life has been dedicated to training for this moment. She took Silver four years ago, but the prior Gold medalist retired. Linda is less than 50 seconds away from the Gold. But the person beside her in Lane 4 is not to be taken lightly. There is something unique about Alexis, but Linda can’t let that thought distract her from the Gold. “Bang.” Almost immediately Alexis’s back is all Linda can see. She’s right on Alexis’s heals, but through the final turn Linda knows she has lost the Gold yet again. On the podium, as Alexis’s anthem is played, Linda fingers the Silver around her neck and stares at the Gold that should have been hers. Linda extends her hand, as expected of her, and shakes Alexis’s much larger rough hand. Alexis used to be Alex, a man. Alexis grew up as Alex. During college Alex was a world-class sprinter. But Alex always wanted to be “Alexis,” and soon after college began her transition. After her transition, Alexis still craved competition and continued to train with only one goal, an Olympic Gold. As a transgender athlete, she had more hurdles to overcome than her other Copyright © 2019, Jordan Singleton. * As a former NCAA Division II athlete and a recent graduate of Capital University Law School, my purpose in writing this article is to promote the discussion of regulations regarding gender identity in sports–particularly, the rules governing who transgender women can compete against. The answer in everyday recreational sports is simple, other women; but the answer is not so simple at the highest levels of competition. Thank you to Professor Dan Kobil, my faculty advisor, for his help and support throughout this writing process. Thank you also to my parents for their continued support. This is not an easy topic to discuss, but they gave me the confidence to approach it without fear. 790 CAPITAL UNIVERSITY LAW REVIEW [47:789 competitors, but she strictly complied with the IOC requirements and maintained the required lower testosterone levels that would allow her to achieve her childhood dreams. After stepping off the podium Linda and Alexis are immediately bombarded with questions from reporters. “Linda! Do you think the race was fair?” “Alexis! Do you think you would still be standing on the podium if you had been born a woman?” “Linda! Are you going to challenge the outcome?!” Everyone wants to know, was it truly fair to allow Alexis, a transgender female, a former male, to compete in the female division? After all, even if Alexis’s testosterone levels are below the required IOC threshold, there are other biological factors that contributed to her success. Only 3 years ago, Alexis was an elite collegiate athlete, even among males. Linda and Alexis can only stare at each other, unable to publicly voice their true feelings. “Of course, it’s fair; I’m a woman.” “I would have won if she wasn’t here.” Gender transformation is beginning to transform the world of sports. The world seems to be moving towards a more gender-fluid mindset and the Olympic Games are struggling to keep up.1 Historically, the International Olympic Committee (“IOC”) policed the female division to prevent “men posing as women” from competing.2 In 1968, the IOC began gender testing athletes who wanted to compete in the female division.3 It wasn’t until 2003 that the IOC finally implemented a rule that allowed transgender athletes to compete in the Olympics;4 however, female transgender5 athletes were required to have sex reassignment surgery 1 See Lauren Booker, What it means to be gender-fluid, CNN (Apr. 13, 2016), https://www.cnn.com/2016/04/13/living/gender-fluid-feat/index.html [https://perma.cc/XH99-DD3K]. 2 Samantha Shapiro, Caught in the Middle, ESPN (Aug. 1, 2012, 2:49 PM), http://espn.go.com/olympics/story/_/id/8192977/failed-gender-test-forces-olympianredefine -athletic-career-espn-magazine [https://perma.cc/Y8CZ-8KZ9] (“For as long [as] women have participated in the Olympics, the organization’s regional governing bodies, as well as most international sports federations, have policed competitions, trying to root out men posing as women.”). 3 Pamela B. Fastiff, Gender Verification Testing: Balancing the Rights of Female Athletes with a Scandal-Free Olympic Games, 19 HASTINGS CONST. L.Q. 937, 938 (1992) (“Since 1968 the International Olympic Committee has required all female competitors to submit to a gender verification test prior to competing in the Olympic Games”). 4 The Associated Press, Transgender Athletes Can Now Compete in the Olympics Without Surgery, NY TIMES (Jan. 25, 2016), https://www.nytimes.com/2016/01/26/sports/ol ympics/transgender-athletes-olympics-ioc.html [https://perma.cc/RJK5-AZJH]. 5 Madeline B. Deutsch et al., Effects of Cross-Sex Hormone Treatment on Transgender Women and Men, 125 Obstetrics & Gynecology no.3, 605, 607 (2015) (“Transgender (continued) 2019] FALLING SHORT 791 before they were allowed to compete.6 The IOC got rid of the surgical requirement in 2015.7 Now, female transgender athletes are only required to keep their testosterone levels under a certain threshold in order to compete.8 This article argues that the approach currently employed by the IOC is inadequate to ensure both fairness to competitors and access to competition for transgender athletes. It falls short of its intended purpose of promoting fairness in sport, because it fails to protect cisgender9 female competitors from being at a competitive disadvantage. First, this article will examine the administrative structure that is involved in the regulation of amateur athletic competition. It will open with an explanation of the legal framework for the Olympic Games. It will describe the IOC’s authority as an international organization, the importance of the rules governing sporting competitions that have been established by the IOC, and the method the IOC uses to settle nontechnical legal disputes. Next, this article will discuss the ineffectiveness of the current requirements for transgender athletes. It will analyze the current rule for female transgender athletes and its deficiencies. It will discuss the IOC’s purpose for establishing the rule and how the rule ignores biological factors developed by female transgender athletes after their male puberty cycle. Lastly, this article will discuss two solutions that the IOC should consider replacing the current rule governing transgender athletes with to women are persons assigned male at birth, but who identify as women and who want to use estrogens with or without an anti-androgen to develop female secondary sex characteristics.”). 6 Statement of the Stockholm Consensus on Sex Reassignment in Sports, International Olympic Committee (Oct. 28, 2003), https://stillmed.olympic.org/Documents/Reports/EN/e n_report_905.pdf [https://perma.cc/E2JH-ZJXC] [hereinafter Stockholm Consensus]. See also Transsexual Athletes OK for Athens, CNN (May. 18, 2004), edition.cnn.com/2004/SPO RT/05/17/olympics.transsexual/ [https://perma.cc/B2AE-DL9Q]. 7 IOC Consensus Meeting on Sex Reassignment and Hyperandrogenism, International Olympic Committee (Nov. 2015), https://stillmed.olympic.org/Documents/Commissions_P DFfiles/Medical_commission/2015-11_ioc_consensus_meeting_on_sex_reassignment_and _hyperandrogenism-en.pdf [https://perma.cc/PM88-WFL9] [hereinafter Sex Reassignment Meeting]. 8 Id. 9 ”[B]eing a person whose gender identity corresponds with the sex the person had or was identified as having at birth.” Cisgender, MERRIAM-WEBSTER ONLINE DICTIONARY (2018), https://www.merriam-webster.com/dictionary/cisgender [https://perma.cc/P7SG- LRPW]; See also Katy Steinmetz, This Is What ‘Cisgender’ Means, TIME (Dec. 23, 2014), http://time.com/3636430/cisgender-definition/ [https://perma.cc/222V-5H8H]. 792 CAPITAL UNIVERSITY LAW REVIEW [47:789 remedy the deficiencies of that rule. The first alternative is to create a new rule that directly addresses the real biological differences that exist between cisgender female and transgender female athletes. The cisgender female to transgender female comparison may seem insensitive to some, but transgender female athletes were once cisgender men, and therefore have male biological features.10 The second alternative would be to create a new gender-fluid division for athletes that do not fit into the conventional categories of male or female. This article argues that the creation of a new division is the best solution because it benefits the interest of cisgender and transgender athletes in competing without raising the specter of unfairness present in the Linda/Alexis hypothetical. II. THE IMPORTANT ROLE OF THE IOC IN THE REGULATION OF AMATEUR ATHLETIC COMPETITION. In order to understand the rules governing transgender athletes, it is necessary to describe the administrative structure that exists to regulate international sports competition. Thus, this section will first discuss the role of the IOC and its subsidiaries in regulating international sport. Next, this section will describe the Court of Arbitration for Sport, which adjudicates disputes concerning administration of the IOC’s rules. Following this overview, this article will examine ineffectiveness of the committee’s current rule. A. International Olympic Committee and Its Subordinates The International Olympic Committee (“IOC”) is the supreme authority of the Olympic Games and Olympic Movement11.
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