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. It is also the
10 See Deutsch, supra note 5. 11 See Internatioanal Olympic Committee, Leading the Olympic Movement, OLYMPIC.ORG, https://www.olympic.org/the-ioc/leading-the-olympic-movement [https://per ma.cc/75WK-CQBX]. The Olympic Movement is the concerted, organized, universal and permanent action, carried out under the supreme authority of the IOC, of all individuals and entities who are inspired by the values of Olympism. The goal of the Olympic Movement is to contribute to building a peaceful and better world by educating youth through sport practiced in accordance with Olympism and its values. Belonging to the Olympic Movement requires compliance with the Olympic Charter and recognition by the IOC.
Id. See also JAMES A.R. NAFZIGER, INTERNATIONAL SPORTS LAW 32 (1988); Olympic Charter, INT’L OLYMPIC COMM. 15, 31 (October 2018), https://stillmed.olympic.org/media/ Document%20Library/OlympicOrg/General/EN-Olympic-Charter.pdf#_ga=1.48372134.10 (continued) 2019] FALLING SHORT 793 de facto arbiter of most international amateur sporting events.12 The IOC is a nongovernmental organization incorporated under Swiss law.13 The IOC’s rules are the principal means of regulating international amateur sports competition.14 The IOC follows the rules set out in the Olympic Charter when enforcing sports competitions.15 Rule 4 of the Olympic Charter provides that any person or organization that participates in the Olympic Movement shall accept the supreme authority of the IOC and be bound by its rules and to its jurisdiction.16 The IOC’s jurisdiction is very broad so it delegates part of its powers to International Federations17 and the National Olympic Committees.18 International Federations are “sport-specific regulatory bodies that set international rules under the jurisdiction of the IOC.”19 The IOC delegates the control over particular sports to individual International Federations.20 National Olympic Committees are responsible for representing their
7193644.1486061307 [https://perma.cc/732L-K2B3] [hereinafter Olympic Charter] (“Under the supreme authority and leadership of the International Olympic Committee, the Olympic Movement encompasses organizations, athletes and other persons who agree to be guided by the Olympic Charter.”). 12 Id. 13 NAFZIGER, supra note 12, at 34. 14 Id. at 32–33 (“Even though the IOC is technically a nongovernmental organization with only limited competence outside the Olympic arena, its continuous response to the needs of the global sports community has established its Rules as the principle means for regulating international sports competition.”). 15 Id. at 32 (“Of particular . . . significance are the Rules of the Olympic Charter, which best evidence international custom pertaining to sports competition . . . .”). 16 Id. at 34; Olympic Charter, supra note 12, at 16 (“Any person or organisation belonging in any capacity whatsoever to the Olympic Movement is bound by the provisions of the Olympic Charter and shall abide by the decisions of the IOC.”). 17 International Olympic Committee, International Sports Federations, OLYMPIC.ORG, https://www.olympic.org/ioc-governance-international-sports-federations [https://perma.cc/P2SW-3KBJ] (“The International Sports Federations are responsible for the integrity of their sport on the international level. . . . International Sports Federations seeking IOC recognition must ensure that their statutes, practice and activities conform with the Olympic Charter.”). 18 International Olympic Committee, National Olympic Committees (NOCs), OLYMPIC.ORG, https://www.olympic.org/ioc-governance-national-olympic-committees [http s://perma.cc/FQZ4-7VAG] (“The mission of the National Olympic Committees (NOCs) is to develop, promote and protect the Olympic Movement in their respective countries. . . . The NOCs promote the fundamental principles of Olympism at a national level within the framework of sports.”). See also ADAM EPSTEIN, SPORTS LAW 194–95 (2003). 19 Id. at 195. 20 Id. (“The IOC delegates to individual international federations (IFs) the technical control of all aspects of the sport they supervise . . . .”). 794 CAPITAL UNIVERSITY LAW REVIEW [47:789 respective country at the Olympics, essentially a country’s national version of the IOC.21 National Olympic Committees use national governing bodies, a country’s equivalent of an International Federation, to oversee particular individual and team sports.22 All of these organizations fall under the umbrella of the IOC and must follow the IOC’s rules.23 Therefore, it is crucial for the IOC to properly govern transgender athletes at the global level, because it will set a standard for how these individuals will be allowed to compete across the international sports world. The IOC’s decisions have a trickledown effect on how International Federations and National Olympic Committees enforce their respective policies.24 B. Court of Arbitration for Sport (CAS) The Court of Arbitration for Sport (“CAS”) adjudicates disputes concerning administration of the IOC’s rules.25 The IOC created the CAS in 1983 to settle judicial disputes among athletes, international and national sports federations, National Olympic Committees, and Olympic organizers.26 The IOC does not handle cases of technical disputes (i.e., disqualifications and timekeeping); those decisions are handled by the appropriate International Federation.27 Instead, the IOC handles issues of a nontechnical nature.28 These issues must be submitted by to the IOC Executive Board by an National Olympic Committee, an International Federation, or the organizing committee of the city where the games are being held.29 Violations pertaining to eligibility are “taken into
21 Id. (“The IOC recognizes national Olympic committees (NOCs) as the sole authority in representing their respective countries at the Olympic Games as well as at other events held under the patronage of the IOC . . . .”). 22 Id. 23 Id. at 194. 24 For example, in the United States, after the IOC’s 2003 adoption of transgender rules, the United States Golf Association and USA Track and Field adopted the identical policy. See ANNE L. DEMARTINI, Thirty-Five Years after Richards v. USTA: The Continued Significance of Transgender Athlete’s Participation in Sport, in SPORT AND THE LAW 97, 110 (Samuel O. Regalado & Sarah K. Fields, The Univ. of Ark. Press 2014). 25 Richard H. McLaren, Introducing the Court of Arbitration for Sport: The Ad Hoc Division at the Olympic Games, 12 MARQ. SPORTS L. REV. 515, 516 (2001). 26 Id. 27 NAFZIGER, supra note 11, at 35. 28 Id. 29 Id. at 35. 2019] FALLING SHORT 795 consideration” by the Eligibility Commission.30 The CAS was created by the IOC specifically to handle these types of disputes.31 Like the IOC, the CAS does not resolve technical disputes, but “addresses issues like eligibility and suspensions of athletes . . . .”32 “The Court provides a forum for the world’s athletes and sports federations to resolve their disputes through a single independent and accomplished sports adjudication body.”33 The CAS is in the course of developing universal principles that are becoming recognized as de facto sports “law” and has established a worldwide reputation for competence in dealing with sports-related disputes.34 The CAS functions outside of all sports organizations in order to settle sports-related disputes through arbitration.35 The Code of Sports Related Arbitration,36 in Article S 1, provides for arbitration “only in so far as the statutes or regulations of the said sports bodies or a specific agreement” exist establishing the CAS jurisdiction.37 Thus, CAS arbitration, as with most arbitration, is founded upon contractual agreement, and any person (natural or artificial)38 with the capacity to effect a legal transaction may have recourse through the CAS.39 Although its jurisdiction is optional, judgements by the CAS are contractually binding.40 The CAS determines if any proposed rule by the IOC promotes both fairness and equal gender classification.
30 Id. at 35. 31 Id. 32 WALTER T. CHAMPION JR., FUNDAMENTALS OF SPORTS LAW 616 (2d ed. Supp. 2018). See also, NAFZIGER, supra note 12, at 36 (“The CAS is designed to help settle nontechnical ‘disputes of a private nature arising out of the practice or development of sport, and in a general way, all activities pertaining to sport and whose settlement is not provided for in the Olympic Charter.”). 33 McLaren, supra note 25, at 516. 34 Id. 35 Id. at 517. 36 This Code provides the governing rules for how the CAS operates. 37 Id. (citing COURT OF ARBITRATION FOR SPORT, Code of Sports-related Arbitration A- S1 (January 1, 2016), www.tas-cas.org/fileadmin/user_upload/Code_2016_final__en_.pdf [https://perma.cc/7RB2-ALCH]). 38 McLaren, supra note 25, at 517 (“This includes, international sports federations and sports associations, sports organizing committees, radio sponsors, television broadcasters and any other corporation involved in a sport- related dispute.”). 39 Id. 40 NAFZIGER, supra note 11, at 36. 796 CAPITAL UNIVERSITY LAW REVIEW [47:789
III. THE INEFFECTIVENESS OF THE IOC’S CURRENT RULE The IOC’s current rule regulating transgender athletes is ineffective in achieving fairness and equality in sport. This section will first cover the current rule and the issues it presents. Next, it will discuss biological and anatomical differences between men and women, and how those differences are not reversed during gender transition. Finally, this section will explain how the biological and anatomical differences have given male athletes the ability to outperform female athletes and what that means for transgender female athletes. A. Current Transgender Guidelines The Medical and Scientific Commission (the “Commission”) guides the IOC in relation to medical and science issues affecting athletic competitions.41 The Commission “advises the IOC on athletes’ health, the promotion of health and physical activity, and the protection of clean athletes.”42 The Commission considers itself to have a key responsibility in “developing and promoting the adoption of ethical standards in sports science and medicine.”43 In November of 2015, the IOC held a meeting to review the available scientific and clinical evidence on sex reassignment and its effects on competition.44 At this meeting the Commission created the current governing rule for transgender female athletes.45 The current rule states: Those who transition from male to female are eligible to compete in the female category under the following conditions: 2.1. The athlete has declared that her gender identity is female. The declaration cannot be changed, for sporting purposes, for a minimum of four years. 2.2. The athlete 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 (with the requirement for any longer period to be based on a
41 Medical and Scientific Commission, OLYMPIC, https://www.olympic.org/medical-and- scientific-commission#ancre14 [https://perma.cc/P5V7-Y9Q2]. 42 Id. 43 Id. 44 Sex Reassignment Meeting, supra note 7. 45 See id. 2019] FALLING SHORT 797
confidential case-by-case evaluation, considering whether or not 12 months is a sufficient length of time to minimize any advantage in women’s competition). 2.3. The athlete’s total testosterone level in serum must remain below 10 nmol/L throughout the period of desired eligibility to compete in the female category. 2.4. Compliance with these conditions may be monitored by testing. In the event of non-compliance, the athlete’s eligibility for female competition will be suspended for 12 months.46 The Commission removed the previous requirement that transgender athletes undergo sexual reassignment surgery, and instead focused entirely on regulating testosterone levels for transgender women during competitions.47 Now, the rule mainly requires that transgender female athletes maintain testosterone levels below those of a typical male.48 The stated purpose for the rule was to make sure transgender female athletes have every opportunity to compete in the Olympic games while still ensuring fairness to cisgender female athletes. 49 However, the current rule does not do enough to ensure that cisgender female athletes are not disadvantaged. The current rule promotes broader participation, but is too narrow in scope to meet its objective of promoting fairness in sport. It ignores significant biological differences between transgender and cisgender female athletes that remain even when testosterone levels are lowered. To make a meaningful comparison between transgender and cisgender female athletes, it is necessary to compare the bodies of male and female athletes and ensure that those differences are adequately considered.50 The
46 Id. 47 Id. (“To require surgical anatomical changes as a pre-condition to participation is not necessary to preserve fair competition and may be inconsistent with developing legislation and notions of human rights.”). 48 CAS 2014/A/3759, Chand v. IAAF, Award of 24 July 2015, ¶ 59 [hereinafter Chand] (“Normal male range Total Testosterone Levels - ≥ 10 nmol/L.”); Marjolaine Viret & Emily Wisnosky, CAS 2014/A/3759, Chand v. AFI & IAAF, Award of 24 July 2015, in YEARBOOK OF INTERNATIONAL SPORTS ARBITRATION 235, 236 (2015) (Antoine Duval & Antonio Rigozzi eds., 2016) (“[A]ndrogen levels are below the ‘normal male range’, which is defined as having total testosterone levels measuring less than 10 nmol/L.”). 49 Sex Reassignment Meeting, supra note 7 (“It is necessary to ensure insofar as possible that trans athletes are not excluded from the opportunity to participate in sporting competition.”). 50 See supra note 5 and accompanying text. 798 CAPITAL UNIVERSITY LAW REVIEW [47:789 current rule does not do this. It fails to address the significant stamina advantages that a transgender female will retain by virtue of originally having been born a man. These advantages occur for reasons unrelated to testosterone levels. For example, male bodies can use oxygen more efficiently due to larger lungs resulting in better cardiovascular fitness.51 The rule also fails to address the anatomical differences in muscle and bone structure, which give transgender female athletes certain strength advantages.52 And it also assumes that hormone therapy will reverse or remove the effects of naturally produced hormones, which is a questionable assumption.53 This article will address each of these concerns in turn. B. Stamina Advantages The IOC’s transgender rule ignores the differences in stamina that exist between transgender and cisgender female athletes. Stamina is the body’s ability to sustain prolonged physical and mental effort through cardiovascular fitness.54 Testosterone levels may have little effect on cardiovascular fitness; thus, the IOC’s rule is inadequate to ensure a level playing field between female transgender and cisgender athletes. Cardiovascular fitness, in simple terms, is the ability of the heart and lungs to get oxygen to the muscles.55 Cardiovascular fitness is measured by measuring the maximum oxygen consumption (“VO2max”) of an 56 individual. VO2max is considered to be the best physiological measure 57 of cardiovascular fitness. A higher VO2max gives an athlete a greater capacity for aerobic energy production and greater stamina.58 There are substantial differences in VO2max between transgender and 59 cisgender female athletes. Female athlete values in VO2max, on average,
51 See infra Section III.B. 52 See infra Section III.C. 53 See infra Sections III.B–C. 54 See Stamina, LEXICO, https://www.lexico.com/en/definition/stamina [https://perma.cc /MS59-83CS]. 55 Patrick Dale, What Does Cardiovascular Fitness Mean?, LIVESTRONG, https://www.l ivestrong.com/article/286610-what-does-cardiovascular-fitness-mean/ [https://perma.cc/4JS B-ZLM6] See also Glossary, OFFICE OF DISEASE PREVENTION & HEALTH PROMOTION, https ://health.gov/paguidelines/2008/glossary.aspx [https://perma.cc/E87S-EVSY] (“A health- related component of physical fitness that relates to ability of the circulatory and respiratory systems to supply oxygen during sustained physical activity.”). 56 Patty Freedson, Cardiovascular Fitness, in WOMEN AND SPORT 169, 170 (1994). 57 Id. 58 Id. 59 Id. at 170–71. 2019] FALLING SHORT 799 are lower than those of their male counterparts regardless of how VO2max 60 is measured. The difference between female and male VO2max is greatly influenced by differences in body composition and size. Three common physiological factors that affect the VO2max difference in genders are body composition (body fat)61, hemoglobin concentration,62 and heart size.63 1. Body Fat Differences in body fat between females and males contribute to the 64 gender difference in VO2max. Body fat accounts for a significant 65 proportion of VO2max and thus performance. While feminizing hormone therapy redistributes body fat,66 the redistribution does not mean there will be a significant affect to the advantages transgender females have. Men retain an aerobic performance advantage over women even when body fat is controlled and when training regiments are the same.67
60 - Id. at 171 (“Females’ VO2max is 56% of male values as expressed as absolute 1∙min 1, 28% of male values expressed relative to body mass (m1∙kg BM∙min-1), and 15% of male values expressed relative to lean body mass (m1∙kg LBM∙min-1) . . . .”). 61 Id. (“Body fat is generally to be metabolically inactive but increases the energy cost, that is, oxygen consumption, of weight bearing exercise.”). 62 Id. (“Hemoglobin is a protein found in red blood cells that carries oxygen from the lungs to the working muscle.”). 63 Id. at 172. 64 Id. at 171. 65 Id. (Freedson cites a study by Sparling and Cureton which reported that percent body fat accounted for 75% of the gender difference in a 12-minute run performance). 66 Dr. Maddie Deutsch, Information on Estrogen Hormone Therapy, UNIV. OF CAL. SAN FRANCISCO, https://transcare.ucsf.edu/article/information-estrogen-hormone-therapy [https:/ /perma.cc/7UE5-GEQA] (“Your body will begin to redistribute your weight. Fat will begin to collect around your hips and thighs and the muscles in your arms and legs will become less defined and have a smoother appearance as the fat just below your skin becomes a bit thicker.”); Cécile A. Unger, Hormone therapy for transgender patients, 5(6) TRANSL. ANDROL. UROL. 877, 879 (2016) (“Hormone therapy for transgender women is intended to feminize patients by changing fat distribution . . . .”). 67 Samuel N. Cheuvront, et al., Running Performance Differences between Men and Women, 35(12) SPORTS MED. 1017, 1020 (2005) (“[E]ven when the contribution of body fat to sex differences in aerobic capacity is controlled and maximal oxygen uptake . . . is expressed relative to lean body mass, men still retain a considerable aerobic performance advantage.”); Michael R. Deschenes et al., Effects of Gender on Physiological Responses during Submaximal Exercise and Recovery, 38(7) MED. & SCIENCE IN SPORTS & EXERCISE 1304, 1308 (2006) (“Studies have revealed that when expressed relative to body mass . . . or even relative to [lean body mass], . . . maximal oxygen uptake in men exceeds that of women when training status is held constant . . . .” ). 800 CAPITAL UNIVERSITY LAW REVIEW [47:789
2. Hemoglobin Concentration The second factor that determines the oxygen transport capacity of the circulatory system is hemoglobin concentration.68 The average hemoglobin concentration in women is approximately 10% lower than that in men, which translates to a 10% lower oxygen transport capacity for women. 69 Again, this is not changed by lower testosterone levels. Higher hemoglobin levels create an advantage for transgender female athletes. 3. Heart Size The third significant difference is in heart size. Research has established that the average woman’s heart size is smaller than a man’s.70 In particular, the size of the male left ventricle is usually larger than a female’s.71 Since heart sizes in women are smaller than their male counter parts, women have lower maximal stroke volume (the largest volume of blood pumped per beat)72 and maximal cardiac output (the amount of blood the heart pumps through the circulatory system in a minute)73. This means that a male heart can hold and pump more blood per beat than a female heart. 74 The ability to pump a larger amount of blood makes it possible to deliver more oxygen and thus produce a larger amount of energy.75 This difference adds to the disparity in VO2max between a males and females. 4. Lung Capacity The differences in lung capacity and size are also ignored by the current rule. The differences in lung development between men and women have an effect on the athlete’s breathing capabilities during
68 Freedson. supra note 56, at 171. 69 Id. at 171–72. 70 Id. 71 Laura Niedziocha, Gender vs. Level of Cardiovascular Fitness, LIVESTRONG https://healthfully.com/546912-gender-vs-level-of-cardiovascular-fitness.html [https://perma.cc/ZA6F-A3MS]; New research offers a formula to determine ‘normal’ heart size, AMERICAN HEART ASSOCIATION NEWS ( Sept. 10, 2013), https://www.heart.org/en/new s/2018/05/01/new-research-offers-a-formula-to-determine-normal-heart-size [https://perma. cc/39JM-KPHL] (“[U]sing a measurement from the left ventricular diameter, men averaged 46 millimeters, while women averaged 41 millimeters for the same measurement.”). 72 Freedson. supra note 56, at 172. 73 Medical Definition of Cardiac Output, MEDICINENET.COM, https://www.medicinenet. com/script/main/art.asp?articlekey=7524 [https://perma.cc/V54G-BRXS]; see also Freedson, supra note 56, at 172. 74 Niedziocha, supra note 71. 75 Id. 2019] FALLING SHORT 801 exercise.76 Women show several characteristics that distinguish their responses to exercise from those of men.77 These factors influence training 78 response and contribute to lower VO2 max in women. The basis for sex differences in pulmonary function and exercise tolerance is primarily attributable to hormones (especially progesterone and estrogen),79 and to structural differences in the lungs.80 The structural differences affect the airway during exercise.81 Women have significantly smaller lung volumes and lower maximal expiratory flow rates compared to men of the same age and height.82 This is because the female lung is smaller and therefore moves less oxygen through the body at a slower rate.83 The differences likely become prevalent after puberty.84 Additionally, female hormones can adversely affect the way the lungs function.85 This occurs often when estrogen and progesterone levels are increased during pregnancy and menstrual cycles.86 This means that during certain periods of a cisgender female athletes life, her hormones make it difficult for her to transport oxygen effectively through her body. Female transgender athletes cannot get pregnant or have menstrual cycles, but they can administer hormones to reach those levels.87
76 Id. 77 MICHAEL S. SAGIV, EXERCISE CARDIOPULMONARY FUNCTION IN CARDIAC PATIENTS 53 (Springer Science & Business Media 2012). 78 Id. 79 Craig A. Harms, Does gender affect pulmonary function and exercise capacity?, 151 RESPIRATORY PHYSIOLOGY & NEUROBIOLOGY 124, 125 (2006) (“Women may be more prone to pulmonary limitations during heavy exercise (and perhaps submaximal intensities) than men due to the influence of the reproductive hormones (estrogen and progesterone) combined with a reduced pulmonary capacity.”); Craig A. Harms & Sara Rosenkranz, Sex Differences in Pulmonary Function during Exercise, 40 MEDICINE AND SCIENCE IN SPORTS AND EXERCISE 664, 667 (2008) (“[W]omen have pulmonary structural differences and hormonal influences that may lead to greater airway hyperresponsiveness, expiratory flow limitation, and gas-exchange disturbances than men . . . .”). 80 Harms, supra note 79, at 125. 81 Harms and Rosenkranz, supra note 79, at 664. 82 Id. 83 Id. 84 Id. 85 Harms, supra note 79, at 124. 86 Id at 125 (“The menstrual cycle can affect pulmonary function during exercise primarily through changes in circulating levels of progesterone and estrogen… Increased estrogen levels tend to increase fluid retention and therefore increase blood volume, which could potentially affect gas exchange in the lung.”) (internal citations omitted). 87 Madeline Deutsch, Overview of feminizing hormone therapy, UNIVERSITY OF CALIFORNIA SAN FRANCISCO, http://transhealth.ucsf.edu/trans?page=guidelines-feminizing- therapy [https://perma.cc/P77U-BLAR]. 802 CAPITAL UNIVERSITY LAW REVIEW [47:789
However, regardless of the amount of hormones a female transgender athlete injects, there is no way to reverse the advantages of their heart and lung sizes. Thus, the current rule permits female transgender athletes to enjoy significant stamina advantages over cisgender female athletes. C. Structural Advantages: Bone and Muscle 1. Muscle Strength and Endurance The IOC’s transgender rule also falls short in ensuring that transgender females do not have a muscular advantage over cisgender females. First, the rule does not account for differences in muscle strength and endurance. Muscle strength is defined as “the ability of a muscle or group of muscles to exert maximum force against a resistance.”88 Muscle endurance is “the ability of a muscle or group of muscles to maintain a submaximal force over an extended period.”89 Transgender female athletes retain many muscular advantages over cisgender females, even after hormone therapy, because transgender females have “a higher ratio of muscle mass to body weight,” which allows them to be faster and stronger.90 This ratio is the main factor for why female speed records are slower than male records.91 2. Muscle Memory Hormone therapy and testosterone limits do reduce muscle mass in transgender females.92 However, enhanced muscle mass can likely be obtained again by transgender females because of skeletal muscle memory.93 A recent study has shown that muscle DNA can be programed through exercise, meaning a muscle’s characteristics can being altered at a
88 Patty Freedson, Muscle Strength and Endurance, in WOMEN AND SPORT 177, 177 (1994). 89 Id. 90 Andrew Latham, Physiological Differences Between Male and Female Athletes, HOUSTON CHRONICLE, http://work.chron.com/physiological-differences-between-male-fema le-athletes-20627.html [https://perma.cc/JC7B-EF46]. 91 Id. (“This explains why female speed records in running and swimming are consistently 10 percent slower than men’s, and why, on average, they have two thirds of the strength of men.”). 92 Deutsch, supra note 66 (“[E]xpect your muscle mass and strength to decrease significantly.”). 93 Adam P. Sharples et al., Does skeletal muscle have an ‘epi’-memory? The role of epigenetics in nutritional programming, metabolic disease, aging and exercise, 15 AGING CELL no.4, at 603, 612 (2016) (“The capacity of skeletal muscle to respond differently to environmental stimuli in an adaptive or maladaptive manner if the stimuli have been previously encountered.”). 2019] FALLING SHORT 803 genetic level.94 The study aimed at observing how muscle grows following exercise, returns back to normal after a period of rest, and then grows again following exercise later in life.95 The researchers examined over “850,000 sites on human DNA and discovered the genes ‘marked’ or ‘unmarked’ with special chemical ‘tags.’”96 The study revealed that after a period of rest the increase in lean mass (i.e., muscle) during the second stage of exercise was even larger than the increases in the first stage, suggesting a person’s muscles remember and benefit from prior training.97 This study is relevant to transgender female athletes because an athlete’s muscle memory may be based on her training done as a male athlete. One researcher suggested that “athletes who use performance enhancing drugs (PEDs) may have a longer lasting benefit from those drugs,” but that theory requires more research.98 If this theory is proven, it
94 Robert A. Seaborne et al., Human Skeletal Muscle Possesses an Epigenetic Memory of Hypertrophy, SCIENTIFIC REPORTS (2018), http://www.nature.com/articles/s41598-018- 20287-3#Sec26 [https://perma.cc/5V7A-9L5X]. 95 Id. [W]e aimed to investigate an epigenetic memory of earlier hypertrophy in adult human skeletal muscle using a within measures design, by . . . [undertaking]: (1) resistance exercise induced muscle growth (loading), followed by; (2) cessation of resistance exercise, to return muscle back towards baseline levels (unloading), and; (3) a subsequent later period of resistance exercise induced muscle hypertrophy (reloading). 96 Keele University, Study proves ‘muscle memory’ exists at a DNA level, SCIENCEDAILY, https://www.sciencedaily.com/releases/2018/01/180130091144.htm [https:/ /perma.cc/9MEM-B9B9]. Known as epigenetic modifications, these “markers” or “tags” tell the gene whether it should be active or inactive, providing instructions to the gene to turn on or off without changing the DNA itself . . . . In this study, we’ve demonstrated the genes in muscle become more untagged with this epigenetic information when it grows following exercise in earlier life, importantly these genes remain untagged even when we lose muscle again, but this untagging helps “switch” the gene on to a greater extent and is associated with greater muscle growth in response to exercise in later life – demonstrating an epigenetic memory of earlier life muscle growth! 97 Seaborne, supra note 94, at 12–13 (“We first confirmed that we were able to elicit an increase in lean mass of the lower limbs after 7 weeks loading, that returned back to baseline levels after 7 weeks unloading, with 7 weeks reloading evoking the largest increase in lean mass.”). 98 Keele, supra note 96. (continued) 804 CAPITAL UNIVERSITY LAW REVIEW [47:789 is plausible that the benefits a male athlete receives from testosterone are embedded in their muscle DNA and may have lasting effects even after a gender transition.99 Like the effects of PEDs, the effects of testosterone on muscle memory will require further research. However, this raises significant questions about the efficacy of the IOC’s current hormone- based approach. 3. Bone Structure The IOC rule fails to address the differences in bone structure between male and female athletes. Male athletes have, on average, longer and larger bones, which provide a mechanical advantage over female athletes.100 Male bones provide transgender females with greater leverage and a wider frame, which can support more muscle.101 This gives male and transgender female athletes advantages in sports that involve throwing, kicking, and hitting.102 It has been argued, however, that recent research reveals that hormone therapy negates a transgender female athlete’s skeletal advantages. For example, one researcher discovered that transgender females have an increased risk of developing osteoporosis.103 And that this increased risk is
If an elite athlete takes performance-enhancing drugs to put on muscle bulk, their muscle may retain a memory of this prior muscle growth. If the athlete is caught and given a ban -- it may be the case that short bans are not adequate, as they may continue to be at an advantage over their competitors because they have taken drugs earlier in life, despite not taking drugs anymore. More research using drugs to build muscle, rather than exercise used in the present study, is required to confirm this. 99 Id. 100 Latham, supra note 90 (“[M]en still display greater absolute strength than women because strength is proportional to skeletal muscle mass, of which men have more.”); Cheuvront, supra note 67, at 1021. 101 Latham, supra note 90. 102 Id. 103 See What is Osteoporosis and What Causes It?, NATIONAL OSTEOPOROSIS FOUNDATION, https://www.nof.org/patients/what-is-osteoporosis/ [https://perma.cc/BQP8- NSGP] (Osteoporosis is a condition where bones become brittle). See also Eva Van Caenegem et al., Low bone mass is prevalent in male-to-female transsexual persons before the start of cross-sex hormonal therapy and gonadectomy, 54 BONE NO.1 92, 95 (2013). [hereinafter Low Bone Mass] (“Transsexual women present . . . a higher percentage of osteoporosis compared with age-matched control men.”); Eva Van Caenegem et.al, Body composition, volumetric and areal bone parameters in male-to-female transsexual persons, 43 BONE NO.6 1016, 1021 (2008) [hereinafter Body Composition] (“[M]ale-to-female transsexuals may be at increased risk for developing osteoporosis . . . .”); Katrien Wierckx (continued) 2019] FALLING SHORT 805 due to transgender females losing bone mass from hormone therapy.104 Arguers also point to studies that have shown that a transgender female’s bone mass is lower than a cisgender male’s even before hormone therapy begins.105 In two such studies, research teams determined that transgender women have smaller bone size and lower bone turnover before hormone therapy. However, researchers found that the lower bone mass in transgender women was due to a lack of physical activity at a young age. The transgender females in the studies were compared to a control group of males solely based on age and height.106 The studies did not include transgender women who were athletes before hormone therapy.107 Thus, the study did not produce any evidence comparing the bone mass of transgender females athletes who were active growing up to the cisgender male control group. Therefore, the generalization that transgender women have lower bone mass even pre-therapy cannot extend to elite female transgender athletes who were likely very physically active growing up. et al., Long-Term Evaluation of Cross-Sex Hormone Treatment in Transsexual Persons, 9 THE JOURNAL OF SEXUAL MEDICINE NO.10 2641, 2649 (2012) (“[A] substantial number of transsexual women suffered from osteoporosis at the lumbar spine and distal arm. . . . [W]e observed a high prevalence of osteoporosis and osteopenia in our group of transsexual women.”). Id. at 2648–49. 104 Guy T’Sjoen et al., Prevalence of Low Bone Mass in Relation to Estrogen Treatment and Body Composition in Male-to-Female Transsexual Persons, 12 JOURNAL OF CLINICAL DENSITOMETRY: ASSESSMENT OF SKELETAL HEALTH NO.3 306, 312 (2009) (“[L]ow bone mass is highly prevalent in the described group of M/F transsexual persons, which appears to be largely determined, in comparison to healthy males, by smaller bone size and a strikingly lower muscle mass. . . . 2–26% of M/F transsexuals were diagnosed with low bone mass.”). Id. at 310, 312. 105 T’Sjoen, supra note 104. 106 Id. 107 Id. at 96. Transsexual women seemed to participate less in sports and physical activity . . . . [T]ranssexual girls (biological boys) avoided competitive physical sports and were less fond of rough and tumble play . . . . [P]hysical activity at young age during growth is mandatory for optimal augmentation of bone mass . . . leading to the peak bone mass in young adulthood . . . . [P]hysical activity has been shown to preserve bone mass and structure and might even reduce the risk of osteoporosis. Male-to-Female transsexual persons present lower muscle mass and strength, higher fat mass, lower trabecular vBMD and aBMD at various sites and smaller cortical bone size as compared to healthy age- and height-matched controls. Both the lower level of sports-related physical . . . . 806 CAPITAL UNIVERSITY LAW REVIEW [47:789
Although hormone therapy may have an effect on bone durability (which will not be addressed in this article), hormone therapy does not change the size or mass of the bones. Thus, an elite transgender female athlete has the same bone structure she had pre-therapy. And because a retained larger bone structure and mass compensates for the loss in muscle mass due to hormones, it allows female transgender athletes to support more muscle than cisgender females.108 D. Men on Average Outperform Women in Athletics The inherent biological advantages that men possess have contributed to a gender gap in athletic performances. This gap has been stable since 1983.109 Historically, the lack of women in sports, and the lack in quality of training women received contributed to the gap; but that is no longer the case.110 Since 1983, men and woman have improved their athletic performance in parallel, which has kept the gap stable, despite improved access to training and coaching for women.111 The gap’s stability is not affected by external non-physiological factors such as technology and doping advancements that could affect it.112 Without any technological improvement specifically dedicated to one gender or the other, performances will probably continue evolve in a similar manner for both men and women.113 For example, present-day sex differences in running performance appear to be of biological origin.114 Men possess greater muscular strength
108 Latham, supra note 90. 109 See Valérie Thibault et al., Women and men in sport performance: The gender gap has not evolved since 1983, 9 JOURNAL OF SPORTS SCIENCE AND MEDICINE NO.2 214, 214 (2010). 110 Id. at 221. The late implication of women in competition, their increasing participation, as well as the individual doping behaviors and state programs for performance enhancement may all have had a historical role but no longer reduce the gap. . . . After 1950, women began to benefit from improvements in training techniques that were developed from the men’s training experience during the first half of the [20]th century. Like men, they also benefited from a better medical and nutritional environment. Id. at 220. 111 Id. at 221. 112 Id. at 220. 113 Id. at 221. 114 Cheuvront, supra note 67, at 1017. 2019] FALLING SHORT 807 and a larger aerobic capacity.115 As a result, the gap in running performance between men and women is unlikely to narrow naturally.116 This gap will also exist after sex reassignment surgery. Although hormone suppression therapy117 or the removal of gonads suppresses some of the advantages conferred by testosterone, neither treatment fully eliminates it.118 It therefore remains conceivable that males re-assigned as females after puberty could retain a significant advantage (i.e., more lean body mass) over athletes born women in events like sprinting and distance running.119
115 Id. 116 Id. 117 Esteva et al., Evolution of Gonadal Axis After Sex Reassignment Surgery in Transsexual Patients in the Spanish Public Health System, 9 INTERNATIONAL JOURNAL OF TRANSGENDERISM NO.2 15, 16 (2006) (“Hormone therapy in transsexual persons during the sex reassignment process (SRP) involves inhibiting their own gonadal hormones and supplying hormones according to the sex with which the patient identifies.”). 118 Cheuvront, supra note 67; Deutsch, supra note 87. The goal of feminizing hormone therapy is the development of female secondary sex characteristics, and suppression/minimization of male secondary sex characteristics. . . . Suppression of testosterone production and blocking of its effects contributes to the suppression/minimization of male secondary sexual characteristics. Unfortunately, many of these characteristics are permanent upon completion of natal puberty and are irreversible.
Id. See also, Overview of feminizing hormone therapy, CLEVELAND CLINIC, https://my.cleve landclinic.org/health/treatments/16202-feminizing-genitoplasty [https://perma.cc/42ET- UTH7] (“Feminizing genitoplasty is a type of surgery that can change the genitals to correct any irregularities at birth or to alter the genitals in sexual reassignment procedures.”). (Following castration during genitoplasty, many patients continue to have high levels of gonadotropins). 119 Cheuvront, supra note 67. See also Esteva, supra note 117, at 20 (“Although the levels of gonadotropins may fall during the preoperative phase because of the treatment given, once these drugs are stopped in the post-gonadectomy phase there is no pharmacologic interference to suppress the levels of Luteinizing hormone (LH).”). See also Luteinizing hormone, ENCYCLOPAEDIA BRITANNICA, https://www.britannica.com/science/lut einizing-hormone [https://perma.cc/E2TH-8BYP]. Luteinizing hormone (LH), also called interstitial-cell stimulating hormone (ICSH), one of two gonadotropic hormones (i.e., hormones concerned with the regulation of the gonads, or sex glands) that is produced by the pituitary gland . . . . In the male, LH stimulates the development of the interstitial cells of the testes, which secrete testosterone, a male sex hormone. 808 CAPITAL UNIVERSITY LAW REVIEW [47:789
E. Non-Olympic Issues Between Transgender and Cisgender Female Athletes The flaws in the current rule will likely contribute to a growing number of conflicts surrounding athletic competition. Although there has not yet been a conflict at the Olympics, there have been disputes in professional sports settings between transgender female athletes and cisgender female athletes that likely presage those that could soon arise in amateur sports. 1. Fallon Fox In 2015, one such controversy occurred in a professional Mixed Martial Arts (MMA) fight involving Fallon Fox. Fallon Fox, a transgender female, is the first openly transgender athlete to compete in MMA.120 Fox fought a cisgender female fighter, Tamikka Brents, and knocked her out in the first round of the fight.121 Brents suffered a concussion, a broken orbital bone, and required several staples in her after the fight.122 In an interview conducted after the fight, Brents said that she believed Fox should not be fighting in the female division.123 This is not the first time someone in the MMA world had an issue with Fox fighting women.124
120 Greg Bishop, A Pioneer Reluctantly, THE NEW YORK TIMES (May 10,2013), www.nytimes.com/2013/05/13/sports/for-transgender-fighter-fallon-fox-there-is-solace-in- the-cage.html [https://perma.cc/9RLS-BMZV]. 121 Dustin Siggins, Transgender ‘female’ MMA fighter gives female opponent concussion, broken eye socket, LIFE SITE (Sep. 19, 2014, 5:42 PM), https://www.lifesitenew s.com/news/transgender-female-boxer-gives-female-opponent-concussion-breaks-her-eye- so [https://perma.cc/7LSV-4JCV]. 122 See WND Exclusive, Female Athletes Crushed By ‘Women Who Were Once Men’, WND (Mar. 26, 2017, 3:14 PM), http://www.wnd.com/2017/03/female-athletes-crushed- by-women-who-were-once-men/ [https://perma.cc/6F88-TFQA]. See also After Being TKO’d by Fallon Fox, Tamikka Brents Says Transgender Fighters in MMA ‘Just Isn’t Fair’, CAGE POTATO, www.cagepotato.com/after-being-tkod-by-fallon-fox-tamikka-brents- says-transgender-fighters-in-mma-just-isnt-fair/ [https://perma.cc/U5ZM-Z8N7]. 123 Cage Potato, supra note 122. Brents said, I’ve fought a lot of women and have never felt the strength that I felt in a fight as I did that night. . . . I’ve never felt so overpowered ever in my life and I am an abnormally strong female in my own right. . . . Her grip was different, I could usually move around in the clinch against other females but couldn’t move at all in Fox’s clinch . . . . I still disagree with Fox fighting . . . . [W]hen it comes to a combat sport I think it just isn’t fair. At least not until we have more scientific proof that it is or isn’t fair . . . . 124 See Kevin Iole, UFC suspends Matt Mitrione for transphobic comments regarding Fallon Fox, YAHOO SPORTS (Apr. 8, 2013, 7:00 PM), https://sports.yahoo.com/blogs/mma- (continued) 2019] FALLING SHORT 809
2. Jillian Beaardman Another controversy hovers around transgender cyclist Jillian Beardman. In 2016, Beardman won the women’s division in the El Tour de Tuscon.125 Suzanne Sonya, who finished third in the race, was troubled by Beardamn’s win.126 She told Cycling Tips, I’ll take her on any day, but that’s just me… but, no, I do not think it’s fair play, and I question her integrity knowing that she’s going into these events knowing that she is going to be stronger . . . [when it comes to racing], it’s problematic to me that she [transitioned] only a couple years ago, and has lived 30 years as a man. Regardless of testosterone levels, she’s got muscle memory and a lung capacity that I could never build up . . . .”127 3. Tiffany Abreu Perhaps the most relevant controversy comes out of Brazil. Tiffany Abreu is a transgender volleyball player who has her eyes set on the 2020 Olympic Games in Tokyo.128 Abreu is following all of the current guidelines set by the IOC for transgender athletes.129 Not everyone is supportive of her decision.130 A rival coach at the same level in club volleyball believes there should be more studies about transgender athlete performance to properly assess the advantages that may exist.131 Ana Paula Henkel, a former Volleyball Olympian and Brazilian national, also believes Abreu should not compete against women because “her body was built with testosterone all life long.”132 cagewriter/ufc-suspends-matt-mitrione-transphobic-comments-regarding-fallon-230051067 --mma.html [https://perma.cc/6GFM-3KKP] (“He had a gender change, not a sex change. He’s still a man. He was a man for 31 years.”). See also Mckinley Noble, UFC’s Joe Rogan to Transgender MMA Fighter Fallon Fox: ‘You’re a F***ing Man’, BLEACHER REPORT (Mar. 19, 2013), http://bleacherreport.com/articles/1573044-ufc-joe-rogan-to- transgender-mma-fighter-fallon-fox-youre-a-man [https://perma.cc/63C6-BYXL]. 125 WND, supra note 122 126 Id. 127 Id. 128 Shasta Darlington, A Star Athlete, Her Eyes on the Olympics and History, Stirs Up Brazil, N.Y. TIMES INTERNATIONAL, at 11 (Mar. 18, 2018). 129 Id. 130 Id. 131 Id. 132 Associated Press, Woman Becomes First Transgender Player in Brazil’s Top Volleyball League, SPORTS ILLUSTRATED, https://www.si.com/more-sports/2017/12/20/trans gender-volleyball-player-tiffany-abreu-brazil [https://perma.cc/9Z4Z-8V7N]. See also, Pete (continued) 810 CAPITAL UNIVERSITY LAW REVIEW [47:789
IV. THE TWO POSSIBLE SOLUTIONS Even with the best intentions of regulating the women’s division for fairness, the current rule is insufficient because it still results in competitive advantages for female transgender athletes, which will inevitably place many cisgender females at a competitive disadvantage. Therefore, the current transgender guidelines are inadequate and should not be applied to transgender athletes. However, the IOC has viable options to fix this situation. It can either (a) develop a new more comprehensive rule to govern transgender athletes, taking into account a host of biological factors; or (b) create a genderless division to accomplish its stated mission of fairly regulating the women’s division. Both options will be discussed below. A. Solution 1: The IOC Develops a New Rule that better addresses the Genetic Differences between Cisgender Women and Transgender Women. Creating a new rule to regulate female transgender athletes that ensures complete fairness would be extremely challenging. First, a new rule would require extensive scientific research and perhaps new discoveries. The IOC and its federations will have to determine and account for a variety of physiological advantages a female transgender athlete could and will have against a cisgender female athlete. While I have touched on advantages in staminal and structural differences, there are many other factors that would need to be studied that are beyond the scope of this article. For example, in order to address fairness concerns, researchers will need to compare durability, flexibility, and reflexes in male and female athletes. After doing detailed male and female comparisons, researchers will need to determine if hormone therapy affects the factors being studied. The IOC may have the resources to conduct these studies, but if not, it should begin to invest in the necessary resources because a solution will surely be needed soon. After researching, if the IOC decides that it wants to create a new rule for transgender athletes, it must heed the standards the Court of Arbitration for Sport (“CAS”) has used in deciding gender regulations. The CAS set its standards in the Chand decision, a case dealing with the International
Blackburn, Transgender volleyball player excelling in Brazil, eyeing 2020 Tokyo Olympics, CBS SPORTS, https://www.cbssports.com/olympics/news/transgender-volleyball-player-exc elling-in-brazil-eyeing-2020-tokyo-olympics/ [https://perma.cc/E8BB-CALH]. 2019] FALLING SHORT 811
Association of Athletics Federation’s (the “IAAF”) Hyperandrogenism133 Regulations.134 To adhere to the court’s standards, the new rule must be non-discriminatory, necessary, and proportionate to “pursue the legitimate objective of regulating eligibility” to compete in the female division, which ensures fairness in athletic competition.135 The IAAF’s Hyperandrogenism Regulations, like the IOC’s transgender regulation, require a female athlete dealing with hyperandrogenism to keep her testosterone levels under the levels typically present in cisgender men.136 In the Chand case, the CAS based its decision on: (1) the scientific validity of the evidence, (2) the discriminatory nature of the regulation, and (3) the proportionality of the regulation.137 1. Scientific Validity When determining the scientific validity of the evidence, the CAS examined the core issues of the proposed regulations.138 This involved experts for both parties arguing the validity of their scientific research.139 One issue from the Chand decision, which will likely be raised in a case dealing with female transgender athletes, is whether testosterone is appropriate as the primary differentiating factor between male and female athletic performance.140 In the Chand decision, the IAAF confirmed its opinion that testosterone was the most suitable factor to distinguish male and female athletes, but also acknowledged that there are other significant biological factors.141 The circumstances of the Chand case can be distinguished from the circumstances contemplate by this article. The focus in Chand was on difference between cisgender female athletes and intersex athletes; our
133 Amanda Oakley, Hyperandrogenism, DERMNET NZ, https://www.dermnetnz.org/top ics/hyperandrogenism [https://perma.cc/SGA7-VVST] (“Hyperandrogenism describes excessive circulating male sex hormone (testosterone) in females and its effects on the body.”). 134 See Chand, supra note 48. 135 See Viret & Wisnosky, supra note 48, at 270. 136 IAAF to introduce eligibility rules for females with hyperandrogenism, IAAF, https://www.iaaf.org/news/iaaf-news/iaaf-to-introduce-eligibility-rules-for-femal-1 [https:// perma.cc/Y3B9-RAXE]. See also Sex Reassignment Meeting, supra note 7. 137 See Viret & Wisnosky, supra note 48, at 251–57. 138 In the Chand decision, “The CAS panel’s discussion surrounding the scientific validity of the Regulations focused on two key questions: (i) whether testosterone enhances performance (via the increase in lean body mass); and (ii) whether there is “a difference between exogenous and endogenous testosterone” in this respect.” Id. at 251. 139 Chand, supra note 48, at ¶¶451–99. 140 Id. at ¶462. 141 Id. at ¶469. 812 CAPITAL UNIVERSITY LAW REVIEW [47:789 focus is on the difference between cisgender and transgender female athletes. Intersex female athletes, like Dutee Chand, are biological women whose body produces more testosterone than most cisgender women.142 However, a female transgender athlete was born male, and benefits from the biological makeup of a man, especially after puberty. This means other factors, like muscle and bone structure should be examined when evaluating any new rule. 2. Validity Step two of the Chand analysis requires the CAS to determine the validity of the new rule. The CAS gains jurisdiction when an athlete, a group of athletes, or an organization challenges the validity of a rule. First, a CAS panel of judges analyzes the discriminatory nature of the regulation to see if it purposefully restricts the participation of an athlete for a non- technical matter.143 For a regulation to be discriminatory yet valid, the CAS has held that the regulation must be “necessary, reasonable, and proportionate.”144 There is little question that a new rule will be discriminatory because it will focus, like the IAAF regulation in Chand, on the physical traits of female transgender athletes and it will be discriminatory against the sex of female transgender athletes.145 The very nature of the regulation discriminates against the physical characteristics of female transgender athletes in order to promote fairness in the female division. The regulation will also discriminate by sex, because it will place restrictions on female transgender athletes while male transgender athletes can compete in the men’s division without restriction.146 For the regulation to be necessary, it must be used to achieve a specific goal.147 The new regulation will be necessary to uphold fairness in sport by limiting the pervasive advantages transgender female athletes have against cisgender female athletes. To be reasonable, the new regulation cannot go beyond what is necessary to uphold fairness in the female division.148 The restrictions must be within the scope of the intended goal.
142 Id. at ¶113. 143 Viret & Wisnosky, supra note 48, at 252. 144 Id. at 253. 145 Chand, supra note 48, at 126; Viret & Wisnosky, supra note 48, at 252–53. 146 Id. at 252–53 See also Sex Reassignment Meeting, supra note 7, at 3. 147 See Chand, supra note 48, at 126. 148 Id. 2019] FALLING SHORT 813
3. Proportionality To establish the proportionality of any new regulation that would revise the current transgender rules, the IOC must follow the CAS’s standard of proportionality that was used to examine the IAAF’s Hyperandrogenism Regulation in the Chand case. The proportionality standard requires “that the detrimental impact of a measure must be proportionate, in that it must not exceed that which is reasonably required in search of the justifiable aim”.149 The IOC would bear the burden of establishing, on the balance of probabilities, that the proposed Transgender Regulations are proportionate means of achieving the legitimate objective of ensuring fairness in athletic competitions.150 This means the IOC would have to show that it is attempting to make the best regulations that both uphold fairness in the women’s division and still allow transgender females to compete in the female division. The regulation must also have a legitimate objective.151 The CAS has previously accepted “providing for fair competition” and “leveling the playing field within the female category” as legitimate objectives.152 Although the IAAF failed the proportionality standard in the Chand decision, that ruling has no bearing on how the court would rule on a transgender case. The main difference is that the Hyperandrogenism Regulation attempted to place restrictions on another cisgender female competing in the female division.153 It should also be noted that the court has also hinted at the use of regulations to separate the genders may be a legitimate objective.154
149 Viret & Wisnosky, supra note 48, at 253. 150 Id. (“[T]he detrimental impact of a measure must be proportionate, in that it must not exceed that which is reasonably required in search of the justifiable aim . . . .”) (“[T]he IAAF bears the burden of establishing on the balance of probabilities that the Hyperandrogenism Regulations are a proportionate means of achieving the legitimate objective of ensuring fairness in athletics competition.”). 151 Id. at 256. 152 Id. 153 Id.; Chand, supra note 48, at 147-48 (“[I]t is being used to introduce a new category of ineligible female athletes within the female category.”). 154 Id. The distinction between male and female is a matter of legal recognition. Nevertheless, as explained above, the Panel is of the view that levels of endogenous testosterone are a key biological indicator of the difference between males and females. However, that is not the use to which endogenous testosterone is being put under the Hyperandrogenism Regulations. It is not being used to determine whether an athlete should compete either as a male or as a female. 814 CAPITAL UNIVERSITY LAW REVIEW [47:789
While it seems that a proposed regulation can theoretically pass the required CAS standards, the likelihood that the proposed rule does not effectively result in a complete bar of transgender females from the female division is low given the complexities of the biological and anatomical differences between transgender females and cisgender females. As explained above, there are biological factors in men that are irreversible, like heart and lung sizes. These factors give transgender females a competitive advantage over cisgender females. More research will likely reveal other irreversible biological factors that give cisgender male athletes advantages over their cisgender female counter parts, thus increasing the possible advantages female transgender athletes will possess. Biological differences will not allow a workable rule to exist. Thus, the fairest approach is to create a third division for transgender athletes to compete in. B. Solution 2: The IOC should Create a Third Division that is Gender Neutral For the IOC to make a new rule would be a messy process. Instead, the IOC should create a third division that considers all of the biological differences between transgender and cisgender female athletes. The premise behind separate divisions in sports is to ensure fair competition for all competing athletes. A helpful precedent for separating sports into divisions comes from Joanna Harper’s Athletic Gender, which discusses how boxing is separated into different weight classes.155 Harper’s example explains that the reason why boxing is separated into weight classes is not simply because an advantage exists, but because the sport considers the magnitude of the advantage between weight classes.156 This example should be kept in mind because we universally allow biological differences to separate same gender athletes into different divisions but we struggle in allowing biological differences to separate athletes across gender.157
155 Joanna Harper, Athletic Gender, 80 L. AND CONTEMP. PROBS. 139, 143 (2017) (“On the other hand, it is not permissible to allow heavyweight boxers to get into the ring with lightweight boxers, since the advantage held by the larger boxer is too great to allow meaningful competition.”). 156 Id. 157 See also id. at 148. To create equitable competition within the women’s category, athletes should be divided into male and female categories by using a performance-based metric. When athletes are divided into separate weight categories for sport we do not ask a given athlete “do you feel like a lightweight or a heavyweight?” Instead, the athlete steps on a scale to determine their weight category. (continued) 2019] FALLING SHORT 815
The IOC should create a mixed-gender division. A mixed-gender division would help the IOC keep up with the rapidly growing belief of gender being a spectrum, while also ensuring fair competition for athletes who want to participate. If it chooses, the IOC can use the current Transgender Regulations to determine who can and cannot compete in the new division. This will allow transgender females to compete without additional regulations. A third division would also give male transgender athletes a choice in divisions, instead of just being thrust into the male division where they would experience biological disadvantages. A third division could also be a safe place for hyperandrogenic athletes to compete without being ridiculed for something their body naturally produces. As an added measure, to be as fair as possible, the IOC can allow transgender females to compete in the female division if the athlete “does not unduly alter the playing field for other women.”158 There is currently no proposal to add a third division to the Olympics, but the upcoming Olympics in Tokyo may effectively start the process to do so. The Tokyo Olympics have added mixed-gender events to the games.159 The mix-gender events will place men and women against each other in competition. The concepts of mixed-gender events and mixed- gender divisions are not inherently different from each other, and if the Olympics want to include everyone in a fair manner, then a mixed-gender division should be given serious consideration. V. CONCLUSION The world’s perception of gender is rapidly changing, and the sports world is struggling to keep pace. The IOC has made a good faith effort in trying to include everyone, but its effort is inadequate to ensure fair competition. The IOC has put itself in a difficult position because it must now balance fairness for its cisgender female competitors against the justice of allowing female transgender athletes to compete in the Olympics.
If women’s sports are valued as creating an arena for women to compete with individuals substantially physically similar to them, then individuals who are athletically male should not be allowed to participate in it. 158 Id. (“If the conditions under which any advantages potentially held by gender-variant athletes are minimized, then this condition can be realized.”). 159 Alex Capstick, Tokyo 2020: Mixed-gender events added to Olympic Games, BBC SPORTS, http://www.bbc.com/sport/olympics/40226990 [https://perma.cc/8J57-W55A] (“The Games will include a 4x400m mixed relay in athletics and a 4x100m medley mixed relay in swimming.”). 816 CAPITAL UNIVERSITY LAW REVIEW [47:789
This article has argued that, in light of current scientific information, allowing female transgender athletes to compete against cisgender female athletes is likely not fair. Transgender female athletes have biological advantages over cisgender females, and without any technological or biological improvements specifically dedicated to cisgender females, the advantages will always exist.160 However, the IOC should not ban transgender athletes from the Olympics because all athletes who abide by the rules of sport should have the privilege of competing at the Olympic games. The IOC should also avoid forcing transgender female athletes to compete in the men’s division. Forcing them back into the men’s division will put transgender females at a competitive disadvantage. The Olympic Charter states that the IOC has a responsibility to “Encourage and support the promotion of women in sport at all levels and in all structures with a view to implementing the principle of equality of men and women,”161 and “[a]ct against any form of discrimination affecting the Olympic Movement.”162 The best available option to ensure it accomplishes both is to create a mixed-gender division. A mixed-gender division protects the female division and promotes gender-fluidity. The new division would give everyone an opportunity to compete regardless of the gender they identify with and will ultimately promote fairness in sport and competition.
160 Thibault, supra note 109, at 214. 161 INT’L OLYMPIC COMM., OLYMPIC CHARTER IN FORCE AS FROM 15 SEPTEMBER 2017, at 16 (2017), https://stillmed.olympic.org/media/Document%20Library/OlympicOrg/Gener al/EN-Olympic-Charter.pdf#_ga=1.48372134.107193644.1486061307 [https://perma.cc/JS 6P-GAKM]. 162 Id.