Does Sex Segregated Sport Still Hold Value?
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INCLUSION Catherine Ordway Senior Consultant [email protected] Snedden Hall & Gallop, Australia Senior Fellow, University of Melbourne, Law School Does sex segregated sport still hold value? The demand that transgender women be accorded their human right to play sport at all levels has challenged thinking in the sports industry. The Australian Football League’s decision to exclude transgender woman Hannah Mouncey from competing in its premier women’s league but allow her to continue to play in the lower, state, leagues appears inconsistent and raises a number of issues. Sports administrators and members of the public are asking: What do we mean by fairness and a ‘level playing field’?; how do we define ‘women’ in women’s sport?; and does binary sex segregation in sport still hold any relevance or benefit in the future? Catherine Ordway, Senior Consultant at Snedden Hall & Gallop and Senior Fellow at the University of Melbourne, addresses those questions in this article. In Australia, the issue which is causing behaviour involves treating people in this based on flawed and inaccurate scientific significant debate in sport circles is how to spirit, regardless of gender. EoC, also hypotheses9. Athletes and commentators embrace diversity and inclusion in sport known as Care Ethics, has developed have claimed that the policy amounts to while protecting existing competitors historically from the feminist tradition of “gender discrimination10” in preventing from perceived ‘unfair advantage1.’ The recognising, and requiring, that we can transgender women, and women with a demand that transgender women be and should respond to marginalised range of hormonal and genetic profiles, accorded their human right to play sport members of the community with care and from playing sport11. The Stockholm has challenged the thinking of sports empathy. Doing the right thing means Consensus was amended in 2015 to administrators, policymakers and cis taking action to make the world a better take into account societal and legal women in the industry. (Cis women, also place for those who have been made recognition of changes to gender sometimes referred to as ‘non-transgender vulnerable or otherwise excluded and/ identity. The IOC’s amended Transgender women’ are women who identify with or marginalised, even beyond our legal Guidelines maintains the flawed being female in alignment with their requirements. In this context, it requires ‘advantage’ biology assumptions based biological sex at birth2.) Transgender sports administrators to provide more on testosterone levels, without taking men (people born biologically female, ‘care’ and resources to people on an into account significant genetic and other and now living and identifying as men), increasing scale to match the needs of variations in the athlete population12. do not appear to cause the same level vulnerable and marginalised people For example, cyclist Kristen Worley is of angst for sports authorities, as their within our community to ensure that not transgender, but has undergone physical prowess is not perceived to be everyone has both equitable access reassignment from a XY male to XY a threat to the male competitors or to the to the benefits of sport, and an equal female. She succeeded after 16 years ‘fairness’ of the competition. To analyse opportunity to earn a living from those to win her right to play when the Human this contradictory approach, this article activities if they have the ability to do so. Rights Tribunal of Ontario found that the asks: What do we mean by fairness and International Cycling Union rules (based a ‘level playing field’? which leads to What do we mean by fairness on the IOC policy) were discriminatory13. answering: how do we define ‘women’ in and a ‘level playing field’? Worley equated the gender testing she women’s sport?, and considering whether The UNESCO International Charter of underwent during her athletic career to binary sex segregation in sport still holds Physical Education and Sport states that: sexual assault consistent with complaints any relevance or benefit in the future? ‘[A]ccess to physical education and sport arising out of the #MeToo movement14. should […] be assured and guaranteed Background for all human beings6.’ The International A transgender person is defined by Women have overcome centuries of Olympic Committee’s (‘IOC’) Olympic UNAIDS as a person who: “has a gender sexism to now be permitted to participate Charter also sets out, as one of the identity that is diferent from his or her in sport within a strict binary sex fundamental principles of the Olympic sex at birth. Transgender people may segregated system. People identifying Movement, that: ‘The practice of sport be male to female (female appearance) with, or being ‘outed’ by sports authorities is a human right. Every individual must or female to male (male appearance). as having anything other than the have the possibility of practising sport, It is preferable to describe them as ‘standard’ genetic and hormonal profiles3, without discrimination of any kind and ‘he’ or ‘she’ according to their gender are being marginalised and excluded. A in the Olympic spirit, which requires identity, i.e. the gender that they are solution to this debate is proposed here mutual understanding with a spirit of presenting, not their sex at birth15.” using an Ethics of Care (‘EoC’) approach4. friendship, solidarity and fair play7.’ The starting point for this approach is To achieve the aims of the UNESCO the conviction that all human beings are The IOC’s 2003 policy (known as the and IOC Charters, the starting position born free and equal in dignity and rights, Stockholm Consensus8) recognising from an EoC perspective must be that as stated in Article 1 of the Universal athletes after sex reassignment surgery transgender women be included, unless Declaration of Human Rights5. Ethical has been heavily criticised for being it can be established that there is an 16 WORLD SPORTS ADVOCATE evidence-based unfairness warranting that football leagues, where the players can be provided by the 2017 AFL men’s they be excluded. To allow for women’s expected to be physically weaker and less premiership winning club are instructive28. sport to be as inclusive as possible, it is experienced, negates the unfair advantage The senior Richmond Football Club clear that comprehensive and transparent and risk of physical harm arguments. players have an almost 30cm diference transgender policies are needed. These between the shortest to the tallest in policies must be based on science. In line Mouncey is being given a right to the 40-man squad (from 175-204cm). By with the human right to sports participation, play, but not at the elite level. The UN weight the diference between lightest the Australian Federal Government’s sport Convention states that discrimination (71kg), to heaviest (106kg) is 35kg. The policy and funding arm, the Australian ‘of any kind’ is unacceptable24, and so it AFLW does not provide statistics on its Sports Commission (‘ASC’), is currently follows that an EoC approach requires players, but a similar diversity exists within undergoing a consultation to ensure that that Mouncey not be denied access to the Australian women’s rugby union team: their guidelines are developed to allow the elite level in any sport, where she with spans of 25cm between tallest and transgender women to play sport, including has the sporting ability. Mouncey has a shortest and 44kg between heaviest at the elite level. The ASC guidelines right to earn a living and where she is and lightest29. Even taking into account should be released in August 2018. denied access to the professional league, that these are results for a national team but permitted to play in the amateur of only 28 players, which includes both Hannah Mouncey league, this also amounts to economic Super W and 7’s representatives, the Hannah Mouncey is a transgender woman discrimination. It seems unlikely that heaviest Wallaroo weighs more than who wants to play in the Australian transgender women would make the the heaviest Richmond men’s player. To Football League (‘AFL’) Women’s prodigious decision to undergo the imagine that cis women in the Australian Competition (the ‘AFLW’). The AFL has medical, social and legal transformation national teams, would be excluded from been basking in the glow of the success for reasons relating to potential economic playing in the AFLW on the grounds of of its recently introduced premier women’s benefits. Despite the considerable an unfair advantage is incongruent. competition16, promotes its support for gains recently experienced by female social issues including gay pride17, and athletes in professional team sport, the There is no evidence in the public claims a: “strong commitment to equality monetary compensation ofered to AFLW domain that the AFL has measured and inclusion at all levels of the game18.” players, as compared with their AFL Mouncey’s strength or stamina, and the On this basis, it would be expected that ‘brothers,’ remains pitiful25, and it cannot AFL has not indicated that the other the AFL take an inclusion-based EoC be imagined that it would lead to the AFLW players have been measured approach to a person who finds herself opening of the proverbial ‘floodgates’! against any of the criteria relied on to in a highly marginalised class of people. exclude Mouncey. Mouncey’s coach However, the AFL appears to have How do we define ‘women’ in the local Canberra competition resorted to conservative risk minimisation in women’s sport? notes that while Mouncey’s hand-eye to exclude Mouncey. After the AFL finally The AFL does not have a transgender skills are good, she does not have the announced, on the day before the AFLW policy. The AFL is, in efect, the endurance, speed, or strength of some Draft in October 201719, that Mouncey international federation for the sport, of the other players, and, as she is still would be ineligible to be selected for and not being on the Olympic program learning the game, is improving her teams in the 2018 AFLW, commentators does not have to comply with the IOC kicking accuracy30.