lawyers in India

Transgender Participation and Discrimination in the Sports field

Written by: Medha Srivastava & Archi Agnihotri - Third Year Students of National Law Institute University, Bhopal
Disability laws in India
Legal Service India.com
  • Transsexuals in Sport

    Sex testing was first introduced at the European Athletics Championships in 1966 in response to some allegations that some female athletes were actually male. In response to this, the IOC (Indian Olympic Committee) became the first sporting organization to establish a medical commission. This policy of gender testing continued until 2000, when it was widely criticized as discriminatory and intrusive. It was looked upon as a violation of the right to privacy. The targets for this testing were invariably women, who were made to undergo visual testing, as well as testing of their DNA and bodily fluids.

    There have, in fact, been very few studies on the issue of how gender change affects performance. In 1967 the IAAF (International Association of Athletics Federations) introduced the sex chromatin test at the European Athletics Cup in Kiev. At this point of time, the gender testing was no longer limited to men posing as women but women with chromosomal abnormalities; which meant that externally, they appeared to be women but their genetic make up claimed otherwise.

    The main issue is that there is a fear that men masquerading as women would gain an unfair competitive advantage in sports; and ultimately invade and dominate the area of women's sports, especially athletics. However, what is to be understood here is that one is not to confuse the issue of transgendered and inter-sexed athletes and the various problems faced by them with the completely different issue of gender-fraud. It cannot, however, be denied that there is a very fine line between an individual wanting to change his or her gender for genuine reasons and one doing the same to gain an unfair competitive advantage. The difference may be difficult to gauge; and must be inferred from circumstantial evidence. What is to be noted further is that this task is by no means easy because here, other factors assume importance and it becomes impossible to view the case in isolation. The media, with no exceptions as to country or sport, jumps at any opportunity to report a controversy in the sports arena. An excellent example of this would be the case of Shanti Soundarajan.

    Shanti Soundarajan, an Indian runner who won a silver medal in the women's 800 meters at the Asian Games failed a gender test at the Doha Olympics, was stripped of the medal. It was said that she did not possess the sexual characteristics of a woman. While such sex tests are not compulsory for competitors, the International Association of Athletics Federations can request that contenders take such tests at any time, and include intensive evaluation by a gynecologist, an endocrinologist, a psychologist, and an internal medicine specialist. Neither the Olympic Council of Asia nor the Athletics Federation of India has released any kind of official declaration about what sort of test Soundarajan failed. Shanti had what is called the Androgen Insensitivity Syndrome. This indicates the presence of one Y chromosome. Those affected by this condition as resistant to androgenic hormones and therefore cannot benefit from doping of such hormones.

    Another such example of this aberration was Stella Walsh, born Stanislawa Walasiewicz in Poland. Ms. Walsh was the 100-meters gold medalist at the Los Angeles Olympic Games in 1932, as well as the first woman under 12 seconds for the distance. She was killed in a robbery. The autopsy revealed that she has XY chromosomal makeup (indicating that she was female) but her genitalia were ambiguous. Specifically, she did not have female sexual organs. Such individuals are born with external female genitalia but are not able to menstruate or conceive. However, such individuals tend to grow tall and lean, and have the musculature of a male. In Walsh's case, this endowed her with elite-level athleticism.

    What is saddening is that the Olympics Council of Asia did not obtain all the necessary laboratory reports which proved their case against Shanti for taking away her medal as she was competing by unfair means. This shows a lack of responsibility on the part of the concerned authorities to gain all the requisite information before they have before making such a crucial decision; one which, in this case, stripped an athlete of a medal that she rightfully won.

    Athletes whose gender identity or expression do not match their birth sex must be allowed to participate on teams on the basis of their birth sex as long as they are not taking hormones or undergoing sex assignment surgery. If these athletes choose to compete in their preferred gender though, fair competition issues may arise and must be addressed.

    Many medical experts have dismissed these gender tests as immoral and unscientific. They are of the belief that there is no sure-shot test of determining ones gender. Questioning an individual's gender can have serious repercussions as regards the right to privacy. When Soundarajan was stripped of her silver medal when a doctor observed her during a urine test for doping, it was said that the condition which affected her did not give her an unfair competitive advantage because of the increased level of testosterone in her body; because it is a genetic defect which does not lead to the production of testosterone.

    Gender testing can be done only on females and not males- a violation of equality?

    The Gender Testing carried out in the Olympic Games at Mexico City in 1968 was justified on the basis that it was done in order to prevent female athletes competing in the Games from those women, who, by virtue of the chromosomal abnormalities had the anatomical advantages of being male. The "gender parade" was one of the practices the IOC Medical Commission utilized until 2000, at international games or Olympics, in which women athletes had to parade naked in front of IOC Medical Commission members, assuring all females possessed the sexual characteristics of a woman. Shanti is yet another victim among dozens of women who have been turned away from elite sporting events because of chromosomal variations. Many women and men are unaware of the fact that they are inter-sexed or otherwise have "assumed abnormal" chromosomal make-up, unless they encounter developmental problems, are tested when considering to conceive a child (in the case of difficult conception), or, as only women do, learn publicly at an elite sporting event, such as the Asian games or Olympics. Men, interestingly, are spared this indignity.

    In 2000, the IOC discontinued this policy of Gender Testing because medical experts could not reach an agreement on what determines a female to be genetically, a female. In response to pressure regarding what had occurred at the 2000 Olympics, the IOC decided to allow transsexuals to participate in the Olympics. However, the IOC reserves the right to examine individual athletes if it is suspicious as to the gender of that particular athlete. While the IOC reserves this right, the creation of a specific laboratory implies a more extensive use of testing than a re-application of testing in regard to suspected individuals.
    Against the backdrop of the suspicious attitude that had been adopted towards all foreigners in the Games at Beijing, the trend of testing suspected female athletes began. The laboratory set up for this purpose is similar to the ones in Atlanta and Sydney. The lab carried out the testing of female athletes through blood, chromosome and gene tests. The difference, as officials claimed, was to test not all the female athletes but only the suspect athletes.

    Recognition of Transgendered Athletes

    In 2004, the IOC recognized the status of transgender athletes. However, this was a very controversial development as many claimed that this step did not do anything useful so far as the participation of transgendered athletes goes. Kristen Worley, a world-class cyclist and water skier, launched a campaign to get Soundarajan's medal returned. She felt that a gross injustice had been done to the athlete and was determined that the unfortunate incident which happened to the athlete was not repeated. Worley gave a presentation at the Canadian Academy of Sport Medicine's annual symposium and Green and Worley penned an influential paper for the World Anti-Doping Agency, addressing the anti-doping code's therapeutic exemptions and the use of therapeutic testosterone. Unlike other female athletes, transitioned women have no testosterone and must receive testosterone therapy to bring their levels up to those of other women their age.
    In 2007, the IOC adopted a Consensus Statement on Sexual Harassment and Abuse in Sport. In this press release of this statement , the problem of sexual harassment is defined and what can be construed as sexual harassment is clearly laid out.

    The document classifies homophobia as a form of sexual harassment and says that:
    Homophobia is a form of prejudice and discrimination ranging from passive resentment to active victimisation of lesbian, gay, bisexual and transgendered people.

    The policy statement gives certain guidelines as to the prevention of such derogatory practices. There has been an explicit mention of the promotion and support of scientific research on these issues.

    What happens when gender testing and transsexualism collide?

    In the case of Richard vs. United States Tennis Association , it was held by the New York trial court that the test that she was subjected to was, in fact, as she had suspected was to prevent her from participating in the games. The issue before the state court was whether a male who had had sex reassignment to surgery could qualify to participate in a women's tennis tournament. Plaintiff Renee Richard alleged that she had been "prevented from qualifying and/or participating in the United States Open as a woman in the women's division since defendants require that she take a sexchromatin test …to determine whether she is a female." As a result of the surgery, Richards said "for all intents and purposes, I became a female- psychologically, socially and physically, as has been attested to by my doctors." Richards said she "underwent this operation after many years of being a transsexual, a woman trapped inside the body of a man." This was because the authorities were sure that she would fail the test. The court ultimately granted Richard's request for a preliminary injunction because the restriction on her participation was a violation of the State's Human Rights Laws.

    The reason why most transsexuals prefer to keep their changed gender identity private is because they feel that once it is revealed that they have changed their sex, it will automatically be assumed that they have an unfair competitive advantage. In the case of the Androgen Insensitivity Syndrome, it is pertinent to note that, as mentioned before, the affected individual does not gain an unfair competitive advantage. At the Atlanta Olympics in 1996, a few AIS athletes were allowed to compete alongside the women. Added to this is the never-ending problem that such individuals have to face; because much as we may like to believe that we are an open-minded and forward-thinking society, the cold and hard fact remains that a gender-change operation is not accepted fully by mainstream society and the individuals who have undergone the same are still faced with discrimination owing to the fact that they are viewed as abnormal.

    The Latest Developments
    In the latest news, the world of athletics was hit by yet another controversy when eighteen-year old Caster Semenya was asked to undergo a gender verification test to prove that she was a woman. This eighteen-year old, who had never before competed outside of Africa, aroused suspicions when she posted the fastest 800m time this year; winning her a Gold at the African Junior Championships. Nick Davies, a spokesman for the International Association of Athletics Federations (IAAF), said that following her performance at the previous athletic championships, the gossip around her had started to build up. Further, another statement made by Davies again brought into light the potential controversy that could be created in cases of gender fraud and the ambiguity in determining the same. "If there's a problem and it turns out that there's been a fraud, that someone has changed sex, then obviously it would be much easier to strip results. However, if it's a natural thing and the athlete has always thought she's a woman or been a woman, it's not exactly cheating."

    To add further to this controversy, ASA (Athletics South Africa) Coach Wilfred Daniels claimed that when Semenya was tested at Pretoria before flying to Berlin, she was told that she was being drug-tested and not gender tested. In fact, in reaction to this the ASA has plastered a picture of her on the cover page of a gossip magazine in a glamorous dress with the caption Look at Caster now! It is evident that she not only has the position of an athlete who unfortunately has to deal with some amount of degrading public exposure, but also the position of a political figure owing to the magnification of the controversy surrounding her.

    Conclusion
    When it comes to Gender Testing, the policy of the IOC had to be rethought and was criticized because it involved only testing women to ascertain their gender. Tests for doping are not violative of this because they place men and women at an equal footing. Both the sexes are expected to undergo the tests to check for drugs. When women are subjected to physical scrutiny to ensure that they have the requisite sexual characteristics, it can be construed as a violation of their right to privacy. However, at this juncture, it is questionable whether an outright refusal to have one's gender tested is an indication of the fact that one is guilty of playing dirty and changing their gender to gain an unfair advantage. However, what this unfair advantage is also to be viewed from both sides. It is said that athletes undergo female to male transition in order to gain the advantage of having more physical power and stamina by virtue of the increased testosterone levels in their bodies. However, is it also not possible that one undergoes the transition from male to female; taking into account the belief that women's sports are less competitive and an athlete who is already experienced gains a competitive advantage in this way?

    In the context of this debate, what becomes relevant is a perusal of Article 14 of the Indian Constitution. The right to equality is one of the most sacrosanct rights enshrined in the Constitution. This right is the root of certain ideals of our democracy like secularism and becomes the basis of the State's effort to provide social security and a secure life to every citizen. Is it then not justified to exercise this right in respect of individuals who decide to change their gender in the area of sports?

    The IOC, after long consideration of medical issues, ruled that as long as an athlete's gender is legally recognized and he or she has completed at least two years of post-op hormone therapy, she or he could legally compete in the games. Nobody wanted an encore of the Soundarajan controversy, but the events of late involving African athlete Caster Semenya are testimony to the fact that many loopholes and ambiguities plague the area of gender testing and transgender participation. The IOC standard subsequently has run down the chain to other sports governing bodies, but there is still a lot of discrimination and controversy surrounding transgender participation in sports.

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    Other Reports
    World in Motion: Caster Semenya photoshoot brings sex back to top of agenda, September 8th 2009 available at http://www.timesonline.co.uk/tol/sport/columnists/owen_slot/article6825732.ece
    Ted Friedmann, Chairman, Potential for Genetic Enhancements in Sports, Address at the Fifth Meeting of the Recombinant DNA Advisory Committee (July 11, 2002), available at www.bioethics.gov/transcripts/jul02/session4.html

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