Examining the legal rights of transsexual people to participate in professional sports both in the UK and internationally

Last week I wrote a post on the legal rights of transsexuals in the UK following the tragic passing of teacher, Lucy Meadows. The response to the post was fantastic and I am very much appreciative of everyone who took the time to read, retweet, share, like and comment on the post. When I finished the post I started to think about what sort of barriers transsexual people face in the world of sport. El Capitan, who I have followed on twitter for some time now (do give him a follow) brought to my attention the case of Fallon Fox, an American mixed martial artist (MMA) and notably the first known transgendered athlete in the MMA.

In 2006 Fox travelled to Bangkok and underwent gender reassignment from male to female, including breast augmentation and hair transplant surgeries. Following her first two successful fights Fox came out publically as transsexual on March 5th 2013 in interviews with OutSports and Sportsillustrated. Controversy swelled over confusion with the California State Athletic Commission (CSAC) and Florida’s athletic commission over Fox’s license to fight. Due to the controversy and the licensing procedure CFA co-founder Jorge De La Noval, who promoted Fallon’s previous fights stated that his organization will not “turn our backs on her… As long as she’s licensed, she’s always welcome in our promotion. We stand behind her and we give her all of our support.” However at present she is not able to fight.

 

After publications shed light on the licensing procedure and Fox’s admission many commentators brought up the issue of whether a person born as a male should be able to fight in women’s divisions of the MMA. Here you can see commentator Joe Rogan who came out strongly opposed to Fox receiving licensing on his podcast The Joe Rogan Experience. Rogan’s comments come across as deeply offensive being homophobic, sexist and misogynistic all at the same time. He also tries to argue, as many do on the subject, that MMA and other sports such as football are gender affected sports whereby the physical strength, stamina and/or physique of an average person of one gender puts them at an advantage or a disadvantage to an average person of the other gender as competitors.

However, in response to those arguments perhaps it is wise to remember that in the 1936 Olympic Games in Berlin, Jesse Owens, who won four track gold medals, faced German taunts that his African heritage somehow provided an innate athletic advantage and that black people should subsequently be banned from competing in future games. Even wrestling legend Hulk Hogan says that Fox is welcome in HIS ring any day – even though the idea seems to confuse him just a little. Although admittedly his motivation for inclusion would likely appear to be more financially motivated than one of advancing equality.

There have been several high-profile instances of transsexual sports persons finding it hard to compete in their chosen discipline. In 2010 Lana Lawless, who had gender reassignment surgery in 2005, won the Women’s Long Drivers of America competition in 2008 when she hit a ball more than 250 yards. Lana is considered so good, in fact, that the LDA changed the rules in 2011 to prevent her from competing again. Likewise, so did the LPGA who have a requirement in their bylaws stating that participants must be “female-born”. In every way that society legally, socially or physically defines gender, Lana is female, but not according to the LDA or the LPGA rules. Lana filed a federal law suit against the LPGA and LDA claiming that their rules were discriminatory. The law suit was only dropped when the LPGA and LDA released a joint statement with Lana Lawless in May 2011 in which they confirmed that:

“The Ladies Professional Golf Association (“LPGA”) expresses its appreciation to Lana Lawless for raising the issue of transgender participation in its tournaments and other professional activities. Both Ms. Lawless and the LPGA are pleased that the litigation initiated by Ms. Lawless has been resolved in a satisfactory way, and applaud the LPGA members who voted overwhelmingly to remove the “female at birth” provision from its by-laws.”

 

And of course who can forget the events in August 2009 when South African athlete Caster Semenya won the gold medal in the 800-meter event of the World Track and Field Championships only to then face weeks of humiliating psychological, gynecological and physical testing to prove that she was in fact female. The shock and outraged exhibited in the tabloid press that a man may have run in a women’s event! Although it should of course be pointed out that Caster Semenya’s case was somewhat different than most.

 

Arguably the most high-profile example of transsexuality in football came about in June 2005 when Martine Delaney, formerly Martin Delaney, was allowed to compete in Soccer Tasmanian’s women’s league. Delaney, played regularly for Claremont United and was encouraged to continue to play by her team-mates, while other players in the league were concerned about her excellent form after she scored six goals for her club. Questions were raised about her right to play in the league and complained to the Football Association of Tasmania.

However, both Soccer Tasmanian and the Football Federation of Australia confirmed that Delaney was entitled to play in the league as, according to a ruling made by the International Olympic Committee in May 2004, she is classed as a female and banning her would contradict their anti-discriminatory rules. In October 2003 an IOC committee convened in Stockholm, Sweden, to discuss the inclusion of transgender athletes at the following Olympics. On May 17, 2004, the IOC adopted the group’s recommended policy, known as the Stockholm Consensus, opening the door for transgender athletes to compete in the then upcoming Athens Olympic Games.

The Stockholm Consensus has three main requirements for transsexual athletes and is widely used by most international sporting bodies:

  • They must have had gender reassignment surgery
  • They must have legal recognition of their assigned gender
  • They must have at least two years of hormone therapy

So what about the rules in the UK? Transsexual and transgender people are protected by UK legislation against discrimination and have the ability to obtain legal recognition of their acquired gender. In the UK, this involves the right to obtain a Gender Recognition Certificate pursuant to the Gender Recognition Act 2004. However, despite the anti-discriminatory rules the requirement for transsexual and transgender footballers to meet set criteria is commonplace internationally as the above Stockholm Consensus shows.

The Football Association Policy on Transgender and Transsexual People in Football is heavily influenced by the rulings made by the IOC. The FA’s governance page on their website talks about how ‘an individual’s sexual orientation or gender identity should never be a barrier to participating in, and enjoying, our national sport,‘ and how, ‘the FA is uniquely placed to tackle unacceptable and discriminatory behaviour in football. Why? Because as the guardian of the game in this country, The FA will continue to work tirelessly to ensure the game exists for EVERYONE.’ Truly noble statements indeed assuming that they actually work.

It is worth reviewing the The FA Action Plan for including lesbian, gay, bisexual and trans (LGB&T) people in football 2012-2016. However, the Kick It Out campaign believes that while the FA’s policy was probably introduced with good intentions and to prevent footballers lying about their gender and thereby ensuring that the game was played fairly, there may be legitimate concerns that the policy could be discriminatory.

There is, and quite rightly so, a huge emphasis on the issues of racism and homophobia and the inclusion of gay and lesbian players in football, but it does appear that there is little for transsexual players to take heart from. Indeed actually finding the FA’s rules on this took me some time. Male-to-female and female-to-male transsexuals who underwent gender re-assignment surgery before puberty are automatically regarded as their acquired gender under FA rules. However, it is far more complex an issue if the change occurred after puberty. A player would then only be eligible to play as their acquired gender if surgical anatomical change has been in effect for two years and if hormonal therapy has been administrated. They must also prove that the Gender Recognition Panel recognises their acquired gender.

In contrast, the Scottish FA’s policy on transgender and transsexual players was very easy to find and straight forward as it is on its website although is much the same as the FA’s. Pursuant to paragraph 2 of the policy, any male-to-female transsexual who underwent sex reassignment surgery before puberty will be accepted for the purpose of eligibility to participate in association football as female. This also applies to individuals who have undergone female-to-male reassignment before puberty, who will be regarded as male.

But what of sex reassignment surgery after puberty? Well pursuant to Article 81 of the Articles of Association of the Scottish FA, individuals undergoing gender reassignment after puberty may be eligible for participation in association football in their acquired gender PROVIDED THAT such individuals have satisfied the requirements of this policy. The individual will be asked to permit their GP and/or Consultant and the Gender Recognition Panel to disclose sufficient information to the Scottish FA (including such other information, records or other material as the Scottish FA may require from time to time) to allow it to determine that the following conditions have been met:

(a)  surgical anatomical changes, including genitalia changes, have been completed two years prior to the application;

(b)  legal recognition of the acquired gender has been conferred by the Gender Recognition Panel; and

(c)  hormonal therapy has been administered in a verifiable manner and for a sufficient length of time to minimise gender-related advantages in football matches.

So under these policies there is a heavy requirement that a person must have extensive surgery to be allowed to partake in the sport of their choosing. The cost for this sort of surgery is quite expensive and reduces the accessibility of transsexual footballers playing in their acquired gender. Associations like the FA could therefore accused of denying some the chance of playing in a particular league, even if they had the required hormonal treatment. Furthermore, even if an individual has the surgery they must have had it for two years prior to even beginning the application process and as we all know, a footballers career is not exactly a long one.

Under the Gender Recognition Act disclosure of the fact that someone has applied for a certificate or disclosure of someone’s gender prior to the acquisition of it constitutes a criminal offence liable to a fine. There is no requirement that an individual sportsperson must disclose such information to anyone outside those that must know about it, and technically that is a very small number of people. As sad as it is to say, perhaps that is for the best. One can only imagine the abuse that would be showered upon them from both on and off the pitch and the headline puns in the tabloid press. It is hard enough for an openly gay footballer to come out in the 21st century let alone someone who is transgendered.

Of course hypothetically speaking there is the possibility that transsexual players are already participating in sport at the highest levels and that fans are completely unaware of this. Personally speaking this does not bother me in the slightest. The only important thing, as I see it, is that an athlete, regardless of the gender that they were born with, gives their all in their individual performance and represent themselves, their team or their club to the very best of their ability. An X or a Y chromosome is not what is important. Inclusion is.

Disclaimer: The views expressed are those of the writer and this article does not constitute legal advice.

Further Reading & Resources

Kick It Out

The Justin Campaign

Pride Sports

GFSN

Stonewall

Stonewall FC

Transexuall & Transgender Polices in Sport

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