The question of under what conditions transsexuals should be allowed to participate in professional sports in their acquired gender is becoming increasingly relevant given the recent case of Caster Semenya and Fallon Fox. The number of transsexuals is adjudged to be increasing and partly because many countries now provide mechanisms for achieving legal recognition as belonging to the new gender of an individual. This article will highlight some historical cases involving transsexual athletes and examine how sports bodies have tried to handled this complex and sensitive issue.
UK and European law
In 2002 Christine Goodwin and another woman referred to as “I” took the UK to the European Court of Human Rights in the two landmark cases of Christine Goodwin v UK2 and I. v. UK3. Christine and “I” complained about the lack of legal recognition in the UK of their post-operative sex and about the legal status of transsexuals in the UK following the then leading case of Corbett v Corbett4. They complained, in particular, about their treatment in relation to employment, social security and pensions and an inability to marry. They relied upon Articles 8, 12, 13 and 145 of the European Convention on Human Rights in their separate applications to the court in Strasbourg.
The judgment delivered in the Strasbourg court unanimously held that the UK’s failure to recognise Christine’s and “I”s new identity in law breached their rights to respect for privacy and their right to marry under the European Convention on Human Rights. As a result of these two important cases the Gender Recognition Act 2004 was brought into force in the UK giving legal recognition to transsexual people in their acquired gender. Under the law if an application to the Gender Recognition Panel is successful, the transsexual person’s gender becomes for all purposes their acquired gender and they receive a full gender recognition certificate. This certificate allows for the creation of a modified birth certificate reflecting the holder’s new gender. In specified circumstances the Act prohibits disclosure of the fact that someone has applied for a certificate or disclosure of someone’s gender prior to the acquisition of it. Such disclosure constitutes a criminal offence liable to a fine under section 22 (8) of the Gender Recognition Act 2004.
Transsexual athletes in professional sport
There have been several high-profile instances of transsexual athletes finding it hard to compete in their chosen sporting discipline. The most recent case to hit the headlines is that of Fallon Fox, an American mixed martial artist (MMA) and notably the first known transgendered athlete in the MMA. In 2006 Fox underwent gender reassignment from male to female, including breast augmentation and hair transplant surgeries prior to beginning her career in MMA. Following her first two successful fights Fox came out publicly as transsexual in March 2013 in interviews with Out Sports and Sports Illustrated. 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 organisation 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 still not able to fight.
Lana Lawless, who had gender reassignment surgery in 2005, won the Women’s Long Drivers of America (LDA) competition in 2008 when she hit a golf ball more than 250 yards. In 2010 the LDA changed the rules to prevent her from competing in the competition again. Likewise, so did the Ladies Professional Golf Association (LPGA) who had a requirement in their bylaws stating that participants must be “female-born”. Lana is legally recognised as female, but not according to the LDA or the LPGA rules.6 Lana went on to file a US federal lawsuit against the LPGA and LDA arguing that its requirement that competitors be “female at birth” violated California civil rights law and 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.”
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 several opponents complained to the Football Association of Tasmania.7 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 (IOC) in May 2004, she is classed as a female and banning her would contradict their anti-discriminatory rules.
The Stockholm Consensus
In October 2003 an ad-hoc committee8 convened by the IOC Medical Commission convened in Stockholm, Sweden, to discuss the inclusion of transgender athletes at the following Olympics. On May 17, 2004, the IOC adopted the committee’s report, known as the Stockholm Consensus. This report opened the door for transgendered athletes to compete in the then upcoming Athens Olympic Games. The Stockholm Consensus has three main requirements for transsexual athletes to be recognised in their acquired gender 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 by the appropriate official authorities
- They must have at least two years of hormone therapy
These recommendations are now binding on any transsexual athlete that wishes to take part in a sporting activity governed by the IOC and have also been adopted by other sport governing bodies.
In England, the Football Association’s (FA) Policy on Transgender and Transsexual People in Football9 is heavily influenced by the decisions 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’
In the UK 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 pursuant to the Gender Recognition Act 2004.
Transsexual people must be clearly differentiated from intersex people who are born with sexual or reproductive organs of both sexes. As the biological sex of an intersex person is ambiguous at birth, the sex of the child is often selected by the physicians and family.10 But what happens when later in life the child’s body develops in such a way that they identify with the opposite sex than the one chosen for them? The leading case in this area was W v W (Nullity),11 where Charles J held that if a person was born with ambiguous genitalia the individual’s sex was to be determined by considering certain biological markers.
These biological markers include:
- chromosomal factors;
- gonadal factors;
- genital factors;
- psychological factors;
- hormonal factors; and finally
- secondary sexual characteristics such as the distribution of hair and breast development.
The most well-known example of the testing of biological markers in sport occurred 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 face weeks of humiliating psychological, gynaecological and physical testing to prove that she was in fact female.
The IOC adopted its first set of gender tests in the 1960s, with “nude parades” where female athletes were made to walk nude before a panel of IOC judges. The IOC later realised that what is on the outside of an athlete does not always match what is on the inside. As a result of this realisation the testing moved on to an athlete’s chromosomes. However, once it was shown that women can have a single X chromosome that too was abandoned. Later came SRY gene detection12, but following the Atlanta Olympic Games in which 8 women tested positive for it but were all cleared for competition it was deemed that this method was also not fit for purpose. The accepted laboratory based testing of verifying an athlete’s gender during the period leading up to the Sydney Olympic Games relatively frequently, and unfairly, singled out female athletes whose genetic make-up although not “normal” did not provide them with an undue competitive advantage.13
The IOC then decided to dispense with the testing altogether, until Semenya’s case came about. Semenya was unfortunately far from the first athlete to face this kind of intrusive public scrutiny. The Indian middle-distance runner, Santhi Soundarajan, had her silver medal from the 2006 Doha Asian Games revoked after she failed a gender test. She was subsequently banned from her sport by the Athletics Federation of India14.
Criticisms of the sporting authorities
The Kick It Out15 campaign, which is funded supported and funded by the game’s governing bodies, including the Professional Footballers Association (PFA), the Premier League and The Football Association, believes that while the FA’s policy on transgendered players was probably introduced with good intentions and to prevent footballers lying about their gender and thereby ensuring that the game was played fairly, but there may be legitimate concerns that the policy could be discriminatory. Under the FA’s policy (as in others) there is a requirement that an individual must have extensive surgery to be allowed to partake in the sport of their choosing. The cost for this sort of surgery is understandably quite expensive and reduces the accessibility of transsexual athletes from playing in their acquired gender. Associations like the FA could therefore be 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 footballer’s career is not exactly a long one. Moreover the testing, treatment, and humiliation that can come with it, as was shown in the Semenya case, only applies to male-to-female athletes. Female-to-male athletes do not go through the same procedures.
Some experts and commentators hold the view that gender should not be an issue at all in competitive sport. Former Canadian Olympian and professor of physical education and health at the University of Toronto, Bruce Kidd, publicly declared his opposition to gender testing in sport prior to the London Games.16 Kidd stated that women’s success in sports is too often seen as unnatural and a threat to male dominance. Kidd suggests sport should stop separating women and men as two separate groups. Instead we should think of humans as a spectrum of variation and that sports should be re-organized in such a way that athletes would compete solely on the basis of ability and not their gender. As Rebecca Jordan-Young and Katrina Karkazis noted in the New York Times,17 size and strength could, in the future, provide a better basis for groupings than sex alone. They suggest that by protecting the principle of sex segregation can undermine female athletes, and an example of this would be a recent rule by the International Association of Athletics Federation (IAAF) that women’s marathon records cannot be set in races that include male competitors. This rule would have effectively eliminated Paula Radcliffe’s best time in 2003, in which she beat the record by three minutes. Jordan-Young and Karkazis’ article does go on to suggest that sex segregation is probably still a good idea in some sports and at some levels. They argue that it might be time to refocus policy discussions at every level so that sex segregation is only one means to achieve fairness and not the ultimate goal.
There is no doubt that the issue of transgendered or transsexual athletes in sport is a difficult one to legislate. Athletes, the general public, and sports clubs do not have the power to ‘legislate’ and sport governing bodies are more involved in the ‘regulation’ of sport often taking their cues from actual legislation such as the Gender Recognition Act 2004. Yet even so all parties appear to struggle to grapple with the complexity and wide variety of cases and the issues that are raised in this area especially as science and our understanding of the human body and what defines us as male or female continues to change. There is no magic starter pistol or referee’s whistle that will solve the issues faced by transsexual athletes. There is no doubt that sporting authorities have come a long way since the nude parades of the 1960s, things have improved somewhat to those athletes constrained by their gender. Who knows what the sporting landscape might look like in another fifty to sixty years from now, although that may be of little comfort now to athletes such as Santhi Soundarajan or Fallon Fox. Perhaps it is time, following the Caster Semenya case, for the IOC, in conjunction with other leading sporting authorities to review its regulations on the issue of transsexuality in sport in order to ensure that sport does indeed exist for everyone including this minority
- Transsexuals in Sport – Fairness and Freedom, Regulation and Law by John Coggon, Natasha Hammond and Søren Holm, Routledge Publishing (1 April 2008)
- no. 28957/95.
- no. 25680/94.
-  P 83.
- Article 8 of the European Convention on Human Rights provides a right to respect for one’s “private and family life, his home and his correspondence”, subject to certain restrictions that are “in accordance with law” and “necessary in a democratic society”. Article 12 of the European Convention on Human Rights provides for the right to marry. Article 13 provides for the right for an effective remedy before national authorities for violations of rights under the Convention. The inability to obtain a remedy before a national court for an infringement of a Convention right is thus a free-standing and separately actionable infringement of the Convention. Article 14 contains a prohibition of discrimination based on “sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status”.
- Transsexual athletes treated unfairly by Donna Rose, CNN (20 October 2010) para 1.
- Has Transsexuality in Football Turned a Corner by Chris Ledger for inbedwithmaradona.com (5 January 2011) paras 2-3.
- The committee was comprised of the following experts Prof. Arne Ljungqvist (SWE), Prof. Odile Cohen-Haguenauer (FRA), Prof. Myron Genel (USA), Prof. Joe Leigh Simpson (USA), Prof. Martin Ritzen (SWE), Prof. Marc Fellous (FRA), and Dr Patrick Schamasch (FRA).
- The Football Association (FA) Policy on Transgender and Transsexual People in Football
- A detailed discussion of the medical and legal issues surrounding intersexual individuals can be found in Chau and Herring (2002).
-  3 FCR 74812 SRY gene detection involves testing the gene that triggers male sex determination.
- Gender identity and sport: is the playing field level? By J C Reeser, The British Journal of Sports Medicine (3 May 2005) para 10.
- Asiad silver medallist Santhi Soundarajan labours at brick kiln by V Narayan Swamy, The Times of India (24 July 2012)15 Has Transsexuality in Football Turned a Corner by Chris Ledger for inbedwithmaradona.com (5 January 2011) here http://www.kickitout.org/1264.php paras 9-20.
- Olympian wants gender testing banned by Canadian Running Magazine (2 February 2012) paras 5-8.
- You Say You’re a Woman? That Should Be Enough by Rebecca Jordan-Young and Katrina Karkazis, The New York Times (2012) para 20.