The status of transgender and intersex athletes in international sports federations

Abstract

This contribution is the fruit of numerous discussions with several practitioners and legal advisors within sports organisations in Switzerland, the United Kingdom and the United States, and aims to guide sports federations in the internal rules they must put in place following the recommendations of the International Olympic Committee in November 2021, with a reminder of the various regulations adopted in this area over the last 60 years.

1 Introduction

Are international sports federations still free to restrict the right of transgender or intersex athletes to compete in the name of sporting fairness and under what conditions?

After puberty, men develop physical abilities that most women cannot match. The difference is such that a division between male and female athletes must be put in place to maintain fairness in sports. Initially, athletes were categorized by gender. However, despite this categorization, challenges emerged as some female athletes used drugs to boost their testosterone levels, gaining an advantage over their peers. While regulations evolved addressing these issues continue to evolve, so too do the difficulties needing to be faced. In fact, gender is not a binary notion, therefore the inclusion of transgender and intersex athletes requires a revaluation of traditional categorizations.

At the same time, human rights have become increasingly important in the world of sport to promote and facilitate the qualification of transgender athletes.

The statutes of the various associations and federations have for some years mentioned a right of access to sport and a duty of non-discrimination. For example, FIFA’s statutes state that “FIFA aims to ensure that football is accessible and provides resources to all those who wish to take part in it, regardless of gender or age” (art. 2 let. E) [that it] undertakes to respect all internationally recognised human rights and will do its utmost to promote the protection of these rights” (art. 3) and that “any discrimination against a country, an individual or a group of persons on the grounds of skin colour, ethnic, geographical or social origin, gender, disability, language, religion, political or other opinion, property, birth or other status, sexual orientation or any other reason is expressly prohibited, on pain of suspension or exclusion” (art. 4(1) of the FIFA Statutes). [1]

The implementation of these principles is, however, laborious and complex.

The balance between strengthening human rights, which is obviously to be welcomed, and preserving sporting fairness, has required a delicate balance on the part of international and national sports federations since November 2021; since that date, the International Olympic Committee (“IOC”), following several controversies generated by widely publicised legal precedents, has established criteria applicable to all federations (e.g., a maximum testosterone level), decreeing that it is up to each international federation to set its own rules in accordance with the characteristics of its own sport. This is a tremendous challenge as each federation must take the initiative to adopt an appropriate regulation and coordinate with each other.

This article provides an update on the evolution of practices on the status of transgender athletes before and after the publication of the IOC’s Framework for Equity, Inclusion and Non-Discrimination on the Basis of Gender Identity and Intersex in November 2021 and their implementation within the International Sports Federations and Swiss Olympic.

2 A brief definition of transgender and intersex athletes

Broadly speaking, transgender athletes are those who do not identify with the gender they were assigned at birth. [2]

While the World Health Organisation defines gender incongruence as “a marked and persistent incongruence between an individual’s experienced gender and the assigned sex” [3], the question has long been raised as to whether transgender athletes should be allowed to compete in the sex they have not been assigned as a result of hormonal treatment and/or surgery. These procedures are, in practice, the ones that primarily require regulation within sports federations.

Transgender athletes should be distinguished from intersex athletes. Intersex athletes are those who are born with sexual characteristics that do not correspond to traditional gender definitions [4], for example, due to naturally high testosterone levels. These athletes have so far also been targeted by association regulations limiting their access to competitions, but the question arises as to the legitimacy of such regulations. What is the difference between a naturally high testosterone level in a sportswoman and an “abnormally” tall volleyball or basketball player from the point of view of sports equity?

There are many issues related to trans-identity in sport. The rules that have been proposed so far have been subject to significant criticism. While the involvement of the scientific and medical community is not usually necessary for the development of sports rules, the analysis of gender issues cannot be done without it, but nor should it be limited to it. [5]

The issue of equity in women’s sport also lies at the centre of the debate, leading some experts to ask whether the advances and freedoms gained for women in sport over the last century are not losing ground. [6]

3 The situation before November 2021 and the Semenya case

3.1 Previous methods used to determine sex

The first approach chosen by international sporting bodies was to determine the gender of participants in women’s events for international competitions from the mid-1960s. The first method used consisted of summary physical examinations of the athletes’ genitals. [7]

The sex chromatin buccal swab test was then introduced at the Olympic Games in Mexico City (1968). This method was designed to detect genetic female chromosomes (46,XX) with a single X chromosome mass, while males (46,XY) do not, and then to allow athletes to compete based on the result of this analysis.

The medical literature states that this method has led to misinterpretation resulting in false positive and false negative results. [8] In addition, as there are phenotypic females with male chromatin patterns (e.g. androgen insensitivity, XY gonadal dysgenesis), this has resulted in exclusions without physiological benefit. [9]

The next method chosen by the IOC to determine male gender, the SRY gene polymerase chain reaction test, was not medically conclusive either.

3.2 Waiver of sex verification tests and authorisation of transsexual athletes

In 1991, these uncertainties led the International Association of Athletics Federation (hereafter IAAF; now World Athletics) and then the IOC to abandon laboratory testing of such a facility at the Sydney Olympics in 2000. [10] The same was true of 29 out of the 34 international federations. [11]

The consensus at the time was that it seemed extraordinarily unlikely that men would be able to impersonate women in the face of doping controls. The experts recommended the following to the IAAF:

• any person who had undergone a sex change before puberty should be allowed to compete in their new gender;
• the situation of athletes who have changed sex after puberty should be assessed on a case-by-case basis, as testosterone-generating male puberty can, at least in theory, lead to physiological advantages. [12]

3.3 Stockholm consensus statement on gender-related changes in sport

The IOC then asked its Medical Commission in 2003 to develop more comprehensive criteria to explain what an objective gender assessment would entail and what conditions would need to be met for an athlete to be allowed to compete in their new gender.

This study resulted in a recommendation by a group of medical experts based on an update of the IAAF guidelines, to which were added the right to compete in the new gender when the change had taken place after puberty and based on considerations on the duration and significance of the hormonal influence of puberty, the influence of testosterone on muscle strength, the time of treatment required for female hormones and the verification of the treatment required for female hormones. [13]

These recommendations, which were adopted by the IOC in 2004 shortly before the Athens Olympics, are one page long and were[14]:

• any male who has undergone a sex change before puberty should be considered female; this principle also applies to women, who should therefore be considered male;
• men and women who underwent sex reassignment after puberty were to be allowed to compete in women’s or men’s competitions under the cumulative conditions that:
  • surgical anatomical changes had been performed, including external genitalia changes and gonadectomy;
  • legal recognition of the new gender has been granted by the competent official authorities; and
  • hormonal treatment appropriate to the new gender has been administered in a verifiable manner and for a sufficiently long period of time to minimise gender-related advantages in sports competition;
• the athlete should not be allowed [to compete] for a minimum of two years after a gonadectomy;
• a confidential case-by-case assessment would be carried out; and
• In the event of any doubt as to the gender of an athlete, the medical delegate (or equivalent) of the relevant sporting body shall be empowered to take all appropriate steps to determine the gender of a competitor.

3.4 The 2010 IOC Regulations on Female Hyperandrogenism

In the run-up to the London 2012 Olympic Games, the IOC, based on the work of its Medical Commission, issued a regulation on female hyperandrogenism, which was published in September 2013 and then updated for the 2014 Olympic Winter Games in Sochi, with the following principles and rules:[15]

• it is not the IOC’s role to determine the gender of an athlete;
• Intersex athletes are categorised as male or female according to their legally recognised sex (i.e., in their civil status and identity documents);
• as an exception, intersex female athletes with high levels of androgens, known as “female hyperandrogenism”, may not be allowed to compete and their situation must be assessed by a panel of experts because they may have an advantage in terms of strength, power and speed;
• in the presence of a suspected case of hyperandrogenism, an investigation can be requested by any of the following (i) an athlete concerned about her own symptoms of hyperandrogenism and not a competitor, (ii) a physician of the National Olympic Committee, (iii) the Chief Medical Officer of the Organising Committee of the Olympic Games or (iv) the Chairman of the IOC Medical Commission;
• an expert panel consisting of a gynaecologist, a genetic expert and an endocrinologist, potentially with other specialists, could request any relevant information and documentation (if any) concerning the athlete under investigation (e.g. medical history, sex hormone levels, diagnosis, treatment, results, etc.) produced by the athlete and her team physician in order to determine whether the athlete had female hyperandrogenism which gave her an advantage in competition (namely functional hyperandrogenism and the androgen level was within the range of the male values), in which case the athlete should be denied participation in the Olympic Games.

3.5 IOC Consensus Meeting of 2015

In November 2015, the IOC Medical and Scientific Commission drafted a joint statement on the rules to be adopted in the case of sex change in athletes and hyperandrogenism in female athletes.

3.5.1 Guiding principles

The principles adopted by the IOC in 2015 were:[16]

• the primary sports objective of sports institutions was to ensure fair competition;
• transgender athletes should not, as far as possible, be excluded from participation in sports competitions to respect free choice of gender identity, which was then (and is now) increasingly recognised by states;[17]
• by way of exception, restrictions on participation should be appropriate, if they are necessary and proportionate to the achievement of fairness in competition;
• requiring surgical anatomical alterations as a precondition for participation is not necessary to maintain fair competition and may even be incompatible with new legislation and notions of human rights.

The admissibility of a restriction on an athlete’s permission to compete is thus very close to the constitutional conditions of proportionality with which an infringement of a fundamental right must comply (art. 36(3) Cst. [18]. This principle requires that a restrictive measure must be capable of producing the desired results (fitness rule) and that these cannot be achieved by a less intrusive measure (necessity rule). In addition, it prohibits any restriction that goes beyond the intended aim and requires a reasonable relationship between the aim and the public or private interests compromised (principle of proportionality in the narrow sense, involving a weighing of interests).[19]

These limits to the restriction of a fundamental right apply in principle exclusively to “vertical relationships”, i.e. to rules or acts of state authorities and not in the relationship between a sports federation and one of its members; however, it has already been ruled under Swiss law, that the strict conditions for the restriction of fundamental rights can also apply in horizontal relationships, i.e. in the relationship between private individuals and private bodies, in particular when it is a question of interpreting general or indeterminate concepts,[20] such as [X].

The more a private law entity has a de facto or de jure monopoly on a certain sector of economic activity, as most international sports federations do, the more they will have to ensure that they respect the constitutional conditions for restricting a fundamental right (Art. 36(3) Cst.).

3.5.2 Rules on transgender athletes

Based on the above, the IOC in 2015 issued the following rules:

• athletes making the transition from female to male were allowed to compete in the male category without restriction.
• those who made the transition from male to female were entitled to compete in the female category under the following conditions:
  • the athlete had to have declared his or her gender identity as female and this declaration could not be changed for sporting purposes for at least 4 years;
  • the athlete had to prove that her total serum testosterone level was below 10 nmol/L of blood for at least 12 months prior to her first competition (a longer period could be required based on a confidential case-by-case assessment of whether 12 months is a sufficient length of time to minimise any advantage in a female competition); and
  • the athlete’s total serum testosterone level must remain below 10 nmol/L for the entire period during which the athlete wishes to compete in the female category.

3.5.3 Rules on hyperandrogenism in female athletes

In 2015, with regard to hyperandrogenic female athletes, the IOC again recommended:

• the establishment of rules for the protection of women in sport and the promotion of the principles of fair competition;
• the IAAF, with the support of other International Federations, National Olympic Committees and other sports organisations, present to the Court of Arbitration for Sport (“CAS”) arguments and evidence to support the reintroduction of its rules on hyperandrogenism; and
• that athletes who are not allowed to compete in women’s competitions should be allowed to compete in men’s competitions “to avoid discrimination”.

However, the IOC did not apply these new rules on female hyperandrogenism because of an interim award by the Court of Arbitration for Sport (CAS) in Chand v. AFI and IAAF,[21] which concerned an athlete who naturally produced a high level of testosterone. [22]

3.6 IAAF Regulations

On 23 April 2018, the IAAF published its rules entitled “Rules Governing Qualification in the Women’s Category (for Athletes with Differences in Sex Development)” (“DSD Rules”).[23]

The DSD Rules stipulate that athletes must have a testosterone level of less than 5 nmol/L to compete in international women’s competitions between 400 m and the mile,[24] otherwise athletes must either medically lower their testosterone level or attempt to qualify for men’s competitions.

3.7 The situation in Europe on gender reassignment

Council of Europe Resolution 2048 on "Discrimination against transgender persons in Europe" of 22 April 2015 calls on member states to combat discrimination against transgender persons (sections 6.1 et seq.), to ensure access to necessary care (sections 6.3 et seq.) and to raise awareness among the public and interested parties (sections 6.4 et seq.), based on the Maltese example, recognising a right to gender identity and calling on states to introduce rapid, transparent and accessible name and sex change procedures based on self-determination and open to all persons regardless of age and health status.

Switzerland changed its legislation in this direction on 1 January 2022 so that it is now possible for anyone to have their registered sex changed if they are firmly convinced that they are of the opposite sex, provided that they are domiciled in Switzerland or are a Swiss citizen living abroad (Art. 30b (new) SCC[25]). In February 2023, Spain has approved a new legislation permitting anyone aged over 16 to change their registered gender without any medical supervision.[26]

Gender indication is mandatory in Switzerland. On 30 April 2019, a Swiss national living in Germany, whose gender had been deleted on the German civil registration according to German law, requested the recognition of the German decision in Switzerland. The Swiss authorities refused the inscription of a non-gender status in Switzerland. Later on, the Obergericht of the canton of Aargau admitted the appeal and recognized the non-gender status, but the Swiss Federal Tribunal cancelled the decision upholding the rule that gender indication is mandatory in Switzerland.

It should be noted that the European Court of Human Rights (“EUCHR”) does not consider that the recognition of a non-binary status is part of the fundamental rights.[27]

3.8 Semenya Case

It was in this context that athlete Caster Semenya filed a request for arbitration with CAS in 2018, challenging the validity of the DSD rules.

CAS rejected the athlete's request in 2019 and confirmed the validity of this rule despite its discriminatory character retained by the arbitrators, considered however as necessary, reasonable and proportionate for the preservation of sporting equity in women's competitions.[28]

This decision was confirmed on 25 August 2020 by the Swiss Federal Tribunal, which ruled solely on the basis of the prohibition of arbitrariness (Article 9 of the Swiss Constitution). The latter rejected the athlete's appeal, holding that fairness in competitions is a cardinal principle of sport and that a testosterone level comparable to that of men gave female athletes "an insurmountable advantage".[29]

The Semenya case triggered a major media controversy, with some people seeing the CAS decision as giving sports federations a blank cheque in defining the conditions for admitting hyperandrogenic and even transgender athletes, while others saw it as a necessary decision in the fight against doping[30].

On 11 July 2023, the EUCHR disagreed with the Swiss Federal Tribunal and held that the Swiss authorities had breached the prohibition of discrimination (Art. 8 and 14 ECHR). The ground of discrimination based on sex and the difference of treatment could not be justified. The Swiss Federal Tribunal and the CAS had failed to take into consideration either the basis of the Regulation DSD or its justification. Indeed, they did not point out the fact that hormone treatment can cause serious side effect, and that even taking the treatment rigorously does not allow the criteria of the Regulation DSD to be met with certainty. In addition, the CAS had only little evidence that female athletes with higher testosterone levels had an advantage in the 1500 m and the mile races. Therefore, the EUCHR hold that the Swiss courts violated their obligation to effectively preserve and resolve any discriminatory acts.[31]

As proven in the Semenya Case, regulations based only on testosterone tests are not effective and they are likely to result in discriminatory acts.

4 The new IOC recommendations of November 2021

In 2021, after extensive consultation with athletes and international sports federations in particular, the IOC published a document entitled "IOC Framework on Equity, Inclusion and Non-Discrimination on the Basis of Gender Identity and Intersex" in November 2021.[32]

This text does not contain binding rules for international sports federations but is formulated in the form of recommendations by the IOC as part of its commitment to respect human rights, as expressed in the Olympic Agenda 2020 +5, and the measures taken to promote gender equality and inclusion, These are long-standing themes, but in recent years they have gained much greater prominence in the public debate, particularly in Western European countries including in Switzerland, following the observation that, after more than 25 years of gender equality recognised by Swiss law, women are still at a disadvantage compared to men, particularly in the workplace.[33]

The IOC prohibits systematic discrimination or outright exclusion of transgender athletes and calls on federations to establish and determine science-based admission criteria in order to preserve fairness and avoid disproportionate and unfair advantages and/or risks to the physical safety of individuals. The IOC refrains from setting rules with criteria applicable to all federations (e.g. maximum testosterone level) but proposes a framework for international federations to establish their own rules according to their sport.

The framework proposed by the IOC thus requires international sports federations to recognise, in their internal rules, not only the need to ensure that every person, irrespective of their gender identity or intersex status, is able to participate in sport in a healthy environment free from all forms of harassment, but also to take into account the interest of all, and in particular high-level athletes, in competing in fair and safe competitions. The debate was reopened on the appropriate, necessary and proportionate cohabitation of sports equity and the right to sexual identity.

In these new recommendations, the IOC states in this respect that:

• transsexual women should no longer have to reduce their testosterone levels to compete in the 'female' category;
• that it cannot be assumed that a transsexual woman automatically has an advantage over other women and that it is up to the sports federations to regulate this matter and
• that it is always possible for sports federations to restrict access to the women's category to ensure the safety of the athletes and the fairness of the sports competition.

These eligibility criteria must, for each sport, be based on sound, peer-reviewed research demonstrating an unavoidable risk to the physical safety of other athletes and/or a consistent, unfair and disproportionate advantage.[34]

It would appear from these new recommendations that the IOC intends to emphasise human rights by allowing sports federations to place less emphasis on purely scientific and medical considerations, thus partially reversing the 2015 rules (see sections C.5.2 and C.5.3 above).[35]

Consequently, the implementation of the 2021 recommendations is a major challenge for sports federations that have already recognised the inclusion of trans people and athletes with sexually developed differences (“SDD”) in their rules on the basis of scientific and medical criteria, which they will have to justify on the basis of updated medical and other studies demonstrating the consistent, unfair and disproportionate advantage of the athletes covered by these rules.

Doctors and other scientists agree that new, clearer recommendations are needed that protect athletes' rights and give international federations the tools to ensure inclusion and fairness.[36]

5 Overview of the directives in force within the various international sports federations

Each international sports federation must therefore issue rules specific to the sport for which it organises competitions.

For a comparative approach that may be useful to sports federations when implementing the 2021 IOC recommendations, the website www.transathlete.com lists the existing guidelines within the international sports federations [37] or at the national level in the USA [38]. The main rules and discussions underway are outlined below:

5.1 Swimming

In June 2022, the International Swimming Federation (“FINA”) issued a new Policy on Eligibility for the Men's and Women's Competition Categories with the following objectives:

• maintain the separation of aquatic sports into male and female categories according to scientifically based gender criteria;
• to provide the opportunity for transgender and XY SDD athletes to compete in FINA competitions in the competition category that reflects their gender identity, based on eligibility criteria consistent with FINA's objectives for the female category; and
• establish a clear, fair, respectful and confidential process by which athletes can establish their eligibility for FINA competitions.

Specifically, only male-to-female transgender athletes who have completed testosterone-suppressing treatments before the age of 12 are eligible to compete in the women's category [39].

To our knowledge, this is the most stringent requirement to date for transgender women athletes, although FINA does provide in its rules for the possibility of a separate "open" category in which athletes could compete regardless of their sex, gender or identity.

The motivation for these new FINA guidelines is undoubtedly based, at least in part, on the recent performance of transgender American swimmer Lia Thomas who completed her transition shortly before the start of the 2021–2022 season. Ranked 462nd internationally in the men's event, she quickly established herself as the number one swimmer in her first season of women's competition. Today, Lia Thomas does not meet the eligibility requirements for competition in the women's category and will not be able to participate in FINA competitions at this time.

These guidelines have been heavily criticised in the press. [40]

In response to criticism, FINA is including an open category in the upcoming World Aquatics Swimming World Cup 2023 competition in Berlin. This leading project encourages athletes of all gender identities to take part in swimming. [41]

5.2 Rugby

World Rugby issued a guideline in October 2020 based primarily on the 2015 IOC consensus and testosterone levels.

In the summer of 2022, World Rugby stated on its website that transgender players would not be allowed to compete until guidelines on their inclusion were issued. [42]

Following extensive scientific research, World Rugby issued new transgender guidelines.

Transgender female athletes are not allowed to compete in women’s rugby if they have experienced the biological effect of testosterone and have transitioned before male puberty.

Willing to maintain fairness among female athletes, World Rugby intend to update these guidelines every three years based on the latest medical and scientific research about the impact on testosterone suppression. [43]

Regardless of whether or not transgender men have experienced puberty, they are eligible to compete in men’s rugby under certain conditions. For the purpose of safety, they must provide a confirmation of physical ability and a therapeutic use exemption (“TUE”).

The confirmation of physical capacity must include a written statement in which the player acknowledges and accepts the risk of playing rugby with men. In addition, a medical practitioner has to write a confirmation which certifies “that the player is in a physical condition to play and that this view is supported by a musculo-skeletal evaluation and/or other appropriate assessments.” [44]

In addition, transgender males who require the use of prohibited substance as part of their treatment need to fil out a TUE allowing them to pursue their treatment while playing rugby. [45]

As it stands, all athletes can participate in mixed non-contact rugby competitions.

This federation is currently exploring the possibility of creating an "open category" of rugby in which any athlete could play, regardless of gender. As it stands, all athletes can participate in mixed non-contact rugby competitions [46]

5.3 Cycling

On 14 July 2023, the International Cycling Union (“UCI”) adapted its policy on the admission of transgender athletes to races and competitions.

The new regulations, which came into force on 17 July 2023, oblige transgender female athletes:

• to lower their concentration of testosterone in their serum below 2.5 nmol/L;
• they must not have gone through male puberty or beyond tanner stage 2;
• they have to maintain a level of testosterone below 2.5 nmol/L at all times; and
• they have to provide a written and signed document stating their gender identity is female. [47]

Tanner Stages is a scale developed to describe the progression of pubertal changes. Tanner Stage 2 is reached when there is pubic hair along the labia and or the base of the penis, the scrotum expands and the texture of the skin changes. [48]

Transgender male athletes need only to provide a written and signed document stating their gender is male. [49]

For international master events, UCI is changing the men’s category and is renaming it Men/Open. Therefore, any athlete whom does not meet the criteria for competing in a women’s event is eligible without any restrictions.

These changes were (quietly) communicated in a press article entitled “The UCI adapts its rules on the participation of transgender athletes in international competitions". [50]

5.4 Football

FIFA is reportedly reviewing its regulations, taking into account the advice of medical, legal and scientific experts. FIFA has indicated that if the issue arises before the regulations are issued, it will address the issue on a case-by-case basis, taking into account the federation's commitment to human rights. [51]

5.5 Athletics

On 23 March 2023, the IAAF issued new rules entitled “Eligibility Regulations for Transgender Athlete (Version 2.0, approved by council on 23 March 2023, and coming into effect on 31 March 2023)”.

Transgender male athletes need to give a written and signed declaration stating their gender identity is male.

Regarding transgender female athletes, they issued the following rules:

• athletes “must provide a written and signed declaration stating their gender is female”;
• “they must not have experienced any part of male puberty either beyond Tanner Stage 2 or after age 12”;
• the concentration of testosterone in their serum must continuously be maintained below 2.5 nmol/L since puberty; and
• the concentration of testosterone in their serum must remain below 2.5 nmol/L at all times. [52]

As mentioned above, in 2023 the IAAF established a rule requiring testosterone levels to be below 2.5 nmol/l since puberty and to remain below it. In addition, transgender female athlete must not have experienced male puberty. [53]

As a result, Halba Diouf, a female transgender sprinter, has been banned from participating at the next Summer 2024 Paris Olympic. Diouf began her male-to-female transition as an adult and therefore is not eligible to compete. [54]

5.6 Tennis

The International Tennis Federation ("ITF") had updated its policy in August 2023 based on the IAAF's directive of the same year. The current rules in place within the ITF thus provide that a transgender woman must have less than 5 nmol/L for at least 12 months prior to a competition, with the requirement for a longer period reserved for a case-by-case basis. They also need to provide a written and signed declaration which states that their gender identity is female. [55]

There is currently unresolved discrepancy in that the ITF and the Women's Tennis Association (WTA) have not opted for the same eligibility criteria (5 nmol/L and 10 nmol/L limit) for qualifying in women's competitions. [56]

6 The Swiss Olympic recommendations of 13 June 2022

The classification of transgender athletes and more specifically transgender women thus confronts sports organisations with questions of sports equity but also with organisational and ethical challenges.

Against this background and based on the IOC's recommendations, and taking into account the fact that the federations themselves are responsible for drawing up admission criteria for transgender athletes, Swiss Olympic has issued the following recommendations for the national sports federations, which the international sports federations, particularly those present in Switzerland, can draw on: [57]

6.1 Guiding principles

• Transgender male athletes have no particular sporting advantage and should be able to compete in male competitions as soon as they express the wish to do so;
• The same applies to transgender athletes before puberty who should be able to compete in male or female competitions depending on which gender the young athletes identify with; and
• The case of transgender women (i.e. athletes assigned to the male sex at birth who feel like women) is more problematic insofar as, as mentioned, certain physical advantages are directly derived from male attributes. It is therefore justified to analyse the situation by distinguishing between performance sport, practised at a high level, i.e. professionally, and so-called "mass" (amateur) sport.

6.2 Performance sport (elite and professional)

• Sports federations should not systematically exclude people on the basis of their gender identity, physical appearance or intersex status;
• Any person who meets the eligibility criteria may compete in accordance with their chosen gender;
• Without scientific evidence, it must be assumed that no one receives unfair advantages solely on the basis of particular physical characteristics, being intersex or being transgender; and
• Restrictions on participation must be based on robust, peer-reviewed scientific evidence.

6.3 Mass sport—amateur sports

In the absence of a clear scientific consensus, the approach must be pragmatic, bearing in mind that in amateur and mass sport in particular, the priority shall be self-determination and the physical and psychological well-being of athletes.

7 Conclusions

It is no longer possible for international sports federations to avoid the issue of classifying transgender women athletes in the existing female or male competition categories.

Instinctively, it seems obvious that female athletes should compete against women and male athletes against men in disciplines where muscle mass, strength, size and/or speed, in particular, give male-born athletes clear physiological advantages.

This is the case for football, basketball, volleyball, rugby, handball, [58] but also for judo, rowing, swimming, triathlon, the various disciplines of athletics, tennis, boxing and endurance sports. Whereas these advantages seem less obvious for sailing, table tennis, fencing and the precision sports of shooting, golf and archery, to name but a few.

From a sports equity perspective, an examination must be made on the basis of the anthropometric characteristics and performance values of each sport to determine whether there is scientific evidence that a "male" athlete in the discipline in question actually has physiological advantages over female athletes, and what the risks are for both genders of competing in a "mixed" manner, so as to determine whether a distinction and restrictions on competition remain relevant.

It should also be borne in mind in this assessment that the physiological benefits highlighted are only averages and do not have the same importance in all disciplines.

In addition to considerations of sporting fairness, it is also important for sports federations to take into account the risk of admitting male-born athletes to competitions in terms of the greater risk of injury to other athletes. This assessment will be very different for precision sports, sailing or golf on the one hand and contact sports on the other.

In summary:

• the highest bodies of each international sports federation should, if they have not already done so, set up a multidisciplinary task force composed of one or more representatives of the executive body at its highest level, doctors, scientists (e.g. bioethicists) and specialised lawyers to draw up its own rules according to the physical characteristics of the risks associated with each discipline in accordance with the 2021 IOC Framework Principles;
• This task force should define the criteria for admitting and excluding athletes from competitions on the basis of an accurate assessment of the physiological advantages, if any, of males over females, with a rationale for why these advantages undermine sporting fairness in relation to other athletes and/or why the admission of transgender athletes increases the risk of injury to other athletes, if any;
• the more the discipline concerned is a sport where the physiological advantages of one gender over the other are significant and/or contact may create accident risks for other athletes, the more exclusionary or limiting rules on participation in competitions will be justified;

Sports federations must expect that the rules they have or will make will be challenged by athletes in arbitration or state courts, and criticised by the media; it is therefore essential that the basis for the decisions taken is explained, that the preparatory work for these rules is carefully kept, and that they are based on a rigorous examination of the physiological benefits and risks of accidents, involving recognised professionals, and that these rules are then translated into clear and understandable regulations, also by qualified professionals.

Notes

FIFA Statutes, May 2022, <https://www.fifa.com/about-fifa/official-documents> (last accessed on 24 November 2023).

Swiss Olympic, Information on the Admission of Transgender Athletes to Sport-Related Gender Categories, 2022, <www.swissolympic.ch/dam/jcr:fb855718-c7e0-4430-9cd5-b3aae42f04fb/Factsheet%20Transgender%20Athlet_innen%202022%20FR.pdf> (last accessed on 23 August 2023), Transgender Network Switzerland,<www.tgns.ch/fr/information-2/> (last accessed on 23 August 2023)

World Health Organization, ICD-11 for mortality and morbidity statistics, 2023, <https://icd.who.int/browse11/l-m/en#/http%3a%2f%2fid.who.int%2ficd%2fentity%2f411470068> (last accessed on 23 August 2023).

Transgender Network Switzerland, <www.tgns.ch/fr/information-2> (last accessed on 23 August 2023).

INGRAM/THOMAS, Current Sports Medicine Reports by the American College of Sports Medicine, vol. 18/6, Transgender Policy in Sport, A review of Current Policy and Commentary of the Challenges of Policy Creation, 2019, p. 239 et seq. (last accessed on 23 August 2023).

Idem, p. 246.

IAAF, Policy on Gender Verification, 2006, p. 1; Jonathan REESER, Gender identify and sport: is the playing field level, in: Journal of Sports Medicine, 2005/39 pp. 695 et seq., p. 695.

REESER, p. 696.

SIMPSON/LJUNGQVIST ET AL., Gender verification in competitive sports, in: Sports Medicine, Vol. 16, 1993, p. 305 et seq., p. 315.

SIMPSON/LJUNGQVIST ET AL. p. 315.

REESER, p. 696.

IOC Medical Commission, Explanatory note on the recommendation on gender reassignment in sport, 2003, <https://stillmed.olympics.com/media/Document%20Library/OlympicOrg/News/20040517-IOC-Approves-Consensus-With-Regard-To-Athletes-Who-Have-Changed-Sex/FR-report-904.pdf#_ga=2.125896333.1069855919.1667163559-1801891735.1667163558> (last accessed on 23 August 2023).

Ibid.

IOC Medical Commission, Statement of the Stockholm consensus on sex reassignment in sports, 2004, <https://stillmed.olympic.org/Documents/Reports/EN/en_report_905.pdf> (last accessed on 23 August 2023).

IOC, Règlement du CIO relative à l’hyperandrogénisme féminin, <https://stillmed.olympic.org/Documents/Commissions_PDFfiles/Medical_commission/Reglement-du-CIO-relatif-a-lhyperandrogenisme-feminin.pdf> (last accessed on 23 August 2023).

IOC, IOC Consensus Meeting on Sex Reassignment and Hyperandrogenism, 2015, <https://stillmed.olympic.org/Documents/Commissions_PDFfiles/Medical_commission/2015-11_ioc_consensus_meeting_on_sex_reassignment_and_hyperandrogenism-fr.pdf> (last accessed on 23 August 2023).

Note that the situation remains quite disparate, even within countries traditionally considered democratic and based on the rule of law, especially in countries ruled by far-right political parties; for an overview: Human Rights Watch, Rights in Transition, Making Legal Recognition of Transgender People a Global Priority, 2011, <www.hrw.org/fr/world-report/2016/country-chapters/285052> (last accessed on 23 November 2022).

Federal Constitution of the Swiss Confederation of 18 April 1999 (Cst; SR 101).

Decision of the Swiss Federal Tribunal (“DTF”) 140 I 381, recital 4.5.

This is referred to as the "horizontal effect of fundamental rights"; see DTF 147 I 183, recital 8.3; DTF 143 I 217, recital 5.2.

Court of Arbitration for Sport, Decision CAS 2014/A/3759 Dutee Chand v. Athletics Federation of India & The International Association of Athletics Federations.

See in particular on this procedure Darryl HUTCHEON, Hyperandrogenism in Athletics: A Review Of Chand v. IAAF, 2015, <www.lawinsport.com/topics/item/hyperandrogenism-in-athletics-a-review-of-chand-v-iaaf> (last accessed on 23 August 2023).

IAAF, Regulations Governing the Eligibility of Transgender Athletes of 2018, para 3B, 2019.

Ibid.

Swiss Civil Code of 10 December 1907 (SCC; SR 210).

See e.g., Sam JONES, The Guardian, Spain passes law allowing anyone over 16 to change registered gender, 2023, <https://www.theguardian.com/world/2023/feb/16/spain-passes-law-allowing-anyone-over-16-to-change-registered-gender>.

Swiss Federal Tribunal decision 5A_391/2021 of 8 June 2023 recital 2.1; 3.4.3; 3.4.4 and 3.6.5; Press release from the Federal Supreme Court of the Swiss Federal Tribunal 5A_391/2021 of 8 June 2023.

CAS, award CAS 2018/O/5794 and CAS 2018/O5798 of 30 April 2019.

Swiss Federal Tribunal decision 4A_248/219 of 25 August 2020 recital 9.8.2.

See e.g., Tariq PANJA, New York Times, After Semenya Ruling, Sports Federations Ponder What's Next, May 2, 2019, <www.nytimes.com/2019/05/02/sports/semenya-impact.html> (last accessed on 23 August 2023).

Semenya v. Switzerland, no. 10934/21, § 157, 181, 195, 11 July 2023.

IOC, IOC Framework on Equity, Inclusion and Non-Discrimination on the Basis of Gender Identity and Intersex, 2021, <https://olympics.com/ioc/human-rights/fairness-inclusion-nondiscrimination> (last accessed on 23 August 2023).

Swiss Federal Bureau for Gender Equality, <www.ebg.admin.ch/ebg/fr/home/themes/travail/egalite-salariale/bases/causes-et-consequences.html> (last accessed 23 November 2022); e.g. Le Temps, Les femmes d’avantage discriminées au travail, 2022, <www.letemps.ch/suisse/femmes-davantage-discriminees-travail> (last accessed on 23 August 2023).

IOC, IOC Framework for Equity, Inclusion and Non-Discrimination on the Basis of Gender Identity and Intersex, section 6.1, 2021, <https://olympics.com/cio/documents/athletes/cadre-pour-l-equite-l-inclusion-et-la-non-discrimination-sur-la-base-de-l-identite-sexuelle-et-de-l-intersexuation> (last accessed on 23 August 2023).

PIGGOZZI/BIGARD ET AL., on behalf of the International Federation of Sports Medicine (FIMS) and the European Federation of Sports Medicine Associations, Joint position statement of the International Federation of Sports Medicine and European Federation of Sports Medicine Associations (EFSMA) on the IOC framework on fairness, inclusion and non-discrimination based on gender identity and sex variations, in: BMJ Open Sport & Exercise Medicine 2022.

Ibid., p. 5.

<www.transathlete.com/international-federations> (last accessed on 23 August 2023).

<www.transathlete.com/northamerica> (last accessed on 23 August 2023).

FINA, Policy on Eligibility for the men's and women's competition categories, p. 7 par. 4.a., 2022, <https://resources.fina.org/fina/document/2022/06/19/525de003-51f4-47d3-8d5a-716dac5f77c7/FINA-INCLUSION-POLICY-AND-APPENDICES-FINAL-.pdf> (last accessed on 23 August 2023).

See, e.g., Matthew FUTTERMAN, New York Times, FINA Restricts Transgender Women From Competing at Elite Level, 2022, <www.nytimes.com/2022/06/19/sports/fina-transgender-women-elite-swimming.html> (last accessed on 23 August 2023).

World Aquatics, World Aquatics debuts open category at berlin swimming world cup 2023, 2023, <www.worldaquatics.com/news/3636298/world-aquatics-debuts-open-category-at-berlin-swimming-world-cup-2023> (last accessed on 17 August 2023).

World Rugby, Transgender Guidelines, <www.world.rugby/the-game/player-welfare/guidelines/transgender> (last accessed on 23 August 2023).

World Rugby, Transgender Women Guideline, 2023, <www.world.rugby/the-game/player-welfare/guidelines/transgender/women> (last accessed on 18 August 2023).

World Rugby, Transgender Men Guideline, 2023, <www.world.rugby/the-game/player-welfare/guidelines/transgender/men> (last accessed on 17 August 2023).

World Rugby, Transgender Men Guideline, 2023, <www.world.rugby/the-game/player-welfare/guidelines/transgender/men> (last accessed on 17 August 2023).

World Rugby, Transgender Guidelines, <https://www.world.rugby/the-game/player-welfare/guidelines/transgender> (last accessed on 23 August 2023).

UCI, UCI Constitution and Regulations, Part XIII, Chapter V, 13.5.015, 2023, <www.uci.org/regulations/3MyLDDrwJCJJ0BGGOFzOat#part-xiii-medical-rules> (last accessed on 17 August 2023).

LSU, The Tanner Stages, <www.medschool.lsuhsc.edu/medical_education/undergraduate/spm/SPM_100/documents/tannerstagescard.pdf> (last accessed on 23 August 2023).

UCI, UCI Constitution and Regulations, Part XIII, Chapter V, 13.5.014, 2023, <13-SEC-2023-07-17-ENG.pdf (ctfassets.net)> (last accessed on 21 August 2023).

UCI, The UCI adapts its rules on the participation of transgender athletes in international competitions, 2023, <www.uci.org/pressrelease/the-uci-adapts-its-rules-on-the-participation-of-transgender-athletes-in/6FnXDIzvzxtWFOvbOEnKbC> (last accessed 18 August 2023).

Simon EVANS, FIFA, World Athletics review transgender rules after swimming's change, 2022, <www.reuters.com/lifestyle/sports/fifa-world-athletics-review-transgender-rules-after-swimmings-change-2022-06-20/#:~:text=The%20new%20policy%20states%20that,before%20age%2012%2C%20whichever%20is> (last accessed on 23 August 2023).

IAAF, Eligibility Regulations for Transgender Athletes, para. 3B, 2023, <https://worldathletics.org/about-iaaf/documents/book-of-rules> (last accessed on 23 August 2023).

Eligibility Regulations for Transgender Athletes, para. 3B, 2023, <https://worldathletics.org/about-iaaf/documents/book-of-rules> (last accessed on 23 August 2023).

Fox News, Trans runner barred from Olympics rips World Athletics' decision to 'maintain fairness' in women's sports, 2023, <www.foxnews.com/sports/trans-runner-barred-olympics-rips-world-athletics-decision-maintain-fairness-womens-sports> (last accessed on 23 August 2023).

ITF, ITF Transgender Policy, 2023, <www.itftennis.com/media/2163/itf-transgender-policy.pdf> (last accessed on 23 August 2023).

WTA, WTA GENDER PARTICIPATION POLICY, 2018, <www.wtatennis.com/wta-rules> (las accessed on 23 August 2023).

Swiss Olympic, Information on the Admission of Transgender Athletes to Sport-Related Gender Categories, 2022, <www.spiritofsport.ch/dam/jcr:fb855718-c7e0-4430-9cd5-b3aae42f04fb/Factsheet%20Athl%C3%A8tes%20Transgenres.pdf> (last accessed on 23 August 2023).

REESER, p. 698.

This article was first published by The International Sports Law Journal.