By Libba Galloway, Stetson University
We’re all familiar with the pendulum metaphor applied to competitive sports — a team’s success swings in a particular direction for a period of time, and then tends to shift in the other direction. When it comes to transgender participation in sports, is the pendulum metaphor equally apt? Is the trend towards allowing athletes to compete in accordance with their gender identity starting to reverse and move in the other direction? Recent developments suggest that it is.
Background
Participation by transgender athletes rose to the level of public discourse in the 1970’s, when trans female Renee Richards sparked a debate by entering women’s professional tennis tournaments. Several questions were central to this debate. How is a person’s gender determined? And does a trans female athlete (a person born with physical characteristics of a male but who identifies as a female) have an unfair competitive advantage over athletes born with physical characteristics of a female?
At the time Richards was playing tennis, the prevailing test to determine gender for purposes of athletic competition was the Barr body chromosome test. In 1976, Richards was denied entry into the U.S. Open because she possessed XY chromosomes. Richards sued the United States Tennis Association for violation of the New York Civil Rights Act, and the New York Supreme Court held in her favor. According to the Court, “this person is now female,” and requiring Richards to pass a chromosome test was “grossly unfair, discriminatory and inequitable, and violative of her rights.”
The Richards case cracked open the door for transgender participation in sports. Largely due to the continuing controversy surrounding the question of competitive equity, however, sports organizations were unable (or unwilling) to come up with viable, consistent standards for permitting transgender athletes to participate in sports throughout the remainder of the 20th century.
The Pendulum Swings Forward
The trend towards allowing athletes to compete in accordance with their gender identity began with the International Olympic Committee (IOC), which adopted a policy known as the “Stockholm Consensus on Sex Reassignment in Sports” in 2003. The Stockholm Consensus recommended that individuals undergoing sex reassignment be permitted to participate in sports in accordance with their reassigned sex if (1) appropriate anatomical changes have been completed, (2) legal recognition of the assigned sex has been conferred, and (3) appropriate hormonal therapy has been administered long enough to minimize gender-related advantages of the assigned sex. The Stockholm Consensus became a model for the adoption of policies by international sports federations and other elite sports organizations, including the Ladies Professional Golf Association and the Women’s Tennis Association.
In 2015, the IOC modified the Stockholm Consensus recommendations to provide a clearer avenue for transgender athletes to compete. Acknowledging that legal recognition of gender can be difficult in countries in which gender transition is not legal, these guidelines only require trans female athletes to declare their gender identity (and maintain it for four years). The new guidelines require trans female athletes to demonstrate a testosterone level of less than 10 nanomoles per liter for at least one year prior to competing in women’s events and maintain this level throughout their period of eligibility. The requirement of anatomical changes was also removed from the IOC’s recommendations.
Soon afterwards, the National Collegiate Athletics Association (NCAA) undertook a study of transgender participation in intercollegiate sports, which culminated in the issuance of best practices and policies for inclusion of transgender student-athletes in 2011. Among other things, the NCAA policy allows a trans female athlete to compete in intercollegiate sports after one year of testosterone suppression therapy.
At the high school level, state high school athletic associations also began to provide avenues for transgender students to participate in interscholastic sports. Washington was the first state to do so by issuing a policy in 2007 allowing students to compete in accordance with their gender identity. While the procedures which must be followed differ state-by-state, by 2017, 35 state high school athletic associations adopted policies allowing students to participate in interscholastic sports in accordance with their gender identity.
Is the Pendulum Swinging Back?
This trend towards allowing athletes to compete in accordance with their gender identity may be short-lived. Recent developments within the Olympic Movement, the federal government, and state legislation indicate that the pendulum may be shifting in the other direction.
The IOC guidelines requiring trans female athletes to demonstrate a testosterone level of less than 10 nanomoles per liter have been controversial. Because women’s testosterone levels tend to range between 0.12 and 1.79 nanomoles per liter and men’s are typically between 7.7 and 29.4, many have argued that the new guidelines provide an unfair advantage to trans female athletes. In order to strike a balance between inclusion of transgender athletes and the argument that the IOC guidelines are unfair, the IOC was expected to recommend halving the 10 nanomoles per liter guidelines prior to the 2020 Olympic Games. The decision has been delayed, but it is possible, if not probable, that more stringent guidelines will soon be introduced.
The policy of the Connecticut Interscholastic Athletic Conference (CIAC) which allows transgender athletes to compete in accordance with their gender identity is also under attack. This past February, three students sued the CIAC in federal court, alleging that its policy violates Title IX. And in May, the U.S. Education Department’s Office of Civil Rights (OCR) issued a ruling essentially agreeing that the policy violates Title IX by denying athletic benefits and opportunities to female student-athletes. The ruling also stated that the OCR may seek to withhold federal funding to Connecticut schools because of this policy.
Perhaps most significantly, in March of this year, a law was enacted in Idaho which provides that “athletic teams or sports designated for females, women, or girls shall not be open to students of the male sex.” Any dispute about an athlete’s gender can only be resolved by examining “the student’s reproductive anatomy, genetic makeup, or normal endogenously 19 produced testosterone levels.” This law marks one of the first times, if not the first time, that a legislative body in this country has enacted a law specifically addressing participation in sports by transgender individuals. At least one other state, Tennessee, has proposed legislation seeking to restrict the ability of transgender athletes to compete in high school sports.
Conclusion
The fate of OCR’s ruling, as well as Idaho’s law, is far from clear. The American Civil Liberties Union and transgender advocacy organizations are vigorously arguing that these restrictions on the rights of transgender athletes violate civil rights laws, including the U.S. Constitution and Title IX. In addition, in the face of demands that it ban Idaho from hosting NCAA basketball games, the NCAA announced that last week that it will review Idaho’s law in August. It seems clear, however, that a movement to reverse the pendulum allowing transgender athletes the right to compete on the basis of their gender identity is underway.
Libba Galloway is Assistant Professor of Practice and Director of the Business Law Program at Stetson University’s School of Business Administration.
References
Associated Press. (2020, June 11). NCAA says it will review Idaho’s transgender law in August. Retrieved from https://www.espn.com/mens-college-basketball/story/_/id/29298785/ncaa-says-review-idaho-transgender-law-august
Associated Press. (2020, March 4). IOC to publish transgender guidelines after Tokyo Games. Retrieved from https://www.espn.com/olympics/story/_/id/28835943/ioc-publish-transgender-guidelines-tokyo-games
Evans, J. (2017, April 4). Ten years on, WIAA’s transgender policy keeps conversation going. Retrieved from https://www.seattletimes.com/sports/high-school/ten-years-on-wiaas-transgender-policy-keeps-conversation-going/
International Olympic Committee. IOC Consensus Meeting on Sex Reassignment and Hyperandrogenism, November 2015. Retrieved from https://stillmed.olympic.org/Documents/Commissions_PDFfiles/Medical_commission/2015-11_ioc_consensus_meeting_on_sex_reassignment_and_hyperandrogenism-en.pdf
International Olympic Committee. Statement of the Stockholm consensus on sex reassignment in sports. Retrieved from https://www.olympic.org/news/ioc-approves-consensus-with-regard-to-athletes-who-have-changed-sex
Levenson, M. and Vigdor, N. (2020, May 29). Inclusion of Transgender Student-Athletes Violates Title IX, Trump Administration Says. Retrieved from https://www.nytimes.com/2020/05/29/us/connecticut-transgender-student-athletes.html
National Collegiate Athletic Association. NCAA Inclusion of Transgender Student-Athletes. Retrieved from https://www.ncaa.org/sites/default/files/Transgender_Handbook_2011_Final.pdf
Richards v. United States Tennis Assn., 93 Misc. 2d 713, 400 N.Y.S. 2d 267 (1977)
Rose, A. and Silverman, H. (2020, March 31). Idaho governor signs two bills that limit the rights of transgender people. Retrieved from https://www.cnn.com/2020/03/31/us/idaho-transgender-bills/index.html
Ross, M. (2020, March 27). Tennessee House Bill 1572 Proposes High School Athletes Must Compete Based on Gender Assigned on Birth Certificate. Retrieved from http://www.sportslitigationalert.com/archive/004006.php
TransAthlete.com, powered by @thechrismosier. K-12 Policies. Retrieved from https://www.transathlete.com/
