Abstract
espite the reality of intersex individuals whose biological markers do not necessarily all point towards a traditional binary understanding of either male or female, the vast majority of sports divide competition into categories based on a binary notion of biological sex and develop policies and regulations to police the divide. In so doing, sports governing bodies (SGBs) adopt an imperfect model of biological sex in order to serve their particular purposes, which, typically, will include protecting the fundamental sporting value of fair competition. Yet, one potential consequence of enforcing such an approach would seem to be the exclusion or marginalization of individuals whose biological development does not t within the binary model, whether due to genetics or through a choice to undergo medical intervention to better represent a chosen gender identity. Any such exclusion or marginalization will inevitably tend to undermine another fundamental value of sport, that of inclusivity. In the context of those with differences of sex development, SGBs appear to be faced with a dif cult problem: dealing with a con ict between two fundamental values of sport. Different approaches to this problem have been suggested, with some academics proposing that sports organisations, in general, ought to prioritise fairness above, while others suggest the need to `balance' competing values or even to prioritise inclusion over fairness. However, it is argued that any of these approaches are, in principle, justi able as any sport should be free to prioritise or balance its own values. What seems
suggested, with some academics proposing that sports organisations, in general, ought to prioritise fairness above, while others suggest the need to `balance' competing values or even to prioritise inclusion over fairness. However, it is argued that any of these approaches are, in principle, justi able as any sport should be free to prioritise or balance its own values. What seems more important for any SGB is the need for a rational and transparent justi cation of regulations that pursue fair competition at the expense of inclusivity. Furthermore, where fair competition and inclusivity are fundamental values, any such justi cation would seem to demand adherence to some basic norms. First, the regulations should be built on (and articulate) a consistent and principled basis of what `fair competition' means in a particular sport. Second, any regulations should only exclude or restrict participation to the minimum degree necessary to achieve the sense of fair competition so articulated. Third, SGBs should be transparent about what their values are and where their priorities lie so that participants and other stakeholders are able to make an informed choice as to whether they wish to participate in, support, or be associated with a particular sport. With reference to the adoption of the Eligibility Regulations for Athletes with Differences of Sex Development (the `DSD Regulations') by the International Association of Athletic Federations (IAAF), this article seeks to evaluate whether the approach of the IAAF satis ed these basic requirements. Keywords:sport; fair competition; inclusion; exclusion; rational; regulation; sex; gender 1. Introduction Over the last few years there have been a proliferation of regulations introduced across sports placing restrictions on the participation of intersex 1 individuals and trans women in female sport, typically appealing to ideals around the concept of fair competition and reinforcing a traditional divide based on ideas of binary sexual categorization. Some of the higher pro le examples include: the DSD Regulations (2019) and Eligibility Regulations for Transgender Athletes (2021) in Athletics, the `Transgender Guidelines' in rugby union (2020) and FINA's policy on Eligibility to Compete in the Men's and Women's categories in swimming (2022). Philosophies2023,8, 28.
fair competition and reinforcing a traditional divide based on ideas of binary sexual categorization. Some of the higher pro le examples include: the DSD Regulations (2019) and Eligibility Regulations for Transgender Athletes (2021) in Athletics, the `Transgender Guidelines' in rugby union (2020) and FINA's policy on Eligibility to Compete in the Men's and Women's categories in swimming (2022). Philosophies2023,8, 28.
Philosophies2023,8, 28 2 of 23 The debate around the introduction of such restrictions has generated strong views across sports and more widely, both for and against. Perhaps the most obvious example being the support for, and concerns surrounding, the introduction of the DSD Regulations in Athletics, which have been described as `one of the most complex [topics] in sport' (Anderson and Knox, 2020 [3] (p. 595)). 2 What has become clear is that contrasting perspectives reveal a tension between what most would agree are two important sporting values: a concern for fair competition between participants and sport as an inclusive practice, something accessible to all with the power to bring people together. Although not a complete argument, for af rmation of the current importance of both to sport, one need look no further than the fourth fundamental principle of Olympism encapsulated in the Olympic Charter: `The practice of sport is a human right. Every individual must have the possibility of practicing sport, without discrimination of any kind and in the Olympic spirit, which requires mutual understanding with spirit of friendship, solidarity, and fair play' (IOC, 2021 [4]). As will become clear, although there may well be different perspectives on the relative importance of these values in sport, this article proceeds on the assumption that they are both fundamental sporting values. Whilst it might be unusual to consider the justi cations for eligibility restrictions for both intersex individuals and trans women in the same article (given commonly understood differences in their situations), there are reasons why it may be helpful to do so. First, as will be elaborated in Section, central to the debate around eligibility of both intersex athletes and trans women to a female category is the generally accepted proposition that genetically `typical' males have a disproportionately large athletic advantage over genetically `typical' females. 3 In other words, through the lens of fair competition (as a reason for restricting the participation of intersex and trans women in female sport), the starting point for regulation is the same. Second, something that can be forgotten, is the possibility of individuals identifying
proposition that genetically `typical' males have a disproportionately large athletic advantage over genetically `typical' females. 3 In other words, through the lens of fair competition (as a reason for restricting the participation of intersex and trans women in female sport), the starting point for regulation is the same. Second, something that can be forgotten, is the possibility of individuals identifying (or be considered by others) as both intersex and transgender. 4 For these reasons, it seems appropriate to address what are very similar concerns surrounding how SGBs might approach dealing with the competing values of inclusion and fair competition. With these themes in mind, consideration is given to the current literature and an argument advanced that any individual sport (subject to external legal restrictions) should be free to prioritise values as it wishes. However, in a context where fairness and inclusion are both valued, it is important that any eligibility regulations are transparent and rationally justi able(Section). Section and rational justi cations caused by the historic and largely unquestioned dominance of a binary, imperfect, model of sex categorisation in sport. Section overcome these barriers and to deal (as far as possible) with the tensions that exist between fair competition and inclusion, any rational justi cation relies on a clear and consistent sense of fair competition, one that embraces the concept of `proportionate inequalities'in priorityto a binary system of categorisation. Finally, in Sections8, the article focuses on the DSD Regulations in athletics as a concrete example of regulations introduced to reinforce a binary divide and considers the extent to which a sense of proportionate inequalities underpins the current justi cation of World Athletics. 5 Although the second half of the article is, therefore, directed towards the issue of how the tension between fairness and inclusion has been handled in the context of intersex athletes, it is suggested that a similar framework (which adopts the concept of proportionate inequalities) could be used to evaluate the necessity and rational justi cation for regulations that restrict the participation of trans women in a particular sport. This is a point highlighted in the conclusion and
between fairness and inclusion has been handled in the context of intersex athletes, it is suggested that a similar framework (which adopts the concept of proportionate inequalities) could be used to evaluate the necessity and rational justi cation for regulations that restrict the participation of trans women in a particular sport. This is a point highlighted in the conclusion and something that might be the subject of further research.
Philosophies2023,8, 28 3 of 23 2. Approaches to Dealing with the Con ict between Fairness and Inclusivity Assuming that fair competition and inclusion are both valued, the question is then how to deal with these values when they appear to con ict. Broadly, the current literature seems to suggest three possible approaches. First is the idea that any sport needs to consider competing values and weigh them against each other to determine the appropriate response. Devine, for example, suggests that whilst fair competition is `a central animating value of modern sport,' it is not the `overriding' sporting value and that sports governing bodies (SGBs) need to consider and `balance' any competing values within their sport [5] (p. 165). Likewise, Teetzel has suggested the need for SGBs to `weigh the desire for fairness with other considerations' [6] (p. 118). However, it is important to recognise that such an approach does not prescribe an outcome; it does not suggest that a balance must be found, just that competing values need to be recognised and their `weight' assessed. There is evidence that this kind of balancing approach has found favour with some organisations with signi cant in uence in the sports governance structure. For example, the UK's Sport Councils' guidance on transgender inclusion, whilst recognising that an ultimate balance between inclusion, [safety] and fairness might not be possible for many sports; an exercise weighing competing values needs to take place in order that individual sports determine their priorities [7] (p. 5). At the pinnacle of the sporting pyramid, the IOC's framework on fairness and inclusion also seems to recognise the need for individual SGBs to weigh competing values in deciding whether to implement eligibility regulations and what form they take [8]. However, it should be noted that the UK's Sports Councils and the IOC are not organisations that govern individual sports themselves and do not have to actually make the decisions. Pike seems to identify an underlying concern here: that a balancing approach may not actually provide much practical help in deciding which value an SGB should prioritise. He argues that the practical
should be noted that the UK's Sports Councils and the IOC are not organisations that govern individual sports themselves and do not have to actually make the decisions. Pike seems to identify an underlying concern here: that a balancing approach may not actually provide much practical help in deciding which value an SGB should prioritise. He argues that the practical consequence of such an approach would seem to be a type of (not very helpful) `cost/bene t' analysis, which he criticises on three grounds: (1) that inclusion and fairness (and safety) are not comparable `goods'; (2) that all SGBs have basic duties to players (primarily) in respect of fairness (and safety), which they are not entitled to trade off in pursuit of inclusivity; and (3) there is a lack of transparency because SGBs can just hide behind a balancing exercise to justify any conclusion [9] (p. 159). Not surprisingly, given his criticism, Pike advocates a different approach, one that recognises the lexical priority of fairness (and safety) above inclusion. Such prioritisation is justi ed on the basis that each sport owes special obligations to its players and more immediate stakeholders before any obligation to include others or obligations to be inclusive towards society as a whole [9]. Whilst Pike's main focus is on the need to ensure the safety of players in rugby, the elevation of fairness above inclusion in general, seems to re ect a perspective that the most fundamental value to any sport (contact and non-contact) is one of fair opportunity between participants. Sailors takes it further by suggesting that fairness might even be a prerequisite for the existence of sport (Sailors, 2020 [10] (p. 421)), although this is a perspective questioned by Gleaves and Lehrbach [11], a view that will be returned to. The appeal of Pike's argument is in the general assertion that SGBs have some basic duties which they are not entitled to ignore when regulating their sport and not entitled to `trade off.' If accepted, this duty-based argument provides an overriding reason for introducing eligibility restrictions and in some sense, a straightforward framework from
view that will be returned to. The appeal of Pike's argument is in the general assertion that SGBs have some basic duties which they are not entitled to ignore when regulating their sport and not entitled to `trade off.' If accepted, this duty-based argument provides an overriding reason for introducing eligibility restrictions and in some sense, a straightforward framework from which to address the problem. At least in the context of safety in contact sports and the potential harm to all current and future participants, this basic argument appears dif cult to ignore. Anyone who accepts the idea that we have a moral obligation not to cause unnecessary harm to others would nd it dif cult to justify the imposition of sporting rules that unnecessarily put participants at risk of injury. Furthermore, it seems that a precautionary approach to such risks might be justi able. Broadly speaking, such a position also re ects and underpins common legal duties concerning liability for injury caused due to negligence.
Philosophies2023,8, 28 4 of 23 Despite the appeal of this duty-based argument, one should be mindful of the detail of its application in a sporting context. Suits famously claimed that all games, including sports, are `voluntary attempts to overcome unnecessary obstacles' (Suits [12] p. 55). Assuming this encapsulates a fundamental aspect of all sports, it does raise the question of what, if anything, can truly be deemed `necessary' to any sport, and if it can, what sense of necessary is meant. In respect of rugby, Pike recognises the problem of a tension between a duty to protect the safety of players and retaining essential aspects of what he considers rugby to be, such as tackling and scrums. Accordingly, he de nes the duty as keeping the sport tolerably safe, without having to alter what is considered the essence of rugby [9] (p. 163). Of course, this still begs the question: what is the essence of rugby? The split between rugby union and rugby league is evidence that this is a subjective question; rugby league retains scrums in name only, but few would question whether it is a form of rugby. Is tag rugby so different that it could not be recognised as rugby? What changes to the laws around tackling and scrums are possible before rugby union becomes a different game? Perhaps there is something about the collisions involved in tackling that all current participants and stakeholders value so highly that it cannot be omitted, but to call tackling essential seems to mask the possibility that, however unlikely at present, perspectives might change. Perhaps developing research and increased awareness of the dangers of high impact collisions might devalue such practices to the point where their place in the game is questioned internally or the game is forced to remove it due to external regulation. It should be made clear that this is not an argument that rugby should be tackle-free or risk-free; rather, it presents an alternative view of tackling. Rather than it being `essential' to rugby, it might be better described as a highly valued practice, the meaning and
questioned internally or the game is forced to remove it due to external regulation. It should be made clear that this is not an argument that rugby should be tackle-free or risk-free; rather, it presents an alternative view of tackling. Rather than it being `essential' to rugby, it might be better described as a highly valued practice, the meaning and the value of which may change. In permitting and regulating tackling, World Rugby inevitably trades off some degree of safety in order to include the practice of tackling in some form. Furthermore, the fact that the rules of rugby place no restrictions on the size and weight of players (allowing, for example, 130 kg forwards to collide with 80 kg backs) suggests that safety concerns can be (and are) traded off against restrictions on inclusion. Applying the principle of lexical priority does not appear to get away from the problem of trading values, it just presents it in a different context. Coming back to fair competition (and since we are not concerned with unnecessary physical harm), it is not quite as easy to see why fair competition should automatically override inclusion. Although Pike points to the IOC consensus statement on sex reassign- ment and hyperandrogenism, which highlights fair competition as an overriding sporting objective (IOC Consensus Statement 2015 [13]), that is a particular perspective adopted by the IOC, which may or may not be accepted by different sports. In fact, it is arguably one that the IOC has itself questioned in its recent framework on fairness and inclusion ((The 2021 Framework) (IOC, 2021) [8]), which recognises the choice of SGBs to introduce eligibility criteria, and even then, the need to base such criteria on robust scienti c evidence of disproportionate competitive advantage [8] (Sections). Such a position is also re ected in the joint position statement of the International Federation of Sports Medicine (FIMS) and the European Federation of Sports Medicine Associations (EFSMA) (Pigozzi et al., 2022 [14]). Furthermore, whilst SGBs will typically have quali ed legal duties not to discriminate on grounds such as gender or birth traits, and,
competitive advantage [8] (Sections). Such a position is also re ected in the joint position statement of the International Federation of Sports Medicine (FIMS) and the European Federation of Sports Medicine Associations (EFSMA) (Pigozzi et al., 2022 [14]). Furthermore, whilst SGBs will typically have quali ed legal duties not to discriminate on grounds such as gender or birth traits, and, possibly, to protect the rights of athletes to a fair competition in the context of anti-doping regulations [15] (para. 166), they do not appear to be under a duty to ensure fairness with regards to natural genetic pre-dispositions. As such, it appears less easy to accept the protection of fair competition as an overriding ethical (or legal duty) of all SGBs. The 2015 consensus statement (and the more recent 2021 Framework) recognised that the objective of fair competition is limited by the need for eligibility restrictions to be necessary and proportionate, suggesting that the pursuit of fair competition is quali ed, and that fairness will not, and should not, always trump inclusion. The focus on necessity and proportionality provides a clear requirement to rationally justify any eligibility restrictions
Description
The article discusses the marginalization of intersex and trans women athletes in sports.