Dilemma of Competitive Equality: Transgender vs Cisgender Athletes in Women's International Sports Competition
Article Sidebar
Published:
Oct 27, 2023
Keywords:
Discrimination, Fairness, Human Rights, International Sports Competition, Transgender.
Main Article Content
Abstract
This research aims to solve the human rights issue of the participation of transgender female athletes in international sports competitions in the women's division. The existence of transgender female athletes yields two perspectives: inclusivity as a human right for transgender female athletes and unfair competition for cisgender female athletes. This issue occurs due to the physiological advantages possessed by a transgender female athlete from the high level of testosterone they have, which creates unfairness in sports competition for cisgender female athletes, and the policies of international sports organizations that exclude the participation of transgender female athletes who have experienced puberty to take part in international sports competitions. Several controversial cases have sparked debate in the international community, such as the Tiffany Newel case in the running competition and the Lia Thomas case in the swimming competition; both are female transgender athletes who won sports competitions in the women's division. Although a transgender individual already has inherent human rights regulated through international law, these rights could not be a basis that overrides the rights and freedoms of other people. In this case, the right to equal and safe competition for cisgender women. The solution to this problem is to develop an 'open category' which aims to ensure the participation of all world athletes in sports competitions regardless of gender or gender identity.
Article Details
How to Cite
Raden, M. D. (2023). Dilemma of Competitive Equality: Transgender vs Cisgender Athletes in Women’s International Sports Competition. Padjadjaran Journal of International Law, 7(2), 215 - 233. https://doi.org/10.23920/pjil.v7i2.1379
Section
Articles
This work is licensed under a Creative Commons Attribution 4.0 International License.
References
Books
Davidson, Scott. Human Rights. Buckingham: Open University Press, 1993.
Lerner, Natan. Group Rights and Discrimination in International Law Second Edition. Kluwer Law International, 2003. Google Books, https://books.google.co.id/books?id=t0VJmJg1kCMC&printsec=frontcover#v=onepage&q&f=false.
Journal
Cviklová, Lucie, "Advancement of Human Rights Standards for LGBT People through the Perspective of International Human Rights Law." Journal of Comparative Research in Anthropology and Sociology, Vol. 3, No. 2, 2012, pp. 45-60. Central and Eastern European Online Library, https://www.ceeol.com/search/article-detail?id=58276. Accessed 25 May 2023.
Davendra, Nyoman Krisnanta. "Eksistensi Hukum Internasional Dalam Penerapan Hak Asasi Manusia." Ganesha Law Review, Vol. 4, No. 1, 1 May 2022, pp. 1-10. https://doi.org/10.23887/glr.v4i1.1497. Accessed 21 May 2023.
Ficsher, Mia and Jennifer McClearen. “Transgender Athletes and the Queer Art of Athletic Failure.” Communication & Sport, vol. 8, no. 2, April 2020, pp. 147-167. Sage Journals, https://doi-org.unpad.idm.oclc.org/10.1177/2167479518823207. Accessed 18 June 2023.
Harper, Joanna, Martinez-Patino, Maria-Jose, Pigozzi, Fabio MD, Pitsiladis, Yannis “Implications of a Third Gender for Elite Sports.” Current Sports Medicine Reports Vol. 17, No. 2, pp. 42-44. February 2018. Current Sports Medicine Reports, 10.1249/JSR.0000000000000455. Accessed 23 June 2023.
Ibhawoh, Bonny. "Human Rights for Some: Universal Human Rights, Sexual Minorities, and The Exclusionary Impulse." International Journal, Vol. 69, No. 4, 22 August 2014, pp. 612-622. Sage Journals, https://doi.org/10.1177/0020702014544885. Accessed 24 May 2023.
Ingram, Benjamin James and Thomas, Connie Lynn “Transgender Policy in Sport, A Review of Current Policy and Commentary of the Challenges of Policy Creation.” Current Sports Medicine Reports, vol. 18, no. 6, June 2019, pp. 239-247. Current Sports Medicine Reports, 10.1249/JSR.0000000000000605. Accessed 21 June 2023.
Marian, Brindusa. "The Dualist and Monist Theories. International Laws Comprehension of these theories." Curentul Juridic, The Juridical Current, Le Courant Juridique, vol. 1, 2007, pp. 16-27. http://revcurentjur.ro/old/arhiva/attachments_200712/recjurid071_22F.pdf. Accessed 23 June 2023.
Marks, Suzanne M. "Global Recognition of Human Rights for Lesbian, Gay, Bisexual, and Transgender People." Health and human rights, Vol. 9, No. 1, 31 May 2017, pp. 33-42. National Library of Medicine, https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5451102/. Accessed 23 May 2023.
Pitsiladis, Yannis, Joanna Harper, Jonathan Ospina Betancurt, Maria-Jose Martinez-Patino, Attilio Parisi, Guan Wang, and Fabio Pigozzi. "Beyond fairness: The Biology of Inclusion for Transgender and Intersex Athletes." Current Sports Medicine Reports, Vol. 15, No. 6, 2016, pp. 386-388. Current Sports Medicine Reports, 10.1249/JSR.0000000000000314. Accessed 30 May 2023.
Reynolds, Allie and Hamidian Jahromi. “Transgender Athletes in Sports Competitions: How Policy Measures Can Be More Inclusive and Fairer to All.” Frontiers in Sports and Active Living, vol. 3, no. 704178, 14 July 2020, pp. 1-4. Frontiers, https://doi.org/10.3389/fspor.2021.704178. Accessed 21 June 2023.
Legal Documents
Case Concerning the IAAF's Decision to Enact the Eligibility Regulations for the Female Classification (Athletes with Differences of Sex Development) (Mokgadi Caster Semenya v. International Association of Athletics Federations), Decision of 30 April 2019, [CAS 2018/O/5794] The Court of Arbitration for Sport.
Case Concerning a Challenge to the Validity of the IAAF Regulations Governing Eligibility of Females with Hyperandrogenism to Compete in Women's Competition (Dutee Chand v. Athletics Federation of India & The International Association of Athletics Federations), Decision of 24 July 2015, [CAS 2014/A/3759] The Court of Arbitration for Sport.
Eligibility Regulations for Transgender Athletes, 23 March 2023, World Athletics (entered into force 31 March 2023).
Explanatory Notes IAAF Eligibility Regulations for the Female Classification.
Framework on Fairness, Inclusion, and Non-Discrimination on the Basis of Gender Identity and Sex Variations, by the International Olympic Committee, 2021.
Fundamental Principles of Olympism.
Human rights, sexual orientation and gender identity, United Nations Human Rights Council, UN Doc. A/HRC/RES/27/32 (2014).
International Covenant on Civil and Political Rights, 19 December 1966, 999 U.N.T.S. 171, 6 I.L.M. 368 (entered into force 23 March 1976) [ICCPR].
International Commission of Jurists (ICJ), Yogyakarta Principles - Principles on the application of international human rights law in relation to sexual orientation and gender identity, March 2007, available at: https://www.refworld.org/docid/48244e602.html [The Yogyakarta Principles].
Policy on Eligibility for The Men’s and Women’s Competition Categories, 18 June 2022, FINA, (entered into force 22 June 2022).
Sports and Human Rights, Overview from A CAS Perspective, 16 April 2021.
Universal Declaration of Human Rights, GA Res. 217 (III), UN Doc. A/810 (1948).
Other Documents
Brassil, Gillian R. and Longman, Jeré. "Who Should Compete in Women’s Sports? There Are ‘Two Almost Irreconcilable Positions’." The New York Times, 18 August 2020, https://www.nytimes.com/2020/08/18/sports/transgender-athletes-womens-sports-idaho.html. Accessed 21 May 2023.
Council of Europe. “LGBT+.” Council of Europe, Gender Matters, https://www.coe.int/en/web/gender-matters/lgbt-. Accessed 18 June 2023.
Fahey, Ciaran. "World Swimming Bans Transgender Athletes from Women's Events." AP News, 23 June 2022, https://apnews.com/article/transgender-swimmers-new-rules-fina-world-governing-body-c17e99d3121fa964336458b57ae266f7. Accessed 18 June 2023.
Kumar, Abhishek. "Inclusiveness or unfair advantage? Debate over trans athletes in sports intensifies." Wion, 26 June 2022, https://www.wionews.com/sports/incusiveness-or-unfair-advantage-debate-over-trans-athletes-in-sports-intensifies-492057. Accessed 21 May 2023.
Ortega, Rodrigo Perez. "World Athletics Banned Transgender Women from Competing. Does Science Support the Rule?" Science, 4 April 2023, https://www.science.org/content/article/world-athletics-banned-transgender-women-competing-does-science-support-rule. Accessed 21 May 2023.
Powell, Michael. “What Lia Thomas Could Mean for Women's Elite Sports” The New York Times, 29 May 2022, https://www.nytimes.com/2022/05/29/us/lia-thomas-women-sports.html. Accessed 18 June 2023.
Schemmel, Alec. "Trans Runner Wins another Women's Race One Year after Breaking Record, Angering Critics." abc15 News, 28 February 2023, https://wpde.com/news/nation-world/trans-runner-wins-another-womens-race-one-year-after-breaking-record-angering-critics. Accessed 21 May 2023.
Statista Research Department, "Share of People Identifying as Transgender, Gender Fluid, Non-Binary, or Other Ways Worldwide as of 2021, by Country." Statista, 9 January 2023, https://www.statista.com/statistics/1269778/gender-identity-worldwide-country/. Accessed 21 May 2023.
Watson, Stephanie. "Cisgender." WebMD, 13 November 2023, https://www.webmd.com/a-to-z-guides/cisgender-overview. Accessed 21 May 2023.
Davidson, Scott. Human Rights. Buckingham: Open University Press, 1993.
Lerner, Natan. Group Rights and Discrimination in International Law Second Edition. Kluwer Law International, 2003. Google Books, https://books.google.co.id/books?id=t0VJmJg1kCMC&printsec=frontcover#v=onepage&q&f=false.
Journal
Cviklová, Lucie, "Advancement of Human Rights Standards for LGBT People through the Perspective of International Human Rights Law." Journal of Comparative Research in Anthropology and Sociology, Vol. 3, No. 2, 2012, pp. 45-60. Central and Eastern European Online Library, https://www.ceeol.com/search/article-detail?id=58276. Accessed 25 May 2023.
Davendra, Nyoman Krisnanta. "Eksistensi Hukum Internasional Dalam Penerapan Hak Asasi Manusia." Ganesha Law Review, Vol. 4, No. 1, 1 May 2022, pp. 1-10. https://doi.org/10.23887/glr.v4i1.1497. Accessed 21 May 2023.
Ficsher, Mia and Jennifer McClearen. “Transgender Athletes and the Queer Art of Athletic Failure.” Communication & Sport, vol. 8, no. 2, April 2020, pp. 147-167. Sage Journals, https://doi-org.unpad.idm.oclc.org/10.1177/2167479518823207. Accessed 18 June 2023.
Harper, Joanna, Martinez-Patino, Maria-Jose, Pigozzi, Fabio MD, Pitsiladis, Yannis “Implications of a Third Gender for Elite Sports.” Current Sports Medicine Reports Vol. 17, No. 2, pp. 42-44. February 2018. Current Sports Medicine Reports, 10.1249/JSR.0000000000000455. Accessed 23 June 2023.
Ibhawoh, Bonny. "Human Rights for Some: Universal Human Rights, Sexual Minorities, and The Exclusionary Impulse." International Journal, Vol. 69, No. 4, 22 August 2014, pp. 612-622. Sage Journals, https://doi.org/10.1177/0020702014544885. Accessed 24 May 2023.
Ingram, Benjamin James and Thomas, Connie Lynn “Transgender Policy in Sport, A Review of Current Policy and Commentary of the Challenges of Policy Creation.” Current Sports Medicine Reports, vol. 18, no. 6, June 2019, pp. 239-247. Current Sports Medicine Reports, 10.1249/JSR.0000000000000605. Accessed 21 June 2023.
Marian, Brindusa. "The Dualist and Monist Theories. International Laws Comprehension of these theories." Curentul Juridic, The Juridical Current, Le Courant Juridique, vol. 1, 2007, pp. 16-27. http://revcurentjur.ro/old/arhiva/attachments_200712/recjurid071_22F.pdf. Accessed 23 June 2023.
Marks, Suzanne M. "Global Recognition of Human Rights for Lesbian, Gay, Bisexual, and Transgender People." Health and human rights, Vol. 9, No. 1, 31 May 2017, pp. 33-42. National Library of Medicine, https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5451102/. Accessed 23 May 2023.
Pitsiladis, Yannis, Joanna Harper, Jonathan Ospina Betancurt, Maria-Jose Martinez-Patino, Attilio Parisi, Guan Wang, and Fabio Pigozzi. "Beyond fairness: The Biology of Inclusion for Transgender and Intersex Athletes." Current Sports Medicine Reports, Vol. 15, No. 6, 2016, pp. 386-388. Current Sports Medicine Reports, 10.1249/JSR.0000000000000314. Accessed 30 May 2023.
Reynolds, Allie and Hamidian Jahromi. “Transgender Athletes in Sports Competitions: How Policy Measures Can Be More Inclusive and Fairer to All.” Frontiers in Sports and Active Living, vol. 3, no. 704178, 14 July 2020, pp. 1-4. Frontiers, https://doi.org/10.3389/fspor.2021.704178. Accessed 21 June 2023.
Legal Documents
Case Concerning the IAAF's Decision to Enact the Eligibility Regulations for the Female Classification (Athletes with Differences of Sex Development) (Mokgadi Caster Semenya v. International Association of Athletics Federations), Decision of 30 April 2019, [CAS 2018/O/5794] The Court of Arbitration for Sport.
Case Concerning a Challenge to the Validity of the IAAF Regulations Governing Eligibility of Females with Hyperandrogenism to Compete in Women's Competition (Dutee Chand v. Athletics Federation of India & The International Association of Athletics Federations), Decision of 24 July 2015, [CAS 2014/A/3759] The Court of Arbitration for Sport.
Eligibility Regulations for Transgender Athletes, 23 March 2023, World Athletics (entered into force 31 March 2023).
Explanatory Notes IAAF Eligibility Regulations for the Female Classification.
Framework on Fairness, Inclusion, and Non-Discrimination on the Basis of Gender Identity and Sex Variations, by the International Olympic Committee, 2021.
Fundamental Principles of Olympism.
Human rights, sexual orientation and gender identity, United Nations Human Rights Council, UN Doc. A/HRC/RES/27/32 (2014).
International Covenant on Civil and Political Rights, 19 December 1966, 999 U.N.T.S. 171, 6 I.L.M. 368 (entered into force 23 March 1976) [ICCPR].
International Commission of Jurists (ICJ), Yogyakarta Principles - Principles on the application of international human rights law in relation to sexual orientation and gender identity, March 2007, available at: https://www.refworld.org/docid/48244e602.html [The Yogyakarta Principles].
Policy on Eligibility for The Men’s and Women’s Competition Categories, 18 June 2022, FINA, (entered into force 22 June 2022).
Sports and Human Rights, Overview from A CAS Perspective, 16 April 2021.
Universal Declaration of Human Rights, GA Res. 217 (III), UN Doc. A/810 (1948).
Other Documents
Brassil, Gillian R. and Longman, Jeré. "Who Should Compete in Women’s Sports? There Are ‘Two Almost Irreconcilable Positions’." The New York Times, 18 August 2020, https://www.nytimes.com/2020/08/18/sports/transgender-athletes-womens-sports-idaho.html. Accessed 21 May 2023.
Council of Europe. “LGBT+.” Council of Europe, Gender Matters, https://www.coe.int/en/web/gender-matters/lgbt-. Accessed 18 June 2023.
Fahey, Ciaran. "World Swimming Bans Transgender Athletes from Women's Events." AP News, 23 June 2022, https://apnews.com/article/transgender-swimmers-new-rules-fina-world-governing-body-c17e99d3121fa964336458b57ae266f7. Accessed 18 June 2023.
Kumar, Abhishek. "Inclusiveness or unfair advantage? Debate over trans athletes in sports intensifies." Wion, 26 June 2022, https://www.wionews.com/sports/incusiveness-or-unfair-advantage-debate-over-trans-athletes-in-sports-intensifies-492057. Accessed 21 May 2023.
Ortega, Rodrigo Perez. "World Athletics Banned Transgender Women from Competing. Does Science Support the Rule?" Science, 4 April 2023, https://www.science.org/content/article/world-athletics-banned-transgender-women-competing-does-science-support-rule. Accessed 21 May 2023.
Powell, Michael. “What Lia Thomas Could Mean for Women's Elite Sports” The New York Times, 29 May 2022, https://www.nytimes.com/2022/05/29/us/lia-thomas-women-sports.html. Accessed 18 June 2023.
Schemmel, Alec. "Trans Runner Wins another Women's Race One Year after Breaking Record, Angering Critics." abc15 News, 28 February 2023, https://wpde.com/news/nation-world/trans-runner-wins-another-womens-race-one-year-after-breaking-record-angering-critics. Accessed 21 May 2023.
Statista Research Department, "Share of People Identifying as Transgender, Gender Fluid, Non-Binary, or Other Ways Worldwide as of 2021, by Country." Statista, 9 January 2023, https://www.statista.com/statistics/1269778/gender-identity-worldwide-country/. Accessed 21 May 2023.
Watson, Stephanie. "Cisgender." WebMD, 13 November 2023, https://www.webmd.com/a-to-z-guides/cisgender-overview. Accessed 21 May 2023.