By Amelia Katherine Philips
Senior Editor, 2018-2019
Early in March, tennis legend Martina Navratilova, on her own personal website, released a statement intended to perhaps mitigate some of the damage that her editorial in the London Times caused in mid-February.[1] More specifically, Navratilova’s editorial commented on the eligibility of transgender women to compete in women’s athletics, constructing speculative, alarmist scenarios of men pretending to be women to secure easy wins, while opining on the supposedly inherent advantages of early testosterone development in trans women who have undergone hormone replacement therapy (HRT)—and then not exactly walking back those claims at all.[2] At the same time, Navratilova wrote of South African runner Caster Semenya’s latest challenge to the International Association of Athletics Federations (IAAF) at the Court of Arbitration for Sport, “I hope she wins.”[3] While the transphobia of Navratilova’s comments have gotten them considerable attention, they also bring to the forefront a case that may prove pivotal for gender regulations in sport generally.
Some explanation is necessary to illustrate how these two statements interact. Semenya has a long history with the IAAF over its gender regulations, from invasive gender verification testing following her IAAF gold medal in the 800 meters in 2009, to the recent challenge brought before the CAS over the IAAF’s latest regulations.[4] However, unlike the athletes Navritalova demonizes, Semenya is not transgender.[5] Her challenge is thus based upon rules that would require her and athletes like her to suppress their naturally elevated levels of testosterone, rather than based on any treatment such as HRT that trans athletes might undergo voluntarily.[6] This has been met with responses that have included human rights concerns, as United Nations Special Rapporteurs have argued in an open letter that “[t]he regulations reinforce negative stereotypes and stigma that women in the targeted category are not women – and that they. . . need to be ‘fixed’ through medically unnecessary treatment with negative health impacts.”[7]
With this in mind, consider the situation for trans women. In order for trans women to compete in many women’s sports events and leagues, organizations tend to impose a requirement that transgender women undergo some form of hormone replacement therapy (HRT) for a period of time. The International Olympic Committee (IOC) developed rules at a 2015 meeting to remove the surgery requirement for trans women to compete in women’s events that had been in place since 2003, and instead replaced it with a rule adopted in 2016 requiring simply that transgender athletes competing in women’s events have a testosterone level below a certain threshold, in this case 10 nanomoles per liter (nmol/L).[8] Some organizations, such as USA Powerlifting (USAPL), operate under IOC guidelines by virtue of being part of the International Powerlifting Federation (IPF), the governing body for the sport Navratilova claims presents the “biggest and most obvious advantage” where trans women are concerned. [9] USAPL’s president, Jack Maile, has claimed the guidelines permit discretion, however, and has prevented trans athletes from competing—as in the case of JayCee Cooper, a trans woman currently disallowed from competing in USAPL’s women’s division.[10]
Other organizations have adopted similar policies that allow trans women to compete in women’s sports, such as the National Women’s Hockey League (NWHL), which requires HRT but does not specify a particular level of testosterone aside from one “within typical limits of women athletes.”[11] Unfortunately, its northerly counterpart, the Canadian Women’s Hockey League (CWHL), announced late in March that it would be discontinuing operations at the beginning of May.[12] However, before its folding, the CWHL (whose Toronto Furies had Jessica Platt, a trans woman, on their roster), had been reported as using similar language to the NWHL (“typical female athlete”).[13] Even when not (explicitly) using the IOC guidelines, leagues and organizations seeking to include trans athletes within their competitions have still constructed reasonable standards.
More recently, however, the IOC has sought to restrict testosterone levels in women’s events even further, with regulations that would drop the ceiling from 10 nmol/L to 5.[14] Illustrating one of the many ways that Semenya’s case interacts with trans athletes, sports scientist Ross Tucker told The Guardian that the IAAF regulations being challenged by Semenya have also been set at 5 nmol/L, down from 10 previously, and that the IAAF’s change is “guided by the new IOC transgender policy.”[15] What’s more is that the IOC’s policy further lowering the testosterone threshold for trans athletes was proposed by Joanna Harper – who herself is trans, and a medical physicist studying the effects of transition on trans athletes, including herself.[16] Harper’s research and experience stands in stark contrast to the claims that trans women retain particular advantages after hormone therapy, but Harper also argues that the 10 nmol/L threshold was itself too high.[17] The CAS thus stands in a position to rule on regulations that will ultimately affect trans and non-trans athletes alike.
This position, in addition to being pivotal, is precarious. On one hand, we’ve seen arguments on Semenya’s behalf point to the policing of femininity, the human rights implications of forcing women to suppress their own hormones, and the like.[18] On the other, HRT’s effects are one of the strongest arguments being made in favor of trans women’s right to competition, resisting the stigma and misinformation spread about trans athletes. Harper, in the Washington Post, pointed to the exact same factors that Navratilova claimed gave trans women an innate advantage – muscle mass, bone density, and oxygen-carrying red blood cells – as things that directly suffer as a result of HRT (Harper also did this almost three years ahead of Navratilova’s editorial).[19] Katelyn Burns has also written on the subject, drawing from research such as Harper’s, her own lived experience, and the lived experiences of other trans women in athletics, to illustrate the real effects of HRT in athletic contexts.[20] Moreover, HRT is something that, in general (though not universally), trans individuals want – as the National Center for Transgender Equality found in its 2015 survey, “more than three-quarters (78%) of respondents wanted hormone therapy related to gender transition.”[21] This would of course be at odds with the goals of those arguing for Semenya’s human rights, and the general right to not be forced to suppress one’s own body to compete.
But while perspectives from trans advocates are often consistent, they are certainly not monolithic. One of the most vocal critics of Navratilova’s comments is Dr. Rachel McKinnon, a professor of philosophy at the College of Charleston who in October 2018 became the first trans woman to win a world championship in cycling.[22] Dr. McKinnon has also clashed not only with roundly transphobic perspectives such as Navratilova’s, but more common perspectives among trans athletes consistent with a pro-HRT stance. More specifically, while Jillian Bearden, another trans woman cyclist (and former teammate of McKinnon) generally agrees with rules designed to limit testosterone in trans women in the interest of fairness, McKinnon argues that such requirements violate the human rights of trans women.[23] This turns the above analysis on its head; such an argument tracks directly with the type of human rights argumentation made in favor of Semenya.
This is ultimately why the CAS is in such an important position, because there is so much at stake for athletes of all genders. There is, of course, the consideration of fairness in sports. Sports live and die by the notion of competitive equity, and this would explain why criticisms of comments such as Navratilova’s are rooted in correcting the science and proving that trans women on HRT are not at any particular advantage due to therapy – responding to the accusations of cheating with evidence of fairness. But there is also the consideration that as it is understood better that gender is more than biology, overreliance on biology can be harmful regardless of whether a person is trans or not. Gleeson and Brady in USA Today put it much more succinctly: “There’s the rub: How to reconcile science (blocking testosterone) with human rights (competing as you are).”[24]
The CAS is also in a particularly important position because previous cases brought before the tribunal have only shifted the IAAF’s focus, and have not produced what one might call a complete ruling on the issue. Indian sprinter Dutee Chand brought a similar challenge to the IAAF’s hormone regulations, which the CAS suspended for two years, requesting scientific evidence from the IAAF to support the regulations.[25] But after the CAS suspended the initial regulations, the IAAF’s new regulations continued to apply hormone thresholds to events that Semenya competed in while avoiding Chand’s.[26] This puts us back at square one, essentially, because it still leaves open the possibility on rulings on whether hormone thresholds are legitimate at all. (Moreover, as Martin Fritz Huber succinctly summarizes in detailing the factors in play in Semenya’s case, the IAAF has not had a great track record in these cases with producing solid scientific evidence.[27])
That brings us to where we are today: as of the time of this writing, the CAS decision was scheduled to be handed down by the end of March, before this article’s publication, but has since been postponed until the end of April, with the CAS stating that the final decision would be announced on May 1.[28] But even without the benefit of the decision itself just yet, it is clear that whatever decision the CAS makes in Semenya’s case will be felt throughout the sporting world. Should the CAS opt to suspend or reject the IAAF’s regulations, it might mark a victory for progressive understandings of gender and biology, but could easily spark further outrage on the subject of fair competition, and leave advocates of hormone-based regulations for trans athletes with even more questions about where to go from here.
[1] Martina Navratilova, Update on Recent Transgender Debate, Martina Navratilova, https://www.martinanavratilova.com/update-on-recent-transgender-debate [hereinafter Navratilova, Update]; Martina Navratilova (@Martina), Twitter (Mar. 2, 2019, 10:33 PM), https://twitter.com/Martina/status/1102094503048024064 (clarifying the date of the post); Martina Navratilova, The rules on trans athletes reward cheats and punish the innocent, The Times (Feb. 17, 2019, 12:01 AM), https://www.thetimes.co.uk/article/the-rules-on-trans-athletes-reward-cheats-and-punish-the-innocent-klsrq6h3x [hereinafter Navratilova, The rules on trans athletes].
[2] Navratilova, The rules on trans athletes, supra note 1; Navratilova, Update, supra note 1.
[3] Navratilova, The rules on trans athletes, supra note 1.
[4] Christopher Clarey, Gender Test After a Gold-Medal Finish, The N. Y. Times (Aug. 19, 2009) https://www.nytimes.com/2009/08/20/sports/20runner.html, Lynsey Chutel, Caster Semenya is forcing the sporting world—and South Africa—to rethink gender, Quartz Africa (Feb. 25, 2019) https://qz.com/africa/1558596/caster-semenya-challenges-world-athletics-gender-rules/.
[5] Here, it is carefully noted that there is much discussion about Semenya as an intersex athlete due to leaked testing results that were supposed to be confidential. See, e.g., Melissa Block, The Sensitive Question of Intersex Athletes, NPR (Aug. 16, 2016, 5:16 PM), https://www.npr.org/sections/thetorch/2016/08/16/490236620/south-african-star-raises-sensitive-questions-about-intersex-athletes; Lindsay Gibbs, The Importance Of Cheering For Caster Semenya, ThinkProgress (Aug. 18, 2016, 3:28 PM). This article, for space, time, and scope reasons, focuses on the reach of the CAS’s decision into issues facing trans athletes, but does not intend to erase or diminish the importance of discussions about gender regulations and intersex athletes in sports competitions. See, e.g. Murad Ahmed, Caster Semenya fights case against ‘flawed and hurtful’ rules, Financial Times (Feb. 21, 2019), https://www.ft.com/content/cd4e6374-35be-11e9-bd3a-8b2a211d90d5 (remarking on the potential “implications for intersex and transgender women across sport.”).
[6] Jere Longman, Caster Semenya Will Challenge Testosterone Rule in Court, The N. Y. Times (Jun. 18, 2018) https://www.nytimes.com/2018/06/18/sports/caster-semenya-iaaf-lawsuit.html. See infra note 20 and accompanying text.
[7] Letter from Dainius Pūras, United Nations Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, Nils Melzer, United Nations Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, and Ivana Radačić, United Nations Chair-Rapporteur of the Working Group on the issue of discrimination against women in law and in practice, to Sebastian Coe, President, International Association of Athletics Federations (Sep. 18, 2018), https://www.ohchr.org/Documents/Issues/Health/Letter_IAAF_Sept2018.pdf
[8] IOC rules transgender athletes can take part in Olympics without surgery, The Guardian (Jan. 24 2016 8:04 PM) https://www.theguardian.com/sport/2016/jan/25/ioc-rules-transgender-athletes-can-take-part-in-olympics-without-surgery, https://stillmed.olympic.org/Documents/Commissions_PDFfiles/Medical_commission/2015-11_ioc_consensus_meeting_on_sex_reassignment_and_hyperandrogenism-en.pdf
[9] Alex Berg, Stuck on the sidelines: A transgender powerlifte fights fo the right to compete, NBC News (Apr. 28, 2019. 4:11 AM), https://www.nbcnews.com/feature/nbc-out/stuck-sidelines-transgender-powerlifter-fights-right-compete-n998836; Navratilova, Update, supra note 1.
[10] Berg, supra note 9.
[11] NWHL Transgender Policy, National Women’s Hockey League, https://www.nwhl.zone/page/show/3786830-nwhl-transgender-policy
[12] Press Release, Canadian Women’s Hockey League, The Canadian Women’s Hockey League to Discontinue Operations (Mar. 31, 2019), http://www.thecwhl.com/the-canadian-womens-hockey-league-to-discontinue-operations
[13] Katie Barnes, CWHL’s first transgender woman finds comfort, confidence in professional hockey, ESPNW (Feb. 4, 2018) http://www.espn.com/espnw/culture/article/22029536/cwhl-first-transgender-woman-finds-comfort-confidence-professional-hockey. The CWHL’s official policies, unlike the NWHL’s, do not appear to be available publicly, and with the impending termination of league operations,
[14] Dan Avery, The Olympics Are About To Make It A Lot Harder For Transgender Athletes To Compete, NewNowNext (Apr. 23, 2018) http://www.newnownext.com/the-olympics-are-about-to-make-it-a-lot-harder-for-transgender-athletes-to-compete/04/2018/
[15] Sean Ingle, New IAAF testosterone rules could slow Caster Semenya by up to seven seconds, The Guardian (Apr. 26 2018, 4:13 AM) https://www.theguardian.com/sport/2018/apr/25/iaaf-testosterone-rules-caster-semenya
[16] Avery, supra note 11; Katherine Kornej, This scientist is racing to discover how gender transitions alter athletic performance—including her own, Science (Jul 25, 2018, 9:00 AM), https://www.sciencemag.org/news/2018/07/scientist-racing-discover-how-gender-transitions-alter-athletic-performance-including
[17] Kornej, supra note 13.
[18] Letter from Pūras, Melzer, and Radačić, supra note 7.
[19] Navratilova, The rules on trans athletes, supra note 1; Navratilova, Update, supra note 1; Joanna Harper, Do transgender athletes have an edge? I sure don’t. The Washington Post (Apr. 1 2015), https://www.washingtonpost.com/opinions/do-transgender-athletes-have-an-edge-i-sure-dont/2015/04/01/ccacb1da-c68e-11e4-b2a1-bed1aaea2816_story.html
[20] Katelyn Burns, No, Female Trans Athletes Do Not Have Unfair Advantages, The Establishment (Dec 13 2016) https://theestablishment.co/no-female-trans-athletes-do-not-have-unfair-advantages-14b8e249f93c/, Katelyn Burns, What Actually Happens When a Trans Athlete Transitions, Vice Sports (May 4, 2017 9:30 AM) https://sports.vice.com/en_us/article/vv95a4/what-actually-happens-when-a-trans-athlete-transitions
[21] Sandy E. James et al., National Center for Transgender Equality, The Report of the 2015 U.S. Transgender Survey 93, https://transequality.org/sites/default/files/docs/usts/USTS-Full-Report-Dec17.pdf
[22] Frances Perraudin, Martina Navratilova criticised over ‘cheating’ trans women comments, The Guardian (Feb. 17 2019, 12:12 PM) https://www.theguardian.com/sport/2019/feb/17/martina-navratilova-criticised-over-cheating-trans-women-comments; Alex Ballinger, Rachel McKinnon becomes first transgender woman to win track world title, Cycling Weekly (Oct 17 2018, 11:46 AM) https://www.cyclingweekly.com/news/latest-news/rachel-mckinnon-becomes-first-transgender-woman-win-track-world-title-397473
[23] Scott Gleeson and Erik Brady, These transgender cyclists have Olympian disagreement on how to define fairness, USA Today (Jan 12 2018), https://www.usatoday.com/story/sports/olympics/2018/01/11/these-transgender-cyclists-have-olympian-disagreement-how-define-fairness/995434001/
[24] Id.
[25] Dutee Chand v. Athletics Fed’n of India, CAS 2014/A/3759, Interim Arbitral Award, at 160 (Ct. Arb. Sport 2014), https://www.tas-cas.org/fileadmin/user_upload/award_internet.pdf
[26] Susan Ninan, Dutee Chand: I have found life and can run without fear now, ESPN (Apr 28, 2018) http://www.espn.com/athletics/story/_/id/23336583/dutee-chand-found-life-run-fear-now
[27] Martin Fritz Huber, Here’s What’s at Stake in the Caster Semenya Case, Outside (Feb 27, 2019) https://www.outsideonline.com/2390782/caster-semenya-hearing-arguments
[28] Media Release, Court of Arbitration for Sport, The CAS Hearing In The Arbitration Procedure Involving Caster Semenya, Athletics South Africa (ASA) and the International Association of Athletics Federations (IAAF) Has Concluded (Feb. 22, 2019), https://www.tas-cas.org/fileadmin/user_upload/Media_Release_Semenya_ASA_IAAF_closing.pdf; Media Release, Court of Arbitration for Sport, CAS Arbitration: Caster Semenya, Athletics South Africa (ASA) and International Association of Athletics Federations (IAAF): Planning Update (Mar. 21, 2019), https://www.tas-cas.org/fileadmin/user_upload/Media_Release_Semenya_ASA_IAAF_21.03.pdf; Media Release, CAS Arbitration: Caster Sementa, Athletics South Africa (ASA) and International Association of Athletics Federations (IAAF): Decision Update (Apr. 29, 2019), https://www.tas-cas.org/fileadmin/user_upload/Media_Release_Semenya_ASA_IAAF_decisiondate.pdf