Determination of the Athlete's Gender: Legal Aspect

For many years, sport has existed according to the following principles proclaimed in the Olympic Charter: 1) the principle of harmonious human development and respect for human dignity; 2) the principle of universality of the modern Olympic movement; 3) the principle of free exercise of the human right to engage in sports; 4) the principle of non-discrimination in sports based on race, gender and nationality . It is a set of these principles that could serve as an impetus for the start of the fight for the rights of transgender athletes in sports. Fortunately and unfortunately, most sports, including all Olympic sports, fall into two categories: men's and women's. In a sense, this division makes sense. It guarantees that female athletes have the opportunity to participate in competitions that might not have been possible if competitive sports were opened on the basis of a gender-blind approach. But, at the same time, it becomes very problematic to defend such a division, when society is no longer divided into "male" and "female", but becomes much more diverse. Some of those who self-identify as "women" have, as a result of improper biological development, chromosomal and hormonal characteristics that are not typical for most women. Some (transgender women) who self-identify as women even though they were born in male bodies, which they may or may not change according to gender. Some (transgender men and other transgender individuals) self-identify as something other than a woman, but claim the right to participate in women's sports due to the fact that they were born in a typical female body. For decades, sports organizations have struggled to include intersex and transgender athletes in the already existing structure of sports. The exclusion of athletes who lack gender-typical characteristics in one way or another was not only painful for the affected athletes, but also served as a symbolic marginalization of all individuals who differ due to their intersex or transgender status. The international Olympic Committee (IOC), often in conjunction with the International athletics Federation, has experimented with various eligibility criteria for including transgender people in sports competitions, including appearance and chromosome testing. In addition, the IOC approved a separate policy for transgender athletes that allows transgender women to compete after completing a three-stage transition that includes surgery, hormone treatment, and legal recognition of female athlete status. But when these efforts failed to produce fair and satisfactory results for transgender athletes, the IOC and IAAF approved a hormone test for women that was first applied to women with hyperandrogenism, a characteristic of some intersex conditions that leads to the body's natural production of testosterone at levels higher than typical women. Even when this rule was challenged and temporarily suspended, the IOC still approved the use of the same hormone level restriction to determine the eligibility of transgender women. In other words, the IOC insists on a single hormonal rule in the sense that the same test of testosterone will apply to both transgender and regular women. This study will first present a brief history of gender testing in Olympic and international sports to illustrate why past attempts to determine eligibility for women's sports have proved unfair to women with intersex conditions. It will then describe the shortcomings of the IOC's first attempt in 2003 to formulate an acceptance standard for transgender athletes. We will discuss later attempts by the IOC and IAAF to determine eligibility for women's sports solely on the basis of testosterone. Finally, in the last Chapter of this study, we will look at how the above situation currently affects student sports, and what results a "humane" attitude to transgender athletes can lead to in the end.