It's time for new guidelines on transgender athletes competing in women's sports

Emerging research shows that it is not fair for biological males to compete against women, except in those categories where talent, not biology, is the deciding factor in high performance.

Barbara Kay Montreal QC

On Aug 4, the Ottawa-based Macdonald Laurier Institute (MLI) hosted a webinar  titled "A Level Playing Field: Sex, gender and fairness in women's sport." The panel of speakers included: Jon Pike, former chair of the British Philosophy of Sport Association, who moderated; Linda Blade, high-performance coach and President of Athletics Alberta; Mianne Bagger, former touring professional golfer (and transsexual woman); Leslie A. Howe, professor of philosophy at the University of Saskatchewan; Emma Hilton, Developmental Biologist, University of Manchester; and Alison Sydor, Olympic medalist in mountain biking.

The panel kicked off with a summary of a MLI-sponsored survey of Canadians' attitudes regarding women's sport and gender identity:

*  a majority of Canadians feel sport should be segregated according to biological sex (56 percent)
*  18 percent of Canadians take the opposing view (ration 3:1)
*  62 percent of Canadians feel it is unfair to allow transwomen to compete with female athletes
*  15 percent of Canadians feel it is fair to allow transwomen to compete with female athletes (ratio 4:1)
*  Among those with the strongest views, the ratio is 6:1 of Canadians who support separate competitions and think it's unfair for male-bodied athletes to compete in women's events
*  Only 17 percent of Canadians believe trans athletes should be able to compete in the category of their choice based only on self-identification

*  23 percent of Canadians believe trans athletes should compete in the category corresponding to their sex at birth
*  The majority of Canadians (25 percent) believe the women's category should be open to biological women (including females who identify as male), and that male athletes who identify as female should compete in an "open" or mixed-sex category.

According to the MLI, these polling results are similar to those found in the UK and USA as well as those conducted by the Department of Canadian Heritage in spring 2021.

Discussion in the webinar revolved around themes of fairness, inclusion/exclusion, policy-making and human rights vs individual rights. The "lived experience" perspective was provided by transwoman Mianne Bagger, who, it should be noted, showed courage in publicly aligning herself with spokespeople for sex-based rights in sport. Her testimony emphasized the falseness of the allegation of transphobia against what we might term the biology-matters side of the debate, by observing that transmen are warmly included in women's sport precisely because they are biologically female.

The case of Quinn (a non-binary player on the Canadian women's Olympic soccer team who chooses to be known by that name alone) shows that gender identity in sport is irrelevant to inclusion and performance. Even with testosterone treatment, Quinn would be left in the dust if she tried to compete against boys or her age. Her case exposes the basic paradox that for females identifying as males who have no hope of success in men's sport, "biology" is the existential "inclusion" factor. But since it is precisely biology that gives males an advantage in women's sport, male athletes identifying as female who might have little or no hope of success in men's sport are permitted to fall back on "gender" as the existential "inclusion" factor.

Emerging research shows unequivocally that it is not fair for biological males to compete against women, except in those categories, like equestrian sport, sailing and shooting, where talent, not biology, is the deciding factor in high performance. This is not an issue that is confined to trans athletes. For example, a "blade runner"—a double amputee fitted with prosthetic lower legs that actually outperform natural limbs—lost an appeal to run in the Tokyo Olympics. The value of inclusion in that case was trumped by the more important principle of fairness, as is appropriate.

Since there is unrebuttable scientific evidence that the male advantage conferred by puberty can climb as high as 160 percent in combat sports—in running, the world's fastest 14-year old male can't come near the record of the fastest male adult sprinter, but has virtually tied the record of the fastest woman runner in history—there should be no controversy in stating that men and women are differently constructed, and that biological difference matters.

Laurel Hubbard's presence at the Olympics as the first trans athlete opened up discussion on the subject, in spite of the fact that she did not earn a medal, as had been expected (in spite of the fact that Hubbard, at 43, is 20 years older than the average high-performance weightlifter, and looked out of shape besides).

But medalling is not the point of the Hubbard story. If Laurel Hubbard, with male physiology, competed with men, she would be in the 109kg category, and—such was her record as a male weightlifter, when she was Gavin Hubbard—she would not have qualified for the Olympics. This category does not even exist in women's weight lifting, so Hubbard competed in 87kg. Her inclusion meant a worthy woman contender—18-year-old Roviel Detenamo—was excluded. Yet Hubbard was celebrated by trans-rights stakeholders as an icon of progress in sport.

Most of the media also celebrated Hubbard's presence in Tokyo (the medallists in her category not so much). Sports struggle to retain and encourage girls. Male athletes now have two options: compete against higher-performance males and make no headway; or compete in the female category, where, whether they win or not, they achieve recognition, prestige, scholarships and other perks of high-performance sporting life. Female athletes only have the option of staying in the female category, or leaving sport altogether.

I have been following this subject for a number of years, and so was familiar with most of the panel and their talking points. But I had not been exposed previously to Leslie Howe's analysis of human rights versus individual rights, and I was impressed with her arguments.

Trans activists and their allies are wont to say that exclusion from women's sport is a denial of transwomen athletes' human rights. But is that really so? Human rights, Howe asserts, are those rights that accrue to individuals on the basis of universal human need: food, potable water, shelter, protection from arbitrary violence or detention: that is, needs that must be met for survival and minimum dignity. It cannot be arbitrary, or only for one nationality, race or sexuality, especially not if that right is conferred at the expense of another group.

Human rights, Howe explained, are distinct from civic rights, such as the right to drive or receive a pension. Values—which can differ across cultural and political lines—are not rights. Preferences are not rights. As Howe noted, "I have a right to food, but not a right to avocado." Freedom of movement is a human right, but it is a regulated freedom.

Sport, like art and music, is a "human good." Access to sport is not the same as access within sport. No individual has the right to choose where he or she wishes to compete within sport. Eligibility must be conditional on the fairness principle. That is why everyone accepts that there must be age and weight categories in sport (Hubbard a case in point). We cannot have competitions "where one side cannot lose and one side cannot win." Thus, no matter how much trans activists value inclusion as a value, they cannot assign the wish to self-identity into a given category the status of a human right.

What must happen on the policy front? The IOC has admitted that their policy is not fit for purpose and needs review. The IOC has even showed support for the World Rugby Union's ban on transwomen in women's rugby for reasons of safety. The IOC's medical and scientific director, Richard Budgett, has indicated that individual sport federations are free to devise their own policies. (But he also declared, "Everyone agrees transwomen are women," the meme that signals alliance with the ideologues.)

Basically, because the IOC's own route to their 2015 policy was based on a single, methodologically flawed study that applied only to marathon runners, they are passing the problem they created on to others to resolve. The IOC's muddy waters will now cascade down into all sports at all levels. The IOC should not only have admitted their mistake, but should have announced a suspension of their 2015 guidelines, promised a clean-slate review, this time science-based and ideology-free, and then got on with assembling a task force composed of honest, non-partisan researchers —such as Jon Pike, Emma Hilton and Linda Blade.

As it is, federations have been caught back-footed, unsure what to do, and ill-equipped to untangle the matrix of science, rights, legal and ethical issues that need to be addressed. Issuing bromides that tout fairness, inclusion, safety and ethics as polyvalent but equal principles that can be accommodated to everyone's satisfaction, as is now the case, is unworkable. Forget "values" and "preferences" and "feelings." There must be a hierarchy of principles enunciated that all sport associations can sign on to, and there must be a methodology for establishing it.

Safety should come first as a principle, fairness next. Inclusion should be considered where it meets the fairness test. Inclusion cannot be the priority.

But will those sport associations, such as the Canadian Centre for Ethics in Sport—whose guidelines (which I have critiqued in these pages) are even more permissive than the IOC's—undertake any serious, objective review of their policy? They will not, unless they are forced to. That won't happen through Twitter activism. That will happen only when the less dramatic, but ultimately inexorable power of evidence-based proofs of the steady erasure of women in sport mount sufficiently high as to embarrass the government into action.

To that end, I am pleased to report, the MLI will shortly produce a policy document on the issues presented in this webinar as a resource for policy-makers.


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