Policies surrounding transgender athletes

The world of sport is moving rapidly to seek to make policy to address dealing with transgender athletes.

The International Olympic Committee (IOC) determined that it was up to individual sports to determine their transgender policies, stating that they would not promulgate a policy across Olympic sports. As a result, sports are being forced to introduce policies regarding transgender athletes. I would suggest some sports are reluctant to introduce such policies. Sports such as swimming and athletics have introduced policies which unsurprisingly have not been universally accepted.

It has become relatively clear that in drafting transgender policies, sports need to address 3 elements:

  1. fairness of competition;
  2. safety; and
  3. inclusivity.

It is interesting that in some sports, men and women have always competed against each other. Most notably in the Olympics, in the sport of equestrian, men and women compete against each other in all disciplines. As far as equestrian is concerned, it appears that inclusivity, safety, and fairness can be achieved.

As sports seek to struggle with these imperatives, a line appears to have been drawn between the elite and community versions of the sport. However, in body contact and collision sports, there is still difficulty with respect to safety even at a community sport level.

There is also difficulty in relation to fairness, and just because a sport isn’t elite or professional, it doesn’t mean that competing fairly at a community level in sport isn’t massively important to competitors. It is at this community level that the three competing elements are hard to resolve.

Sports will need to make up their own mind on the three issues. Indeed, they may retain some subjectivity in relation to specific athletes at a community level for various sports, particularly body contact and collision sports. Transgender policies may make this subjective condition a part of the policy.

It is a very sensitive area, and certainly, the sports that I have spoken with in relation to this are taking the matter very seriously in seeking to do the very best they can in dealing with these competing priorities. Ultimately, whatever policy is adopted, some people will be dissatisfied.

Recently, Basketball Australia have made the decision to not allow transgender basketball player, Lexi Rodgers, to play semi-professional basketball in the NBL1 South competition. This decision received wide publicity with high profile basketballers Andrew Bogut and Andrew Gaze both entering the commentary expressing different views.

Suzy Batkovic, member of Basketball Australia’s decision-making panel, made the following and perhaps unsurprising comment:

“I also want to make it clear because it’s important, that while this particular application was not approved based on criteria for elite competition, Basketball Australia encourages and promotes inclusivity at community level”

I am not quite sure what that means.

Meanwhile in the United States, much is happening in relation to transgender athletes competing at college level with legislation being enacted in various states to prevent transgender athletes competing in college sport.

Regardless of policy outcomes, the next few years will certainly prove crucial for sports worldwide in discussing and addressing how they will allow the participation of transgender athletes in their programs.

“The content of this publication is for reference purposes only. It is current at the date of publication. This content does not constitute legal advice and should not be relied upon as such. Legal advice about your specific circumstances should always be obtained before taking any action based on this publication.”
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