The public controversy surrounding Laurel Hubbard, the first transgender athlete to compete at a Commonwealth Games, has brought into sharp focus the complexities of gender identity in the context of professional sport.
Hubbard, who was favourite to take weightlifting gold before she was forced to withdraw through injury, had met the eligibility criteria to compete as set out by the International Olympic Committee (IOC) and International Weightlifting Federation. Yet, her participation was opposed very publicly by other teams who felt she had an unfair advantage.
UK sports governing bodies should have a formulated policy governing participation, but many are still grappling with this. Bodies who don’t address this leave themselves open to negative publicity and legal claims. It is unlawful discrimination under the Equality Act if a transgender athlete is prevented from participating in their chosen sport, unless doing so would create unfair competition.
It is up to the relevant sports governing body to decide when participation would prevent fair competition. For trans men, there is likely to be little difficulty, and the IOC’s guidance is that trans men should be able to compete in the male category without restriction (as no competitive advantage is perceived). For trans women however, as the Hubbard case demonstrates, determining the stage at which fair competition can be achieved can be more complex. The IOC guidance refers to testosterone levels as an appropriate measure, and notes that requiring a surgical transition is unnecessary and outdated (although this is still adopted by a number of sports governing bodies). Hubbard met all of the relevant requirements to participate, but her participation was criticised on the basis that she had an unfair strength advantage, having participated for many years in the men’s weightlifting.
Sports governing bodies face an incredibly difficult task in creating generic eligibility criteria that try to ensure an inclusive approach and also ensure fair competition which, when viewed in terms of a particular competition or event, can come down to individual physicality and circumstance. They are likely to need to take expert medical advice in determining the fair competition question. As well as grappling with the position for adult professional sport, many governing bodies are also struggling to formulate an approach for junior sport, where the medical, ethical and legal complexities are just as complex.
The UK government is currently reviewing the legal status of trans people and there is growing support for a ‘self determinative’ approach. In the context of professional sport this is a topic that is likely to continue to generate fierce debate and difficult ethical conundrums.