Martin Fritz Huber Jun 28, 2022
A few years ago, the journalist Michael Lewis started a podcast called “Against the Rules.” The first episode had the promising title “Ref, you suck!” and began with the simple observation that animosity towards NBA referees seemed to be at an all-time high. This, Lewis eventually argues, is consistent with a larger trend of distrust and anger towards individuals and institutions who are supposed to be the arbitrators of fairness in our society. Imagine that.
I was reminded of Lewis’s premise earlier this month after the UCI, cycling’s global governing body, announced that it would be adopting a more stringent policy for transgender participation. Beginning July 1, transgender athletes wishing to compete in the female category will need to have testosterone levels of 2.5 nmol/L or lower (down from the previous 5 nmol/L), and have undergone at least 24 months of medical transitioning (up from the previous 12 months). In response, Emily Bridges, the trans rider whose prospective participation in the British National Omnium Championships was blocked by the UCI at the last minute back in March, accused the governing body of “moving the goalposts” on trans inclusion. Meanwhile, the sports scientist Ross Tucker, who has argued that the physical advantages of going through male puberty can never be entirely erased through testosterone suppression, blasted the UCI for being too lenient and ignoring the wishes of cisgender female cyclists. The critical response from both sides of the debate recalled the old axiom that a compromise is sure to make everyone unhappy. Ref, you suck!
Of course, such an outcome might be inevitable in a matter where sports governing bodies might ultimately need to decide whether to prioritize fairness at the expense of inclusivity, or vice versa. If we accept at the outset that a perfect resolution does not exist, the best we can do is to hone in on a particular aspect of the discussion. One place to start is the issue of who should hold the burden of proof when it comes to proving an unfair advantage.
At the risk of oversimplification, the question is as follows: If sports governing bodies have a restrictive policy vis-a-vis transgender athlete participation in the female category, is it their responsibility to prove that transgender women have an unfair competitive advantage over cisgender women? Or, conversely, do transgender women who wish to compete in the female category need to prove that they do not have such an advantage?
“The Court of Arbitration for Sport has made it very clear that the burden of proof lies with sports-governing bodies that attempt to introduce rules restricting, let alone banning, women from the women’s category,” says Joanna Harper, a trans woman, master’s runner, and medical physicist who has consistently held the position that trans women should be allowed to compete in the women’s category in elite-level sports after undergoing a period of testosterone suppression. Harper was referring in part to the Court of Arbitration for Sport’s 2015 decision in favor of the Indian sprinter Dutee Chand, whose natural testosterone levels were unusually high—a condition that World Athletics refers to as a “difference of sexual development,” or DSD. The court ultimately ruled to suspend the World Athletics regulations that barred women from competing if their testosterone levels were above 10 nmol/L. At the time, the CAS decision noted that WA “has not discharged its onus of establishing that the Hyperandrogenism Regulations are necessary and proportionate to pursue the legitimate objective of organizing competitive female athletics to ensure fairness in athletic competition.”
In a similar vein, last November, the International Olympic Committee issued a document asserting that it would no longer be involved in setting eligibility regulations for trans women athletes and that individual sports governing bodies needed to set their own standards. (The previous IOC policy had mandated one year of testosterone suppression and maximum T levels of 10 nmol/L across the board.) Instead, the IOC offered a framework for how governing bodies should approach the issue, which stipulates that, unless peer-reviewed evidence determines otherwise, “athletes should not be deemed to have an unfair or disproportionate competitive advantage due to their sex variations, physical appearance, and/or transgender status.”
Tucker has been one of the more outspoken critics of this approach. In a recent interview with the BBC, he argues that the IOC’s trans policy “got it backwards” by starting from a position of inclusion. When I reached out to him to elaborate, he made the point that the principle of exclusion is a prerequisite for a category to function as a category in the first place. His argument is that there is a logical fallacy in simultaneously holding that a separate women’s category is necessary and assuming that trans women have no advantage until it is proven otherwise. Or, as Tucker put it to me: “To argue that inclusion should be the default for people who wish to enter the category despite having the very attribute that the category exists to exclude, is basically to argue that the category purpose and necessity are not ‘real,’ or should be dismissed in importance.” Hence: “it should be incumbent upon those who are necessarily excluded to show why and how they don’t violate that category’s existence.”
Here, Tucker is essentially echoing the argument for “necessary discrimination” that the Court of Arbitration for Sport cited to uphold WA’s updated testosterone regulations for DSD women in 2019 when they were challenged by the South African 800-meter runner Caster Semenya. As Tucker explained it to me, the reason why WA was able to win a dispute similar to the one that they had lost several years earlier was that they had successfully (albeit controversially) reframed their case; rather than arguing that women with naturally high testosterone had an unfair advantage over other female athletes, they changed tack to argue that DSD athletes were “biologically male athletes with female gender identifies” and that, in the context of elite sport, a binary male-female divide was essential to ensure meaningful competition.
It’s worth noting here that Tucker was actually an expert witness testifying on Semenya’s team in the 2019 CAS case. Before the trial commenced, he co-authored a paper in the International Sports Law Journal which skewered a 2017 WA-funded study that purported to prove that female athletes with high testosterone levels had a significant competitive advantage. The study was so rife with errors and bogus data points that not to challenge it would have been “an abdication of knowledge,” as Tucker put it to me. But in changing their fundamental argument, WA effectively downplayed the relevance of their own crappy evidence. (Although that crappy evidence is why we currently have the absurd situation where the DSD T-regulations in women’s athletics only apply to track events from the 400-meters to the mile.) Of course, and as Harper emphasized to me, WA ultimately still bore the burden of proof in the Semenya case—but they were able to win by changing the terms of the debate. The burden of proof, in other words, can be a slippery concept.
For now, the controversy over DSD athletes, which was largely specific to the world of professional track and field, has been subsumed by the broader debate around transgender athletes. Last week, after the news broke that swimming’s global governing body FINA had unveiled a new policy that effectively banned transgender women from elite female competition, WA’s president Seb Coe praised the move as being “in the best interest of its sport.” There has since been speculation that WA could soon follow suit by scrapping its hard-won testosterone regulations in favor of a similar blanket ban. Meanwhile, Harper told me that she “assumes that there will be a CAS case involving a trans woman and a sports governing body in the near future.” I wouldn’t bet against it.
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