Having just been appointed to the highest office in world sport on March 20, Kirsty Coventry is expected to address many issues: the organization of the 2028 Olympic Games in Los Angeles, the choice of venue for the 2036 Olympic Games, questions about the evolution of the Winter Olympic Games in light of the climate crisis, etc. But the theme on which she has already spoken so far is none other than the question of the inclusion (or non-inclusion) of transgender athletes in international competitions. In this regard, the Zimbabwean stated, before the IOC General Assembly, her wish to prohibit any transgender woman from participating in all women’s events.
My remarks will attempt to show that, without a clear, harmonized, fair, and equitable policy, such a generalized exclusion can only lead to unjustified discrimination in international top-level sport. Yet the issue is a burning topic in the context of the organization of the next Olympic Games in Los Angeles. I will take the gamble of illustrating my remarks with a discipline to which I (far too) often succumb: chess. Through the anti-transgender policy implemented by the International Chess Federation (Fédération Internationale des Echecs, FIDE), I seek to demonstrate that the principle of gender bicategorization (the separation of women and men) in sport should be the exception to a rule that should be inclusive.
Non-conformity of the FIDE Regulations with the FIDE Charter and the lex olympica
“Gens Una Sumus”. Latin for “We are one family”. This has been FIDE’s motto since its creation in 1924. Yet on August 21, 2023, to everyone’s surprise, the international body published on its website a regulation henceforth prohibiting transgender women from competing in the women’s categories of international chess competitions (article 3 of the Regulations). No explanation seems to support this publication, except that “FIDE and its member federations more often receive recognition requests from individual members who identify themselves as transgender” (introduction) and, as such, consider that “Change of gender is a change that has a significant impact on a player’s status and future eligibility to tournaments” (article 2§3).
Openly criticized by a large segment of the chess community and by certain national federations (see here and here), this decision contravenes above all its own Constitutive Charter, which prohibits any form of discrimination against a private individual, in particular with regard to their sex or gender identity (article 4.4 of the FIDE Charter). The 2023 Regulations in fact only apply to transgender women (article 3 of the Regulations). A transgender man can therefore still compete in the two types of international tournaments organized by FIDE (so-called “open” tournaments, and those exclusively for women). Discrimination is also established between women because the Regulations establishes differentiated treatment between players born biologically female and those who have requested recognition of a sex change. This means that two women from the same State – which nevertheless considers them both female – may therefore not be granted the same authorizations to take part in an international tournament. While no international court has yet had to rule on such a case, a comparative analysis can be made with the Dutee Chand and Caster Semenya judicial sagas which, although dealing with the exclusion of intersex (not transgender) women, addressed the issue of excluding certain women from women’s events on the basis of a principle of equity. However, such exclusions had been perceived by all the jurisdictional bodies as discriminatory measures between female athletes (see CAS, Dutee Chand , 24 July 2015 (§450); CAS, Caster Semenya, 30 April 2019 (§542-548); Swiss Federal Tribunal, Caster Semenya , 25 August 2020 (§9.6.1-9.6.3); ECHR, Caster Semenya , 11 July 2023 (§201)), even if the consequences of such a finding may have diverged (the CAS Arbitral Tribunal and the Swiss Federal Tribunal (Semenya case) considering that such discriminatory measures were well-founded in that they constituted necessary and proportionate measures to ensure fair competitions between all female athletes; the CAS arbitral tribunal (Chand case) and the ECHR ( Semenya case) considering that the evidence justifying the maintenance of such exclusionary measures had not been provided).
The fact that FIDE was recognized as an international federation by the IOC in 1999 also requires it to comply with Olympic law (Article 8.1 of the FIDE Charter and Rule 25 of the Olympic Charter). However, the FIDE Regulations not only contravene the Olympic Charter (which prohibits any discrimination, particularly with regard to gender), but also the recommendations of the IOC, which published a “Framework” on the matter in 2021. In it, the IOC has chosen to delegate to each international federation the question of the distinction between men’s and women’s events, as long as athletes are not excluded solely on the grounds of their trans identity (introduction to the Framework), that the exclusion is not systematic (article 3.1), that it is justified by solid scientific research (article 6.1) and that medical data remains confidential (article 9). The FIDE Regulations contravene all of these rules: they systematically exclude transgender female athletes, on the sole basis of their trans identity, without any solid scientific justification. Furthermore, FIDE reserves the right to inform organizers and other interested parties of any gender change, as well as to place a mark in the player database (article 5 of the FIDE Regulations). Nevertheless, this Framework remains a soft law standard, and its lack of legally binding nature contravenes the necessary need for consistency and harmonization in sport. This has led to an anarchic development of the rules in this area, and the development of unfounded policies as we can see with FIDE. While FIDE is far from being the only international federation to have excluded transgender women from women’s competitions (the rugby, swimming, athletics, cycling, and tennis federations have also done so), it remains the only one not to have done so on the basis of any scientific considerations.
Failure of the proportionality test in the FIDE Regulations
Implicitly, FIDE’s decision actually supports a view that men would be physically advantaged over women in international chess competitions. In 2023, its representative told the BBC that FIDE plans in the future to carry out a “comprehensive analysis to understand the impact of various factors, including but not limited to, the role of testosterone levels on chess performance”. However, no study has ever demonstrated this postulate. On the other hand, many studies have proven that the underrepresentation of women in chess is due to sociological factors (being underrepresented in local clubs, having children during their international careers or underestimating themselves). For example, in a famous study published in 2008, it was shown that women played less well than men only when they played (or thought they were playing) against men, but that their level of play was in line with their ranking when they played (or thought they were playing) against women.
While the scientific debate today seems to have reached an almost general consensus on the advantage conferred by the production of androgens (and testosterone in particular) in the physical capacity of athletes (and the author of these lines will not enter into this debate which goes far beyond his knowledge), and that the majority of international tribunals have admitted that testosterone could give rise to a physical advantage, the maintenance (or not) of a discriminatory decision has however always been justified by the application of a proportionality test between the measure in question and the pursuit of a legitimate aim supported by an objective justification. However, FIDE’s decision, obviously discriminatory, does not demonstrate a legitimate objective, still less a basis for objective justification. By bringing the debate on the scientific distinction of the physical criterion into the world of chess, FIDE’s decision contravenes any form of proportionality control traditionally applied in this field. This decision raises the question of the revival of gender-based categorization in sport, in light of the development of more and more disciplines that do not involve purely physical confrontation between athletes.
The renewal of gender-based bicategorization in sport in light of the debate on gender distinction
The historical definition of the term “sport” has long referred—and still largely refers—to physical events. Most national and international public institutions (see, for example, article 2 of the 2022 European Sports Charter) define “sport” as any activity with three cumulative characteristics: an institutionalized form, a—at least partially—competitive character, and a physical criterion. The IOC itself long followed this tripartite definition, before removing the physical criterion from its Charter in 1991, in connection with the development of new sports to which the Olympic movement wished to open up.
In fact, it is these new disciplines, which are no longer based on a competition between physical abilities (in other words on a pure fight between human bodies), that are underpinning the debate on maintaining the distinction between women and men in sport, particularly when physical abilities are only used to support a test of reflection (as in chess), style (as in skateboarding or BMX freestyle), precision (as in golf, billiards, archery) or piloting (as in sailing or Formula 1). The FIDE Regulations show that it is now necessary to re-examine the question of this distinction between women and men in a general manner for all sporting disciplines (and in particular those on the program of the next Olympic Games). A lasting solution would be to establish a rule composed of two complementary proposals:
Firstly, to support that, as a matter of principle, the various disciplines recognized by the IOC are prohibited from developing a distinction between men’s and women’s events;
Second, to accept that, by way of exception, a list of disciplines – drawn up jointly by the IOC, an independent scientific committee and the relevant international federations – be published, and would set out which disciplines would require maintaining separate women’s and men’s events (on a clear scientific basis), and therefore which sports would – or would not – be entitled to restrict access to women’s competitions for certain individuals. Even if the potential list of sports benefiting from such an exception to this principle of non-separation would probably be longer than that of sports not eligible for it, this solution would nevertheless establish a new logic requiring impartial proof that there is a physical difference between men and women in the way a discipline is organized, and would therefore avoid certain international federations from deciding, in a single provision, to exclude all transgender female athletes from all women’s competitions in the future.
The creation of an international agency responsible for implementing harmonized international legislation between sports could be an effective proposal, especially if its creation is coupled with the drafting of a treaty against all forms of discrimination in sport. This proposal refers back to the model of the World Anti-Doping Agency, which oversees the implementation of the 2004 World Anti-Doping Code (legally binding on international sports organizations), whose provisions are now regarded as genuine treaty obligations for the 190 States parties to the UNESCO International Convention against Doping in Sport.
By combining these two elements (principle and exception), this rule would have the advantage both of better integrating women and transgender or intersex people into common events and of protecting women in disciplines that effectively require a comparison between athletes’ physical bodies. Thus, we do not support the idea, already implemented by certain international federations (such as swimming or rugby) that a third way should be developed, in other words a so-called “open” event (neither male nor female), at the risk of consolidating the exclusion of transgender people in sport. In any case, such “open” events do not seem to be very successful. This is evidenced by the creation, at the World Swimming Championships in Berlin in 2023, of an “open” category that received no applications, which was widely considered a failure of this initiative.
Conclusion
In 2001, the PGA Tour v. Martin case, which pitted a professional golf player with a right-leg disability against his federation, showed the limits of reasoning based on purely physical criteria. In a decision dated May 29, 2001, the US Supreme Court ruled in favor of the golfer, who had asked to be allowed to use a golf cart, considering that the use of such a device did not alter the essential aspect of the sport, which was to hit a ball into a hole. The issue of integrating transgender and intersex people raises exactly the same question: when do an athlete’s physical abilities become such that the very essence of the sporting discipline in question can be affected? The question actually raises scientific issues that cannot be resolved by disparate and autonomous responses from each international federation, at a time when – for the time being – normative and jurisdictional leverage remains very limited within a sports international legal system that is still largely autonomous and decentralized. Our proposal to reform the current framework of international sporting competitions by establishing a principle of non-separation of the sexes (except for strictly justified exceptions) therefore attempts to answer this question.
Image: Maria Helena Vieira da Silva, La partie d’échecs, 1943. Centre Pompidou, Paris, FRANCE.