Keighley, Ashleigh --- "Transgender Women's Rights to Compete in Swimming and Sport" [2022] UNSWLawJlStuS 17; (2022) UNSWLJ Student Series No 22-17

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TRANSGENDER WOMEN’S RIGHTS TO COMPETE IN SWIMMING AND SPORT

ASHLEIGH KEIGHLEY

I INTRODUCTION

This essay is concerned with whether the law and sporting policies, including both Australian and International law and policies, adequately address transgender people’s rights in the sporting industry, particularly in the field of swimming. This paper also suggests law reform recommendations that may assist in addressing the rights of transgender swimming athletes fairly and adequately alongside the rights of cis-gendered athletes. Currently, the law fails to adequately address transgender people’s rights and obligations in the sporting industry, particularly in the field of swimming because the many differing societal views on the matter are a major cause of conflict in policymaking. This essay defines ‘transgender’ to mean individuals whose gender identity does not align with cultural and social expectations assigned to them at birth.^[1] A person who is born as a male but identifies as female, is a transgender woman. A cis-gendered person identifies with their biological gender. Whilst it is important to recognise there are caveats to this definition, this essay is predominantly focused on transwomen with consideration of transmen. The literature that this essay draws on demonstrates that transgender rights are increasingly at the forefront of social issues in modern-day society, but one issue that comes with the expansion of transgender rights involves sporting competitions. This essay will focus on transgender sporting issues within the swimming context, both domestically and internationally. First, this essay examines global and Australian policies and laws whilst considering US policies. Secondly, it analyses the attitudes of many important stakeholders such as competitors, politicians and medical practitioners to gain a social perspective on the matter. It also addresses the fairness versus inclusivity issue in light of hormonal treatment and natural hormonal differences such as testosterone levels of transwomen athletes. The third and final section of this essay offers suggestions for law reform and policy in light of the other issues considered in this essay to attempt to provide reform suggestions that are fair by nature to athletes and other stakeholder views. This essay identifies how the experiences of transwomen demonstrates a deeper level of discrimination and oppression comparable to the experiences of women generally in sport and society.

II POLICIES AND LAW

A International Policy

The policies surrounding transgender people and sport do not provide a consistent approach. The International Olympic Committee (IOC) provides guidelines for transgender athletes competing in elite-level sporting competitions. Initially, transwomen could only compete if they had declared their gender as female four years prior to competition and have had their testosterone levels below ten nanomoles per litre of blood for at least 12 months before competition.^[2] The policy was updated in 2015, removing the requirement for genital reconstructive surgery and replacing it with the requirement of hormonal treatment for male-to-female athletes.^[3] That policy stipulated that transgender-male athletes are free to compete without restriction, which is further indication that the purpose of the policy to appears to target transgender women.^[4] In October 2019, the governing body of athletics, World Athletics, reduced the required nanomoles to below five nanomoles per litre of blood for a period for at least 12 months prior to being declared eligible to compete as seen in the US policy discussed below.^[5] The IOC has now produced another 10 point framework in 2021 which provides for no presumption of advantage and that transwomen should no longer be required to reduce testosterone levels to compete in female fields.^[6] Such guidelines are not absolute rules, but a principled approach for sporting bodies to develop a criteria that is applicable to their sport.^[7] The IOC has demonstrated a passive progressive approach by reducing the onus of transgender athletes to go through strenuous steps to meet the criteria to compete. However, the IOC has refused to issue regulations that actively provide rights for trans athletes to compete as it continues to permit sporting bodies to use their discretion in allowing such athletes to compete.

B Australian Policy and Law

Swimming is a popular sport in Australia. However, the extent of Australian swimming competitions catering to transgender competitors is unclear. The NSW government education guidelines indicate that transgender children should be permitted to participate in most school-based sports.^[8] These guidelines appear to be influenced by the Australian Institute of Sport’s ‘Sport Australia’ guidelines which were formed by the partnership of Sport Australia, the Australian Human Rights Commission (AHRC) and the Coalition of Major Professional and Participation Sports. These guidelines have a strong focus on the Sex Discrimination Act 1984 (Cth) (‘SDA’).^[9] The Act provides a ‘competitive sporting activity’ exemption which allows sporting competitions and bodies to discriminate against an athlete on the grounds of gender identity in which ‘strength, stamina or physique’ is a relevant factor to the sporting competition.^[10] This exemption, however, does not apply to children under 12 years of age.^[11] The concepts of ‘strength, stamina and physique’ are not defined by the Act and the AHRC Guidelines argue the concepts have not been defined by the Federal Court.^[12] However, the Victorian State equivalent legislation, section 66 of the Equal Opportunities Act 2010 (VIC), holds the exemption should apply if, when both sexes compete against one another and the competition would be uneven in the circumstances.^[13] The AHRC Guidelines argue this interpretation has been approved by the Federal Court and such an interpretation is likely to be extended to transgender athletes.^[14] The most crucial aspect of this exemption is that the exemption applies to positively exclude a person, which suggests that there is an underlying assumption that all transgender people ought to be permitted to compete as their identified gender unless there is a reason to exempt them from doing so.

Swimming Australia is one of the organisations which governs swimming and holds competitions and where the abovementioned exemption applies to such competitions. Swimming Australia’s rules are silent as to what heats transgender people are permitted to compete in, if any. The rules merely state “all individual races must be held as separate gender events”.^[15] Such rules apply in all events conducted by Swimming Australia including Australian championships, international competitions in Australia and Australian inter-state meets conducted by affiliated associations.^[16] Such rules are stipulated to be a modification of a Fédération Internationale De Nation (FIDA) or the addition of an applicable Swimming Australia Rule.^[17] FINA remains silent as to its transgender policy as it is still developing such a policy.^[18] Therefore, Australian transgender swimmers are not represented or catered for in competitions run by Swimming Australia. However, the by-laws stipulate that competitors may modify their swimsuits to accommodate their individual needs and preferences, including in respect of gender identity.^[19] Although this is still far from a clear confirmation of acceptance or even tolerance of trans competitors, the term ‘gender identity’ arguably leaves room to interpret that such a term may extend to chosen gender identities rather than assigned gender identities. Swimming Australia recently became a member of the Australian Pride in Sport program in an attempt to commit to the further development of the inclusion of the LGBTQI+ community in sport.^[20] This suggests that Swimming Australia is open if not committed to taking steps towards creating a policy for transgender competitors, but there is evidently far more action required from Swimming Australia before one can determine their adequacy in catering for transgender athletes. However, the current policy and lack of actual transgender competitors in these higher-level swimming competitions demonstrates that transgender athletes are not permitted to compete in competitions run by Swimming Australia. The AHRC Guidelines hold that transgender people should not be discriminated against in terms of their applications to become a member be rejected on the basis of their gender identity.^[21] This does not expressly provide the rights for trans people to compete as their identified gender. On the other hand, Disability Sports Australia (DSA) appear to take a more active approach in supporting transgender athletes to compete in sports.^[22] Its policy expressly acknowledges that the exclusion of transgender people from participating in sporting competitions has significant impacts on their health, well-being and involvement with the community, and in general, DSA supports transgender athletes to compete under their identified gender.^[23] However, DSA also recognises the debate over fairness for male-to-female transgender persons obtaining physical advantages over cis-gendered female participants.^[24] The policy does not directly cite section 42 of the Discrimination Act but refers to discrimination laws governing such issues and the policy states that if such debate arises over fairness, the DSA will seek advice on the application of those laws.^[25] Further, the policy makes reference to the IOC’s criteria for selection and participation of the Olympic games indicating that it is more inclined to follow the IOC policy. Therefore, the DSA recognises transgender athletes' rights provided issues of performance do not arise, whilst the other Australian policies have neglected to adequately represent the sporting rights of trans athletes.

C USA Policy

In the United States, Lia Thomas has made headlines as a transwoman swimmer. Lia is particularly known for being the first transgender swimmer to win a division one National Collegiate Athletic Association (NCAA) swimming title, which is known as the pinnacle of US college sports.^[26] This has caused much speculation as to the future and fairness of women’s sport. The current USA Swimming policy stipulates that female-to-male transitioning athletes must satisfy a Self-Identity Verification Form.^[27] This form is an application to the USA Swimming Senior director which essentially confirms that the athlete has transitioned from their assigned bona fide birth and the gender which they have applied to compete under is the gender that they identify as in everyday life.^[28] Whilst this appears to be unfair for transgender people because they are required to have their chosen identity ‘approved’ whilst cis-gendered people do not require such approval, it is clear the policy is aimed at permitting transgender people to compete whilst upholding the spirit of competition. The policy aims to facilitate fairness for all competitors to ensure people are not unfairly discriminated against or disadvantaged. Tranwomen athletes must also satisfy the Self-Identity Verification form, and for elite athletes, submit an Elite Athlete/Fairness Application to the USA Swimming Senior Director at least 90 days prior to the start of the elite event they wish to compete in.^[29] The Senior Director then submits the application to a panel of three medical experts known as the Elite Athlete/Event Fairness Panel (‘the Panel’).^[30] The experts are appointed according to the preference that those medical experts hold the relevant experience related to transgender health and/or physical performance of transgender swimming athletes and the effects of medical approaches in mitigating pre-existing advantages.^[31] In addition to this, the trans athlete must satisfy the panel they possess no advantage over the cis-gender athletes because of their prior physical male development, and such evidence will be reviewed by a panel of three independent medical experts.^[32] Further, the policy expressly presumes the transwomen athletes are not eligible unless they maintain a testosterone level below 5 nanomoles per litre continuously for at least 36 months before the competition.^[33] To prove this, the athlete must undergo 3 separate blood tests within the past 365 days preceding the application and the last test must be conducted within 90 days prior to the application.^[34] This puts an onus onto the transwoman to prove their gender aligns with the gender they identify as. It should also be noted that the presumption under the USA Swimming Policy may be rebutted if the Panel finds, in unique circumstances of a case, the athlete holds no advantage notwithstanding their serum testosterone results, such as the athlete has a medical condition limiting the bioavailability of the athlete’s testosterone.^[35] Therefore, the US policy applies in thoughtful detail, despite clearly providing more strain on transwomen athletes to ‘prove’ their gender, the policy demonstrates its aim to facilitate fairness and provide opportunities to trans athletes.

III BALANCING FAIRNESS WITH INCLUSIVITY: STAKEHOLDER VIEWS

A Conservative View

The above policies are shaped by academia, medical research and stakeholder views. Such a topic has been rife with debate surrounding issues of fairness and equality. Recently, Tasmanian Liberal Senator Claire Chandler introduced a private member’s bill ‘Save Women’s Sport Bill’ to the senate to amend sexual discrimination laws in sport.^[36] The bill suggests that the operation of single-sex sports being restricted to biological sex is not discrimination.^[37] The bill does not prohibit transwomen from competing in female fields, but instead allows sporting organisations to hold female-only heats without facing the risk of litigation for discrimination. This stakeholder view comes from a place of protecting ‘women’s rights’ and the right for women to compete in sport did not come without activists pushing for the right, and therefore that right must be protected. This is the conservative view that transgender people undermine the right of women to compete in sports.

B Progressive View

In dispute of the above argument, many feminist scholars are of the view that transwomen are women and should, in all circumstances, be treated as so, and failure to do so has devastating effects on transwomen because failing to be recognised as a woman denies their identity. Feminist scholars also argue that the exclusion of transgender athletes is a consequence of gay and transphobia.^[38] Such phobia has shifted from open hate speech and targeted attacks and express exclusion to a passive exclusion which now stems from fears of unfairness in sport.^[39] One study found that cis-gendered female athletes have been silent on the issue due to fear of their opinions being labelled as transphobic.^[40] It was found that the fairness/inclusion aspects of transgender rights assume that biological advantages of transwomen are less important than the social disadvantages transgender people face.^[41] Gender identity theorists argue that biological sex operates on a spectrum and therefore gender identity should be the dominant classification of gender.^[42] Therefore, this is the dominant view of many who believe transwomen should be permitted to compete against other women.

C Studies

The mixed-method study collected questionnaires surrounding themes of IOC guidelines, fairness, scientific evidence and impact on female categories amongst other questions.^[43] The majority of the respondents were surprised the 2015 IOC policy permitted serum testosterone levels that are more than 5 times what naturally occurs in cis-females and some held this was unfair.^[44] Participants generally agreed that transgender people ought to be allowed to compete but not at the expense of female athletes.^[45] Respondents agreed almost unanimously that eligibility into female categories ought to be for cis-female athletes only and one athlete suggested a separate class for transgender athletes ought to be created for fair and equal opportunities.^[46] Such a separate class is rejected by some trans-people for the reason that it denies their identified gender as a woman.^[47] Although this study has found that many female athletes are afraid to speak out against transwomen athletes, Australia’s most decorated Olympian, Emma McKeon has announced that it is unfair for ‘biologically male’ swimmers to be permitted to swim against biologically female swimmers.^[48] Another recent mixed-method study containing surveys and interviews with clubs involved in an LGBTI+ Pride Cup and nearly half of the male respondents (n = 123; 45.7%) and one quarter of female respondents (n 53; 24.1%) believed transwomen have an unfair advantage when they play on a female sporting team.^[49] There are two critical issues to assess here. The first is that although most respondents do not believe transwomen have an unfair advantage, such respondents have links to the LGBTI+ Pride Cup and may be likely to have more concerns around inclusivity rather than fairness. The second issue is the keyword ‘team’. Team sports are made up of many players to contribute to the end result, whereas individual competition means it is the transwoman against the cis-gendered woman and advantages may be much more obvious in such circumstances. Further studies are required with more detailed questions to truly ascertain the public and athlete stakeholder views on the matter with consideration to the difference between team and individual competitions.

D Medical Stakeholders

There is an argument that historically, transgender athletes only had trouble in competitions when other people recognised they did not defy the constructs of the gender with which they identified, therefore, arguments of advantage are largely due to societal fears rather than based on scientific studies.^[50] However, the medical evidence of testosterone advantages is not yet conclusive. A clinical Endocrinology paper asserted an increase in strength and muscle mass accompanies an increase in testosterone.^[51] This is particularly the case with transwomen who have undergone male puberty because this causes higher levels of testosterone in their bodies compared to biological females. Further evidence to suggest unfairness in the testosterone serum requirement is that the endogenous testosterone level in females is 0.12–1.79 nanomoles per litre which is significantly lower than the 7.7–29.4 nanomoles per litre level in males and the maximum allowance of 5 nanomoles per litre referred to in the Swimming USA and other policies.^[52] This means that many transwomen would have to lower their testosterone substantially to render their levels to be equal with their biological female sporting colleagues. One article concluded that there is no current direct or consistent research to determine whether trans-female athletes have an athletic advantage at any stage in their transition and policies which restrict competing should be revised.^[53] This article has been disputed with reference to strength, size and power and that policies ought not to revise restrictions until further research may provide more information.^[54] Such a conclusion has been founded on case studies of transgender athletes such as Laurel Hubbard, Mary Gregory and Hannah Mouncey demonstrating strength and size ability higher than their cis-gendered female counterparts which arguably provided them with an advantage.^[55] Further medical consideration which supports the argument against allowing transwomen competing in female fields is that in sports such as swimming, the genders are divided for competition due to men’s physical advantages in strength, speed and endurance. Men, on average, are taller, stronger, faster, and have greater bone density and higher circulating haemoglobin levels.^[56] This is particularly important in elite competitions where athletes are competing with significantly high stakes and fairness is a crucial aspect of the sport. A person who goes through male puberty will produce 20 times more testosterone than women.^[57] A study found that transwomen who reduced circulating testosterone levels from male range to adult female range only led to a 9.4% reduction of muscle mass.^[58] It is unclear whether this is sufficiently on par with cis-gendered athlete muscle mass. Such consideration indicates that although the reduction of testosterone in transwomen athletes reduces muscle mass, bone density and size remains the same and consequently suggests that transwomen will have an advantage over cis-gendered women. Therefore, further medical research is required to ascertain whether transwomen athletes truly do have an advantage over biologically female athletes and whether reducing their testosterone levels can create a true and fair playing field, particularly in the sport of swimming where stamina and strength play a prominent role in performance.

The above paragraphs concerning stakeholder views demonstrate that there appears to be much contention between many stakeholders in this area of policy. The paragraphs further demonstrate the reality of the battle of fairness versus inclusivity. One of the challenging aspects of these terms is that they are subjective. Fairness is an elusive concept that has malleable boundaries which may, and have, changed over time as social concepts and acceptances evolve.^[59] What is considered acceptable inclusivity to some is insufficient to others. For example, Senator Clair Chandler’s “Save Women’s Sport” bill represents the population that accepts that there is a place for transgender people to compete in sport, and whilst not prohibiting them from doing so, allows the competitions to hold races or heats which are not open to transgendered people. To some, this is not exclusive because there is no prohibition of transgender people in sport but fair for all competitors. To others, the exclusion of transgender people to certain races is a significant exclusion and such an exclusion causes deeper issues surrounding the denial of their identity.^[60] This is an issue surrounding equality no matter which side of the argument one sits. It presents the battle between equality for women and equality for everyone who identifies as a woman. It is important to note that the equal treatment of all people can further disadvantage women.^[61] This is particularly so in sport until it is proven transwomen do not hold an advantage. Article 13 of the United Nations Convention Against All Forms of Discrimination Against Women (CEDAW) holds states must take steps to eliminate the discrimination of women in sport to protect their equal right to participate in sport.^[62] Whilst an article by Blakey argues for gender segregation from sport entirely, further consideration ought to be given to whether the permitting of transwomen to compete against cis-women may undermine the equal right of women to participate. Although transwomen athletes competing does not prevent cis-women from competing, if an unfair advantage occurs, there could be an unintended reduction to the equality of women’s sport which could consequently reduce access to women to compete in the same fairness their male counterparts compete under. It is clear that more medical systematic research is required to conclusively determine the actual advantages held by transwomen athletes. Policymakers should proceed with caution in further relaxing competitor requirements to compete in female heats due to the medical research suggestion that transgender athletes are likely to hold advantages over their female competitors if they hold higher testosterone levels.

IV AUSTRALIAN POLICY AND LAW ANALYSIS AND REFORM

A Analysis

The Australian policies discussed in the first section of this essay when read with the SDA provides great difficulty in identifying any clear representation or catering to transwomen’s rights in sport. Swimming organisations face many difficulties in this area because, on one hand, they are told not to discriminate against transgendered athletes, but there is scarce information to tell organisations what they must do and where the line is drawn for athletes to compete in events such as single-gender swimming races. It appears that the onus is on the organisations to decide whether athletes exceed the ‘strength, stamina or physique threshold to be barred from competing in races under their identified gender. Therefore, it appears that transgender access to swimming in events is at the mercy of the organisation’s administration with no clear or strict rules to apply. Swimming Australia has taken a more conservative approach through silence, whereas the IOC approach is arguably too progressive according to the general medical stakeholder view. There has been no case law around s 42 of the SDA concerning the specific issue of transgender athletes and swimmers. As such, this essay’s law reform suggestions are formed by stakeholder views and the available evidence of hormone differences between cis-gendered athletes and transgendered athletes. It is evident that trans people wish to live a normal life, to be part of the social fabric of society which involves participating in sport.^[63] This essay demonstrates the AHRC Guidelines intend to prevent transgender people from being actively discriminated against. However, the policy is clearly concerned with the fairness of competition, in particular where cis-gendered competitors are concerned. The policy refuses to force sporting competitions and organisations to allow transgender athletes to compete in their identified races, but it appears to support the exemption that allows competitions to prevent the competing of transgender people in gender-based heats. Essentially, the guidelines welcome the inclusion of trans competitors, but at the, same time they are restricted by the laws that govern the guideline, namely section 42 of the SDA. Although these guidelines are clearly a step towards catering to the rights of transgender athletes, the guidelines allow for much discretion for Swimming Australia to make decisions about whether a transgender person is permitted to enter a race under their identified gender. Therefore, it cannot be said that transgender competitor rights or obligations in Australia are adequately addressed and there appears to be much room for law and policy suggestions as well as reform. This ought to be addressed with consideration to both community sport level and elite levels as well as individual and team sports. For community spot levels, particularly in team sports, policies and laws should take a more relaxed view on hormones and performance, because community sport competitions are predominantly social and exercise focused.^[64] Elite sporting competitions involve higher stakes with professional athletes. As such, a stricter approach ought to apply.

B Reform

This paper has highlighted the growing dissatisfaction of stakeholders with the inadequate express protection of trans athletes’ rights to participate in sport. Therefore, law reform that initiates an aim to balance inclusivity and fairness to women in sport is urgently required.^[65] The USA Swimming ‘Athlete Inclusion, Competitive Equity, and Eligibility Policy’ offers suitable guidance to Australian policy and law reform. The fact that Lia Thomas has been permitted to compete in a gendered heat under her identified gender is a practical implementation of tolerance and welcoming of trans athletes in the US.^[66] The above paragraphs demonstrate that transgender athletes, particularly transwomen are not adequately reflected in Australian law. It is unclear whether Australia has faced a similar challenge as seen with Lia Thomas as to whether to permit a transwoman swimmer to compete at a high level in her identified gender field, or whether any athletes who have attempted to do so have simply been prevented under section 42 of the SDA permit. However, the SDA ought to adopt a similar approach to the USA Swimming approach requiring a maximum testosterone level as decided by Australian medical experts. The adoption of the approach ought to be reflected in the Statute through a change of language. The Act currently stipulates that nothing in Division 1 or 2 is rendered discrimination on the basis of sex.^[67] This paper suggests a law reform by flipping the language to be more inclusive of trans athletes except for, in exceptional circumstances. The suggested language instead stipulates:

Divisions 1 and 2 render it unlawful to discriminate on the ground of sex, gender identity or intersex status by excluding persons from participation in any competitive sporting activity, except for in the following circumstance:

1. The strength, stamina or physique of the person would render an unfair advantage to the other competitors in the relevant sport.

a. The above condition may be determined by medically advised and recommended hormonal levels as the test to determine whether an unfair advantage is present.

This reform suggestion creates an onus on the trans athlete to ensure their hormone regulation is compatible with their identified gender, however, it is more inclusive than Australia’s current policy and would only operate to exclude those people who have a higher risk of posing an unfair advantage. Such a law reform is to be formulated with the recognition of the significant differences between community team sports and elite sports.^[68] Whilst there is much more evidence required on hormonal and biological advantages, fairness ought not to be disregarded until more research is available.^[69] Therefore, this law reform suggestion ought to be implemented over the IOC guidelines until further research is able to offer a definitive guide.

Further consideration ought to also be given to the fact that women have historically been disadvantaged and subjected to discrimination. This essay also highlights that discrimination is experienced at a heightened level by transwomen, particularly those who wish to compete in sports such as swimming. International law such as the Universal Declaration of Human Rights 1948 (UDHR), International Covenant on Economic, Social and Cultural Rights 1976 (ICESCR), International Covenant on Civil and Political Rights 1976 (ICCPR) and Convention on the Elimination of All Forms of Discrimination Against Women 1979 (CEDAW) ought to make specific mention regarding transgender people so that sporting policies may encourage fields for people with hormone levels that do not fit within the male or female criteria but allows competing anyway.^[70] Only specific actions like this will create a better recognition and catering for trans people in sporting competitions globally. Whilst the international conventions promote non-discrimination and gender equality, they do not specify transgender people which unintentionally excludes them from the protection of the right to participate in sport.^[71] The consequence of this is that there are not enough protections for transgender people in sport and that this is a failure to recognise human rights.^[72] Therefore, international laws and conventions ought to make express mention of transgender people and their rights to sporting to guide state legislation and policies to cater more appropriately for trans athletes whilst ensuring women are not disproportionately disadvantaged in sports such as swimming.

V CONCLUSION

In conclusion, this essay has demonstrated that the Australian and International Laws inadequately address transgender people’s rights in swimming competitions. The inconsistency of stakeholder arguments has caused much inconsistency and hesitation of the law to involve itself too deeply in governing the rights of transgender athletes in sport. The only policy which truly caters to trans people’s rights in the most inclusive way is the IOC policy. However, this policy is problematic when balancing the issues of inclusivity with fairness when considering cis-gendered women’s rights to compete in a fair field in sport. This is particularly the case in elite swimming events where strength, stamina and physique could cause significant advantages to some competitors. The balancing of fairness with inclusivity should see policies and guidelines such as USA Swimming’s policy which develops a criteria to allow transwomen to compete as their identified gender. The US policy requires a much more strenuous process for male-to-female transitioned or transitioning athletes. But such a process is required to protect the fairness of women’s sport. Further development is needed for heats where some people may not meet the strict hormonal criteria and such people must not be excluded from sport just because of their hormone levels. Swimming organisations need to create a gender-neutral heat with athletes competing against other athletes with similar hormone genetics to themselves. Finally, policies ought to take into consideration the differences between elite and community competition and the strictness of hormone levels should be more flexible for community sporting competitions.

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^[1] Wesley King, Jaclyn Hughto and Don Operanio, ‘Transgender Stigma: A Critical Scoping Review of Definitions, Domains and Measures Used in Empirical Research’ (2020) 250 Social Science & Medicine 112867, 112867.

^[2] Jamie Cleland, Ellis Cashmore and Kevin Dixon, ‘Why Do Sports Fans Support or Oppose the Inclusion of Trans Women in Women’s Sports? An Empirical Study of Fairness and Gender Identity’ (2021) 7(1) Sport in Society 1, 4 (‘Cleland’).

^[3] Ibid.

^[4] International Olympic Committee. 2015. “IOC Consensus Meeting on Sex Reassignment and Hyperandrogenism.” 1, 2

<https:// stillmed.olympic.org/Documents/Commissions_PDFfiles/Medical_commission/2015-11_ioc_consensus_meeting_on_sex_reassignment_and_hyperandrogenism-en.pdf>.

^[5] Cleland (n 2) 4.

^[6] Sean Ingle, ‘Trans Women Should Not Have to Reduce Testosterone, Say New IOC Guidelines’ The Guardian (online 17 November 2021) <https://www.theguardian.com/sport/2021/nov/16/trans-women-should-not-have-to-reduce-testosterone-say-new-ioc-guidelines>.

^[7] International Olympic Committee, IOC Framework on Fairness, Inclusion, and Non-Discrimination on the Basis of Gender Identity and Sex Variants (2021) <https://olympics.com/ioc/news/ioc-releases-framework-on-fairness-inclusion-and-non-discrimination-on-the-basis-of-gender-identity-and-sex-variations>.

^[8] NSW Government, ‘Transgender Students in Schools’ (Rights and Accountability) (Legal Issues Bulletin 55, December 2014) <https://education.nsw.gov.au/about-us/rights-and-accountability/legal-issues-bulletins/transgender-students-in-schools>.

^[9] Australian Human Rights Commission ‘Guidelines for the inclusion of transgender and diverse people in sport’ (2019) <https://www.sportaus.gov.au/integrity_in_sport/transgender_and_gender_diverse_people_in_sport > (‘AHRC Guidelines’).

^[10] Ibid; Sex Discrimination Act 1984 s 42 (‘SDA’).

^[11] SDA (n 10) s 42(e).

^[12] AHRC Guidelines (n 9) 24.

^[13] Ibid.

^[14] Ibid; Fernely v The Boxing Authority of New South Wales [2001] FCA 1740 Wilcox J.

^[15] Swimming Australia ‘Swimming Rules’ (March 2021) SW 10.1 1, 18 available at: <https://www.swimming.org.au/integrity-policies-rules/rules> (‘Swimming Australia’).

^[16] Ibid 4.

^[17] Ibid 4.

^[18] Matt Boneseel, ‘USA Swimming Issues New policy for Transgender Athletes in Elite Competition’ The Washington Post (online, 1 February 2022) <https://www.washingtonpost.com/sports/2022/02/01/usa-swimming-transgender-policy/>.

^[19] Swimming Australia ‘By-Laws’ (October 2021) CBL 24.7 1, 12 available at: <https://www.swimming.org.au/integrity-policies-rules/rules>.

^[20] ‘Swimming Australia Teams up with Pride In Support to Increase LGBTQ Inclusion’ Swimming Australia (web page 1 December 2020) <https://www.swimming.org.au/news-articles/swimming-australia-teams-pride-sport-increase-lgbtq-inclusion>.

^[21] AHRC Guidelines (n 9) 19.

^[22] Disability Sport Australia (‘DSA’).

^[23] Disability Sports Australia, Member Protection Policy (Version 7) 2014 1, 8. <http://media.wix.com/ugd/2bc3fc_63bb33953f554b7ab0f abfdde502d83d.pdf.> accessed 10 April 2022 (‘DSA’).

^[24] Ibid 8.

^[25] Ibid.

^[26] National Collegiate Athletic Association (‘NCAA’); Phil Lutton, ‘Lia Thomas, Transgender Swimmer, is Sending Shockwaves Through Her Sport’ Sydney Morning Herald (online, 19 March 2022) <https://www.smh.com.au/sport/swimming/lia-thomas-transgender-swimmer-is-sending-shockwaves-through-her-sport-20220318-p5a5uu.html>.

^[27] USA Swimming ‘Athlete Inclusion, Competitive Equity, and Eligibility Policy’ 1 February 2022 41, 41. <https://www.usaswimming.org/docs/default-source/governance/governance-lsc-website/rules_policies/usa-swimming-policy-19.pdf> (‘USA Swimming’).

^[28] Ibid 42.

^[29] Ibid.

^[30] Ibid.

^[31] Ibid.

^[32] Ibid.

^[33] Ibid 43; Katie Barnes ‘USA Swimming announces new policies for transgender women in elite competition’ ESPN (online 2 February 2022) <https://www.espn.com.au/olympics/swimming/story/_/id/33196538/usa-swimming-announces-new-policies-transgender-athletes-elite-competition> ; Cleland (n 2) 4.

^[34] USA Swimming (n 26) 43.

^[35] Ibid 43.

^[36] April McLennan, ‘Transgender Advocates Speak Out Against Senator Claire Chandler’s Proposal to “Save” Women’s Sport”, ABC NEWS (Online, 23 February 2022) <https://www.abc.net.au/news/2022-02-23/transgender-advocates-speak-out-against-transgender-sport-bill/100853022> (‘McLennan’).

^[37] Ibid.

^[38] Ryan Storr et al., ‘Are We There Yet? (Illusions of) Inclusion in Sport for LGBT+ Communities in Australia’ (2022) 57(1) International Review for the Sociology of Sport 92, 93.

^[39] Ibid 95.

^[40] Cathy Devine, ‘Female Olympian’s Voices: Female Sports Categories and International Olympic Committee Transgender Guidelines’ (2022) 57(3) International Review for the Sociology of Sport 335.

^[41] Ibid 339.

^[42] Ibid 341.

^[43] Ibid 342.

^[44] Ibid 344.

^[45] Ibid.

^[46] Ibid 352.

^[47] ‘Season 2022, Episode 10’, Insight (Special Broadcasting Service, 2022).

^[48] Tim Fernandez, ‘Olympian Emma McKeon Says Rules Allowing Transgender Athletes to Compete Need to be ‘Fair’’ ABC News (Online, 21 April 2022) <https://www.abc.net.au/news/2022-04-21/emma-mckeon-transgender-comments/101005456?fbclid=IwAR0wF4I8ci-UgceaCctD0f3yR6ScW16TggVMr7gLbcEVJQGLERwNgdIYHuQ>.

^[49] Ruth Jeanes, Karen Lambert and Justen O’Connor, Evaluating LGBTI+ Inclusion within Sport and the Pride Cup Initiative (Final Report 2020) 2, 33.

^[50] Noah Riseman, ‘A History of Transgender Women in Australian Sports, 1976-2017’ (2021) 1 Sport in History 1.

^[51] Richard Clark et al., ‘Large Divergence in Testosterone Concentrations Between Men and Women: Frame of Reference for Elite Athletes in Sex-Specific Competition in Sports, a Narrative Review’ (2019) 90(1) Clinical Endocrinology 15.

^[52] Pam Sailors ‘Transgender and Intersex Athletes in the Women’s Category in Sport’ (2020) Sport, Ethics and Philosophy 14(4) 419, 421; Swimming USA; IOC 2015; Cleland (n 2) 4.

^[53] Bethany Jones et al., ‘Sport and Transgender People: A systematic Review of the Literature Relating to Sport Participation and Competitive Sport Policies’ (2016) 47(4) Sports Medicine 701 (‘Jones et al.,’).

^[54] Andrew Richardson and Mark Chen, ‘Comment on “Sport and Transgender People: A systematic Review of the Literature Relating to Sport Participation and Competitive Sport Policies”’ 2020 50(10) Sports Medicine 1857 (‘Richardson’).

^[55] Ibid.

^[56] David Handelsman, Angelica Hirschberg and Stephane Bermon, ‘Circulating Testosterone as the Hormonal Basis of Sex Differences in Athletic Performance’ (2018) 39(5) Endocrine Reviews 803, 803 (‘Handelsman’).

^[57] Ibid 805.

^[58] Ibid 816.

^[59] Ibid 804.

^[60] McLennan (n 35).

^[61] Sandra Fredman (2003) “Beyond the Dichotomy of Formal and Substantive Equality: Towards a New Definition of Equal Rights.” In Temporary Special Measures. I. Boerefijn and others (Eds.). Antwerp: Intersentia.

^[62] Emma Blakey, ‘Women’s Participation in Sport: How is it Regulated in International Human Rights Law, and is Australia Meeting its International Obligations?’ (2018) 24(3) The Australian Journal of Human Rights 292, 292; United Nations Convention Against All Forms of Discrimination Against Women, opened for signature 18 December 1979, 1249 UNTS 13 (entered into force 3 September 1981) Art 13 (‘CEDAW’).

^[63] Ryan Storr et al., (n 37) 105.

^[64] Jones et al., (n 52) 712.

^[65] Seema Patel ‘Gaps in the Protection of Athletes Gender Rights in Sports – A Regulatory Riddle’ (2021) 21 The International Sports Law Journal 257, 273 (‘Patel’).

^[66] Io Dodds, ‘Critics Accuse Trans Swimming Star Lia Thomas of Having an Unfair Advantage. The Data Tells a Different Story’, The Independent (online 2 April 2022) <https://www.independent.co.uk/news/world/americas/lia-thomas-trans-swimmer-data-b2049615.html>.

^[67] SDA (n 10) s 42.

^[68] Handelsman (n 55).

^[69] Ibid; Ryan Storr et al., (n 37) Jones et al., (n 52)., Richardson (n 53); Bethany Jones et al., ‘Authors’ Reply to Richardson and Chen: Comment on “Sport and Transgender People: A Systematic Review of the Literature Relating to Sport Participation and Competitive Sport Policies”’ (2020) 50(10) Sports Medicine 1861, 1862.

^[70] Universal Declaration of Human Rights GA Res 217A (III), UN GOAR, UN Doc a/810 (10 December 1948); International Covenant on Economic, Social and Cultural Rights, opened for signature on 16 December 1966, 993 UNTS 3 (entered into force 3 January 1976); International Covenant on Civil and Political Rights, opened for signature on 19 December 1966, 999 UNTS 171 (entered into force 23 March 1976; CEDAW (n 61).

^[71] Patel (n 64) 258.

^[72] Ibid 257.