Competitive Fairness or Inclusion: Balancing Governance and Human Rights Law

Abstract

After the first transgender athletes participated in the 2020 Tokyo Olympics, some called for the immediate exclusion of transgender women in sports while others argue that this exclusion is discriminatory behaviour in violation of human rights law. Under current standards, the International Olympic Committee (IOC) has sought to address the balance between fairness and inclusion by allowing eligibility to be decided on a sport-by-sport basis for all transgender athletes (IOC, 2021). What if an international federation or national governing body concludes that transgender athletes should be prohibited or subjected to rigorous conditions for participation? Would those qualifications stand up to legal challenge by an affected athlete? Will some athletes have better legal protection based on the location of their challenge?

The United States (US) and United Kingdom (UK) have domestic legal provisions that protect transgender individuals from discrimination based on their gender identity whereas the European Union (EU) includes protections based on sex alone (Patel, 2021). This chapter will discuss transgender inclusion policies in Olympic sport and address how potential challenges to the policies will be handled in court using existing case law. Legal precedent in similar challenges is rare. However, when eligibility policies do not explicitly ban transgender athletes or appear to be a targeted response to a specific athlete or individuals, it becomes more likely that those policies will not be considered discriminatory. Courts are hesitant to interfere in a governing body's policies if that organization appears to have a legitimate reason for its sport governance decisions.

Citation

Coffey, L.M. (2022), "Competitive Fairness or Inclusion: Balancing Governance and Human Rights Law", Greey, A.D. and Lenskyj, H.J. (Ed.) Justice for Trans Athletes (Emerald Studies in Sport and Gender), Emerald Publishing Limited, Leeds, pp. 63-74. https://doi.org/10.1108/978-1-80262-985-920221005