INTRODUCTION

Traditionally, male and female athletes have competed in separate categories. However, the recognition of a third gender has blurred this distinction, making it more challenging to categorize sports based on gender without risking perceptions of arbitrariness or discrimination.

While equal rights for the LGBTQ+ community are guaranteed on paper, are they being upheld in practice? Does not recognizing them as a separate category for fair participation in sports align with reasonable classification under the constitutional mandate?

This blog analyzes the legal landscape to address these questions, focusing on the Olympics, transgender rights in India, and the validity of current sports categories, proposing ways to improve fairness and inclusivity.

THE CURRENT SITUATION

Recently, at the world’s largest sports stage—the Olympics—a significant issue emerged regarding the participation of transgender athletes. Two athletes, who were biologically male but identified as female, were allowed to compete in the women’s boxing competition. Italian boxer Angela Carini withdrew from her bout after just 46 seconds, following a heavy punch from her Algerian opponent, Imane Khelif. After receiving the blow, Carini turned toward her corner, and her coach signaled her decision not to continue. This fight grabbed attention due to the reason that Khelif was considered transgender and was competing in the women’s category because she identifies as female. However, later on, her father has shown the documents which show that she was born a female.

Notably, Imane Khelif had been disqualified from the World Boxing Championship held last year, as the International Boxing Association (IBA) follows different rules and regulations for athlete qualification. Due to these regulations, Khelif was barred from competing. However, the International Olympic Committee (IOC) has stopped adhering to the WBA’s rules as it voted to remove the International Boxing Association (IBA) as the regulatory body. The IOC chairperson emphasized that participants should be able to compete without discrimination. Thus, Khalif was allowed to participate in the competition.

In an interview, Angela Carini expressed her shock at the strength of Khelif’s punch, attributing it to biological differences, which she believed significantly impacted the fairness of the competition. This is not an isolated controversy. Taiwanese boxer Li Yu-Ting, who was also barred from the World Boxing Championship, was allowed to compete in the Paris Olympics this year.

The International Boxing Association had previously disqualified athletes like Khelif last year because they possessed XY chromosomes, which are typically found in males. The IOC, on the other hand, stopped blanket sex testing in 1999, opting instead to use testosterone tests as the main criteria for athlete eligibility in such cases.

This situation highlights the ongoing debates about fairness, inclusion, and the balance between equal rights and the integrity of competition in sports.

GLOBAL LEGAL FRAMEWORKS AND CHALLENGES FACED BY TRANSGENDER ATHELETES

Transgender athletes are governed by different laws across the globe, and each set of regulations has varying consequences for these athletes. In some countries, transgender individuals are allowed to participate in sports, while in others, they are not. Similarly, different governing bodies have their own rules and regulations regarding the inclusion of transgender athletes.

In 2015, the IOC adopted new principles regarding transgender athletes giving transgender athletes the chance to participate in competitions to respect their free choice of gender identity along with a rule stating that an athlete must declare their gender, and this declaration cannot be changed for at least four years. This was a significant step as it moved forward the right of transgender athletes to participate while respecting a person’s freedom of choice of their identity and not letting it be a barrier to their participation.

Other sports organizations have established different criteria. For instance, the International Swimming Federation (FINA) allows transgender athletes to compete in women’s swimming if they did not undergo male puberty beyond Tanner Stage 2 or past the age of 12 whichever is later. Similarly, the British transgender cycling policy, updated in 2023, requires athletes to maintain a testosterone level below 2.5 nmol/L at all times.

In India, the participation of transgender athletes has been met with mixed responses. While some competitions have allowed transgender individuals to participate, others have denied them this right. The debate over the inclusion of transgender athletes has even reached the courts. For example, the Kerala High Court ruled that transgender athletes should be allowed to participate in competitions if there is no distinct category made for them, with Justice Arun emphasizing that every transgender person deserves the right to compete.

However, there have been instances where athletes were stripped of their medals for failing to meet specific criteria. Santi Soundarajan, for example, had her silver medal revoked after failing a sex identification test, which deemed her ineligible to compete in the women’s category due to not possessing certain female characteristics. Another case involves sprinter Dutee Chand, who was initially barred from competing due to hyperandrogenism, the court ruled in her favor thus allowing her to compete in competitions.

To protect the rights of transgender individuals, the Indian government enacted the Transgender Persons (Protection of Rights) Act in 2019. This act aims to prevent discrimination against transgender people. Furthermore, in the landmark case of National Legal Services Authority v. Union of India, transgender individuals were legally recognized as the ‘“third gender’” and hence should be given protection under Article 15 of the Indian Constitution, which guarantees the right to not discriminate on the grounds of sex.

CRITICISM AND SUGGESTIONS

The primary question that arises in the current scenario is whether it is fair to allow two biologically different individuals to compete in the same competition. Historically, male and female athletes have participated in separate categories because of distinct biological differences. Males typically possess greater physical strength than females and someone who retains the biological advantages of a male but identifies as female should not be permitted to compete alongside biologically female athletes. In light of this, the author would like to suggest few initiatives:

More advanced tests

It is crucial to establish more accurate tests for categorizing athletes. Studies have shown that some females also possess XY chromosomes, further complicating the issue. Therefore, better testing mechanisms must be developed to ensure that athletes are categorized appropriately, based on comprehensive biological criteria, rather than relying on oversimplified conditions that may fail in certain cases.

There is also a need for a clearer and more detailed differentiation between athletes. Those who are biologically superior in terms of strength compared to their female counterparts should be evaluated carefully to determine if they can legitimately compete in the same competitions. This would ensure a level playing field for all participants.

Application of Principle of reasonable classification

Article 14 of the Indian Constitution guarantees the right to equality while permitting reasonable classification. Courts have emphasized its significance and provided guidelines for its interpretation. The provision acknowledges that legislation must address diverse needs, treating “equals equally and unequals unequally“ based on relevant distinctions. Reasonable classification requires the government to consider such differences when framing laws that cater to varying social realities. Courts have even ruled that, in some cases, an individual may constitute a class by themselves.

The judiciary has held that reasonable classification must satisfy two conditions: it should be based on an intelligible differentia—a clear distinction that sets the group apart—and this differentia must have a rational nexus with the objective of the legislation. For instance, the Maternity Benefits Act, 1961 grants benefits exclusively to pregnant working women, addressing their specific needs. Similarly, accommodations for persons with disabilities, such as extra time in examinations and reservations, ensure their inclusion and progress, reflecting tailored provisions for diverse groups. Moreover, the child labor (prohibition and regulation) act, 1984 protects children below the age of 14 years.

The government must, thus, also differentiate between cisgender and transgender athletes, as compelling them to compete in the same category undermines fairness and inclusivity. Establishing a separate category, akin to the Paralympics, ensures transgender athletes are not deprived of opportunities or forced to sacrifice their aspirations due to their unique identity. This approach satisfies the criteria for reasonable classification: the distinct identity of transgender athletes serves as the intelligible differentia, and creating a separate category has a rational nexus with promoting equality in sports, providing a level playing field, and fostering their inclusion and progress..

This situation can also be likened to the ban on performance-enhancing drugs in sports. Just as drugs are prohibited because they provide an unfair advantage, the same logic applies to biological differences that give certain athletes an edge. It is imperative to address these disparities through appropriate measures to maintain fairness in competition and uphold the integrity of sports.

At the same time, on the contrary, reports suggest that if a person undergoes gender transition before reaching puberty, they do not gain any undue advantage over others. Furthermore, it is not just that transgender athletes have been allowed to compete in the Olympics; they are also permitted to participate in sports across more than 20 states.

Therefore, certain steps should be undertaken, such as conducting thorough medical assessments to ensure that sex-reassignment surgery has occurred, eliminating any unfair advantages, and putting athletes on an equal footing. Additionally, transgender athletes should be required to provide proof of legal gender recognition. With proper measures and tests to address these differences, transgender individuals can be fairly allowed to compete in sports, as they are in several regions.

Moreover, government intervention is essential to effectively address this issue and implement the necessary changes. One of the primary roles of a government is to care for its people, ensuring their welfare, social inclusion, and equal opportunities. Such intervention becomes even more critical when a community or nation faces systemic challenges and requires support to be uplifted, empowered, and brought on par with others, thereby fostering overall development and equality.

ANALYZING LITERATURE ON NON-BINARY INCLUSION

The debate on incorporating non-binary genders into various fields resurfaces repeatedly, often making headlines or becoming the focus of public discourse. Numerous articles have analyzed the inclusion of non-binary individuals and its implications. While many explore the social landscape, propose measures for inclusion, and advocate for equality, they often fail to address the deeper, more personal aspects of the issue.

These discussions primarily focus on equality or specific instances of inclusion. Additionally, the scope of some of these articles often addresses the issues within a particular country along with in some articles just being centered on the opinions or statements made by athletes and public figures.

However, some articles provide meaningful insights and references, shedding light on how these issues affect not just individuals but also reflect systemic shortcomings in society. They argue that denying people the opportunity to fully express themselves represents a societal failure and undermines the principles of equality and inclusivity. By considering various perspectives and dimensions, these writings attempt to offer a more comprehensive understanding of the challenges faced by non-binary individuals and propose thoughtful solutions.

SOCIETAL IMPACT OF INCLUSION

It is evident that measures to include non-binary individuals profoundly impact their personal lives. However, the repercussions extend beyond individuals and affect society as a whole. When opportunities are provided to these individuals, it paves the way for broader societal benefits, such as fostering equality, challenging prejudices, and cultivating a more inclusive mindset.

By granting non-binary individuals equal footing in society, we contribute to their ability to live with dignity and without discrimination. Moreover, such initiatives can educate children and other members of society about treating all individuals equally, irrespective of their gender identities. This, in turn, helps eliminate prejudices, encourages acceptance, and creates an environment where others who fear societal rejection feel empowered to express themselves authentically.

Introducing and integrating non-binary individuals into all aspects of society has far-reaching implications. Society is a reflection of its members, and how they are treated defines its character. If one segment of society is denied the ability to express itself, it reflects a collective failure. Conversely, when everyone is given the opportunity to participate equally, society flourishes as a whole. This inclusivity ultimately drives progress and strengthens the social fabric, enabling growth on a collective level.

CONCLUSION

Sports is a field where individuals dedicate countless hours to compete for glory, and allowing someone with an unfair advantage to participate undermines the efforts of others and the spirit of competition. The essence of sportsmanship lies in competitors being on equal footing, where any advantage comes from hard work and dedication—not inherent biological differences.

While transgender athletes should not be excluded from competing based on their assigned gender at birth, it is crucial to establish fair classifications and testing systems. These measures would allow transgender athletes to pursue their dreams while ensuring no one is placed at an unfair disadvantage.

To preserve the integrity of sports, we must create an inclusive environment where everyone can compete without discrimination. At the same time, ensuring that participants are competing on an equal footing aligns with the principle of treating “equals equally and unequal unequally,” maintaining fairness in competition.