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Volume 23 No. 14
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Murky waters ahead for gender debate in sports

The debate about gender, sex, genetics and biology in sports was recently elevated by South African track star Caster Semenya. A two-time Olympic Gold medalist in the women’s 800m, Semenya was suspended from the 2019 IAAF World Athletics Championships following a Swiss court ruling bringing this gender issue to the forefront.

In this regard, using the complex term “gender” will create many nuances, points of view and blurry definitions. So, we’re going to ask you, the reader, to focus on the important issues we’re trying to share (and not our limited expertise in the area).

This gender debate is neither new nor local in origin. Indeed, the matter has featured in other parts of society in many forms, from bathroom access in public settings, recruitment in the military and CEOs of Fortune 500 companies.

To be clear, we believe people have the right to choose their gender. The World Health Organization (WHO) agrees. Certainly, given all the biological and sociological complexities around sex and gender, it’s unimaginable telling someone else they must fit into a particular gender or sexual orientation when that individual wants to be the other, neither or both. 

Now, let’s bring high performance sports into the discussion where physiologists tell us there are differences between males and females in terms of muscle, mass, height, weight, hematocrit and more. Here’s where things get complicated.

For certain sports, the “male” biology can create advantages for on-field performance (e.g., basketball and height; marathon running and red blood cell count). Thus, an argument can be made that athletes with a male biology — but identifying as a female — may enjoy advantages that others could argue are unfair.  

Importantly, there are also sports where the opposite (a “female” biologic advantage) reverses the scenario. Esports, long-distance swimming, ultra-marathoning, equestrian, gymnastics, rock climbing, shooting and others have been suggested and debated as examples.

WHO defines gender as: “the roles, behaviours, activities, attributes and opportunities that any society considers appropriate for girls and boys, and women and men. Gender interacts with, but is different from, the binary categories of biological sex.” This means (by one formal definition) a transgender person is someone who identifies or expresses self from a gender perspective in a way that differs from their assigned (or birth) sex. 

That’s why a quiet little story coming out of Hartford, Conn., intrigued us. It’s the legal case where a group of female high school track athletes brought a lawsuit against transgender athletes who were competing against them. The high school girls felt they were at a disadvantage; it was unfair and they were losing championships and scholarships as a result. 

This high school case, while largely under the radar, warrants sincere consideration from sports practitioners because as we saw in the earliest days of gender discrimination (recall Little League banning 12-year-old Maria Pepe in 1972), “from little things, big things grow.”

In Connecticut, transgender athletes can compete in high school sports based on the student’s identified gender. This aligns with the societal perspective shared above, yet when “high performance” outcomes enter the discussion, it complicates matters and the lawsuits fly.  

From a high-performance perspective, one view holds that any athlete competing based on their expressed gender and not their birth biology could potentially hold a competitive advantage based on that very biology.  

Enter the law firm Alliance Defending Freedom and their federal complaint — on behalf of three Connecticut high school female athletes — to the U.S. Education Department’s Office for Civil Rights on the basis of fair competition and Title IV. In this case, the lawyers are suggesting female athletes deserve a playing field that is level and fair.

Why should sports organizations care about this case? As humans, there are a long list of reasons, not the least of which is the mental health of all involved. For sports practitioners, though, unfair competitive advantages are supposedly bad for business.

This was evident in 1976 when the former Richard Raskind underwent a male-to-female sex reassignment and sought to play professional tennis as Renée Richards. The U.S. Tennis Association initially wanted genetic testing (which Richards refused) and when the USTA barred Richards from competing in the U.S. Open, Richards sued and won. The New York Supreme Court ruled in Richards’ favor. Lawsuits mean lawyers and unbudgeted costs.

So, where are we? Well, an open-door policy for participation is very good. It’s inclusive, equal-minded and right. We want everyone to play sports and feel comfortable doing so. Our industry needs more participation in leagues, camps, clubs and events where gender is not even part of the discussion.

But when elite performance is the topic, unfair competitive advantages are never a good policy. And yet, competitive parity and level playing fields are often illusory. The Boston Red Sox’s payroll is nearly four times higher than that of the Tampa Bay Rays.

In the future, there will be more transgender athletes competing and winning medals. They will take places on team rosters and disrupt the status quo. 

To that end, we’d all be wise to prepare for this coming eventuality and get proactively busy welcoming the challenge. But don’t take our word for it. Just set aside legal contingency funds. More lawsuits are coming.

 

Rick Burton is the David B. Falk Professor of Sport Management at Syracuse University and former commissioner of Australia’s National Basketball League. Norm O’Reilly is director of the International Institute for Sport Business & Leadership at the University of Guelph and partner consultant at T1.

Questions about OPED guidelines or letters to the editor? Email editor Jake Kyler at jkyler@sportsbusinessjournal.com