Gender Verification in Sports: Controversial U.S.Experience

Abstract

Uncertainty concerning admission to various levels of sports competitions that remains at the level of international organizations results in the situation when law-makers in a number of States express their view of the matter. To this end, experience of the USA in this sense is of particular interest as in the USA the conflict between the principle of equality, particularly with respect to national minorities, and fair competition in sports is resolved in differnt ways. On the one hand, the problem is politicized. On the other hand, states exercise unprecedented powers in the field of rulemaking, which creates prerequisites for the formation of diametrically opposed approaches that sometimes do not comply with the approach applied at the federal level. While a broad interpretation of gender that includes sexual orientation and gender identity, has been adopted at the federal level, in some states, e.g. Idaho, in deciding the question of admission to competitions it is prescribed to focus on the biological sex formed at birth. Opponents of the Idaho law can be divided into two groups: 1) individuals focusing on the ethical side of the issue arguing that under the new law anyone can question the gender of an athlete, which would lead to additional examinations; and 2) individuals who advocate rights of transgenders. Thus, law-makers pay more attention to substantiating the need for a legislative decision that appeals not only to jurisprudence and doctrinal approaches, but also to the results of medical research. A number of states have followed this approach and, while not everywhere, the idea of gender verification in sports has been brought to a logical conclusion that the very possibility of deviating from federally enshrined non-discrimination standards based on the broad interpretation of gender has created a unique opportunity for derogation from falsely understood ideas of tolerance and political correctness.