Law and Regulatory Barriers to Increasing Inclusivity for Trans Athletes

Abstract

This chapter offers a legal perspective on the regulatory barriers to inclusivity for trans athletes. Recent challenges to gender eligibility rules in sport have prompted a review of the inclusion of trans athletes. Trans inclusion is reaching beyond sport and there are increasing concerns about adequate human rights protections. At the same time, societies in the global North are experiencing more diversity of sex and gender identity, with calls for legal reform of gender status, particularly in relation to trans rights. This chapter assesses the intersection of these three developments in sport, law and regulation, and society, in the context of trans athletes, whose participation presents a unique dilemma for the traditional sex categories of sport because of the common assertion that trans females enjoy a potential biological athletic advantage. The chapter shifts the debate around trans inclusion to a legal rather than scientific focus and critiques the human rights shortfalls in the current trans sport policies. Following an outline of the legal status of trans people, gender laws, and the international human rights framework, the limited enforceability of human rights upon sports bodies will be demonstrated. I suggest that this limited enforceability negatively impacts upon the inclusion of trans athletes. In conclusion, recommendations will be made to achieve greater inclusivity through a firmer enforcement of law and human rights in sport, and a refreshed approach to gender-related human rights principles in society.