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  /  06.30.2021

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In a time when the nation is purportedly moving to a more progressive state, one fight that often falls between the cracks is transgender rights in sports. As the world prepares for a delayed Summer Olympics in Tokyo, the issue is taking centerstage once again. As of March, nearly 35 bills had been proposed by state legislators to limit or ban transgender women from competing in women’s sports. Two short years ago, there were only two such bills. Said legislation only addresses transgender women due to the physiological features that many feel give them a competitive advantage over “cisgender” women. The term “cisgender” refers to biological women or those that identify with the gender assigned to them at birth.

The Mississippi Fairness Act, signed into law by Governor Tate Reeves in March, cites “inherent differences between men and women” as the basis for blocking trans women from female sports. Meanwhile, North Carolina is a state that doesn’t want any parts of that type of smoke. The bitter aftertaste of the HB2 aftermath is still fresh on the palate of the Tar Heel State. Five years ago, legislators passed what became known as the “bathroom bill” requiring citizens to use the restroom accommodations according to the gender assigned at birth. Pegged as discrimination, the bill cost the state roughly $4 billion in revenue as large sporting and entertainment events changed venues in protest. The NCAA relocated their championship games and the NBA moved its All Star Game from Charlotte. The bill was repealed a year later. Fast forward five years and House Bill 358 legalizing discrimination toward transgender athletes was set aside by the North Carolina House of Representatives.

If it ain’t broke, then don’t try to fix it. At least that’s the approach House speaker Tom Moore is taking. Speaking with the News & Observer, Moore stated, “A wise legislature does not go out looking for social issues to tap.” There had been no complaints in the state on the matter. That’s not necessarily a hard concept to digest when you take into account that the percentage of transgender women competing in sports is very small. Whether the decision is rooted in ethics or capitalism remains to be seen. On the heels of Moore’s announcement, Governor Roy Cooper announced Apple’s plans to inject $1 billion into the state’s economy and build its east coast campus in Raleigh, North Carolina.

Even though many states reported no such complaints, they have forged ahead with legislation that they argue is necessary to maintain fairness in female athletics. The surface level argument is that men are routinely stronger and faster than women due to the presence of the testosterone hormone. While some argue that there is no scientific evidence that the hormone offers a competitive edge, that’s where things get a bit tricky. Most performance-enhancing drugs, prohibited by all sports on all levels, contain synthetic substances that are similar to testosterone. These substances enhance muscle growth and recovery, allowing athletes to work out harder and more often. So, if the presence of the hormone offers unfair advantage, how does one argue that the playing field is level amongst cisgender women and transgender women? Furthermore, is the inclusion of one group come at the cost of another group’s right to fairness in competition?

This is a slippery slope and sports governing bodies are trying their best not to hydroplane. The thing is, while not prevalent, when there is a case or controversy, it is a BIG deal. In 2019, World Athletics, track and field’s governing body, ruled that transgender women competing internationally in events between the 400 meters and one mile must maintain testosterone levels no more than 5 nanomoles per liter for 12 months before being declared eligible to compete. The previous limit of 10 nanomoles per liter had been in effect since 2015. The updated rule prohibited 400-meter hurdler Cece Telfer from participating in the recent U.S. Olympic Trials. She became the first openly transgender woman to win an NCAA title in 2019 while competing for Division II school Franklin Pierce. After initially competing for the men’s team, she took time off before joining the women’s team. USA Track and Field was notified a week before the Trials that Telfer had not met the guidelines and offered their support by way of a statement. USATF said it “strongly supports inclusivity and providing a clear path to participation in the sport for all, while also maintaining competitive fairness.

“If CeCe meets the conditions for transgender athlete participation in the future, we wholeheartedly back her participation in international events as a member of Team USATF.”

The establishment of the policy sought to provide guidelines for not only transgender women, but also for those living with differences of sexual development like South African runner Caster Semenya. DSD athletes are legally women but have testes, XY chromosomes, and male levels of testosterone.

While not transgender, Semenya’s case bears similar framework. Her naturally elevated levels of testosterone became a track and field hot topic, and has remained so for the last 12 years. She and World Athletics have gone back and forth over her eligibility and the Olympic gold medalist went so far as to take her case to court. In 2011, it was ruled that athletes with elevated testosterone had to take contraceptive pills to lower the hormone in order to compete in middle distance. The drug affected her performance and Semenya felt targeted. Banned from her signature 800-meter event, the South African athlete switched to the 5,000 meter race in a bid to make it to the Tokyo Olympics. Her quest fell short, and the 2012 and 2016 Olympic gold medalist will be on the outside looking in during this year’s Olympics.

A deeper dive into Semenya’s ongoing case would not be compete without acknowledgment of the embarrassment of invasive practices to determine her gender. It’s issues like this that were brought forward by the National Women’s Law Center. In opposition to a bill in Ohio, the group wrote, “The law allows anyone for any reason to question whether a student athlete is a woman or girl. And then the student has to verify her gender by undergoing invasive testing, which could include a gynecological exam, blood work or chromosome testing.” Most of the legislation addresses youth athletics and while some brush off the importance of sports at the middle and high school levels, it is athletes’ performance at these levels that garner scholarships and the opportunity to advance their careers to the professional level.  

The NCAA supports inclusion, but athletes have to progress to that level first and if they are not allowed to compete in high school, how will they be recruited? The governing body of collegiate athletics said their long-standing policy provides a more inclusive path for transgender participation in college sports.” Their approach includes hormone suppression and embraces the evolving science on this issue and is anchored in participation policies of both the International Olympic Committee and the U.S. Olympic and Paralympic Committee.”

No one should be denied the opportunity to compete on the basis of their gender and the fight to appease all parties is a tough one. There have been proposals to require transgender female athletes to suppress their testosterone for a certain amount of time before being able to compete. Others propose separate, but equal accommodations such as races and teams. While the latter seems reasonable, there’s such a small group of trans athletes and that may breed feelings of exclusion. This is evidenced by the fact that lawmakers are pushing anti-transgender policies while failing to identify local examples where the participation of transgender female athletes has caused any issues. However, one must also acknowledge the possibility of severe injury when biological male advantages come into play. Although not on the youth level, instances such as transgender MMA fighter Fallon Fox cannot be ignored. Fighting against a cisgender female, Fox fractured the skull of Tamikka Brents. The injury was so severe that even Brent’s orbital bone was fractured. This issue is deeper than science and very emotionally driven with several levels of complexity. There is a sliding scale when it comes to competitive advantage depending on the sport, which muddies the waters when it comes to establishing any type of umbrella policy. Whether a solution can be reached that is fair to all remains to be seen, and the biggest question mark is whether inclusion for one group should come at the expense of another.  


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