Not scientific or medically-based

The new IOC framework mainly focuses on a particular human rights perspective, and the scientific, biological or medical aspects are not considered. This is highlighted specifically in point 5 of the framework, which states that there should be ‘no presumption of advantage1’ due to an athletes sex variations or transgender status. While not being named specifically in the framework but clarified in the presentation of the framework by the IOC,1 it is clear that this point refers to the androgenic hormone testosterone and that there should be no presumption of advantage due to high concentrations of testosterone in the male range of 9.2–31.8 nmol/L13 for long periods. Testosterone is well established in the literature to promote the male secondary sex characteristics14 and is the primary driver for the increase in muscle mass,3 enhanced physique and performance for athletes.15 High concentrations of testosterone drive an increase in fat-free mass, which is responsible for much of the sex differences in sports performance between cisgender men and cisgender women.16 The performance-defining qualities of testosterone are also reflected in the fact that the WADA lists testosterone as an S1 anabolic agent and ‘prohibits its use at all times’.17 Therefore, there is little doubt that high testosterone concentrations, either endogenous or exogenous, confer a baseline advantage for athletes in certain sports. Hence, it is clear to uphold the integrity and fairness of sport that these baseline advantages of testosterone must be recognised and mitigated, as has been called for previously.5 18 19

Second, point 7.1 of the new framework mischaracterises the medical treatment of transgender athletes as a ‘medically unnecessary procedure or treatment’.1 Gender-affirming hormone treatment has been shown to have both positive physical and psychological effects, such as improved quality of life20 and mood21 of the transitioning individual, with the administration of exogenous virilising hormones considered a mainstay treatment for many transgender patients22 and importantly, medically necessary for these patients.23 The protocol for the treatment of trans women is to seek testosterone suppression and feminising exogenous oestradiol supplementation to the norms of cisgender women (testosterone 0.5–2.4 nmol/L; oestradiol 15–350 pg/mL24), while trans men seek the virilisation of exogenous testosterone into the norms of cisgender men (testosterone 9.2–31.8 nmol/L24). This protocol for the treatment of trans women is consistent with the scientific consensus that trans women’s testosterone should be suppressed to below 5 nmol/L to be eligible to compete in the female category of sport5 and therefore, conflicts with the statement that this treatment is ‘medically unnecessary’.1 The implementation of such eligibility criteria for trans women and the integration of trans men into the male category due to their now high concentrations of testosterone upholds the integrity of sport and upholds the protected category of women’s sport. This implementation would also combat the concern about self-identification in the female category of sport due to the medically necessary treatment of transgender patients. Integrating cisgender women athletes with differences of sexual development (DSD) into the female category of sport is further complicated by differing levels of hyperandrogenism. Hence, the authors are sympathetic to the predicament that these cisgender women athletes with DSD face. However, as high testosterone concentrations can provide a baseline advantage for competitors in certain sports, high testosterone concentrations must be mitigated in the female category of these sports to maintain fairness and integrity.

Third, the Framework document states in item 7.2 that ‘criteria to determine eligibility for a gender category should not include gynaecological examinations or similar forms of invasive examination, aimed at determining sex, sex variations or gender’. Although the need for such examinations to be carried out by an experienced practitioner must always be carefully considered, not being able to consider information that can be gleaned from a physical examination conflicts with current recommendations of endocrine and gynaecological scientific societies.25 Indeed, a thorough evaluation should be considered if menarche has not occurred by 15 years of age or 3 years post thelarche. Moreover, some IFs set their rules for the eligibility of athletes with a DSD based on specific diagnoses and their level of androgen sensitivity (a clinical assessment so far). Not allowing so-called ‘invasive tests’ would sometimes result in the IF not being able to enforce its rules and the athlete not being able to comply with them.

Implementation

Implementation of this framework will create a dilemma for IFs that have already recognised the unique challenges raised by the inclusion of trans and women athletes with DSD. Recently proposed interventions for gender classification were based on the 2015 IOC Consensus and the respective IFs own comprehensive analyses with many stakeholders, including ethical, social, cultural and legal experts. For example, in 2020, World Rowing implemented a bylaw to rule 13 for men’s and women’s events as follows:

Eligibility by Gender 1) A rower is eligible to compete in a men’s event or as a man in a mixed event if the gender of the rower is Male in the rower’s passport or national identity card. 2) A rower is eligible to compete in a women’s event, or as a woman in a mixed event, if: a) The gender of the rower is Female in the rower’s passport or national identity card; and b) where applicable, the rower meets the requirements of paragraph 3 below 3) Where, either: a) the rower’s gender has changed; or b) the rower has otherwise been required by the Executive Committee to establish eligibility to compete as a woman; the rower first satisfies the FISA Gender Advisory Panel that the rowers’ serum testosterone concentration has been less than 5 nmol/L continuously for a period of at least the previous 12 months and secondly meets any other requirements reasonably set by the Executive Committee.26

Similar solutions to those implemented by World Athletics6 7 have been adopted by other IFs such as Union Cycliste Internationale27 and World Rowing26 and now in conflict with the IOC framework (table 1). Such conflicting guidelines, rules and recommendations will only confuse the IFs and athletes and provide legal ambiguity for lawyers to exploit when pursuing a gender-related case at the Court of Arbitration for Sport.

In another departure from the 2015 IOC consensus, the 2021 IOC framework places the responsibility for gender classification entirely on the IFs, even though most IFs will not have the capacity, resources or necessary expertise to adopt the framework. For instance, the 2021 framework requires ‘Any restrictions arising from eligibility criteria should be based on robust and peer-reviewed research that demonstrates a consistent, unfair, disproportionate competitive advantage in performance or unpreventable risk to the physical safety of other athletes’.1 The burden of proof is now on the IFs to provide ‘evidence-based’ eligibility criteria within the very narrow constraints imposed by the framework that requires ‘athletes should be allowed to compete in the category that best aligns with their self-determined gender identity’ and ‘athletes should never be pressured by an International Federation, sports organisation, or any other part (either by way of the eligibility criteria or otherwise) to undergo medically unnecessary procedures or treatment to meet eligibility criteria’.1

Consequences

The potential consequences of these imposed constraints could be one of two unwanted extremes (1) exclusion of transgender or DSD athletes on the grounds of performance advantage or (2) self-identification that all but equates to no eligibility rules. By adopting the recent IOC framework without the possibility of necessary interventions for gender classification (the authors preferred use of the term rather than the unhelpful and emotionally charged concept of ‘unnecessary medical intervention’), exclusion of all transgender or DSD athletes on the grounds of performance is likely in sports where safety and fairness are prioritised (eg, Athletics, Rugby, Boxing, Judo); at least during the time it will take for confirmatory research to be conducted. A recent viewpoint provided a potential roadmap for integrating trans women into the elite female category of sport.19 Some sports may be impacted by higher testosterone concentrations, while others may not. Safety is not an issue for sports that do not include contact with an opponent but have a physical challenge (eg, archery) and could be considered a testosterone impacted sport. Therefore, eligibility regulations would then be drawn up by the sports IF based on fair competition. Conversely, some sports do not include contact with the opponent or a physical challenge (ie, shooting) which could be considered a non-testosterone impacted sport. Therefore, the IF would then prioritise inclusion by maintaining baseline eligibility regulations necessary to uphold sporting integrity and prevent the premise of self-ID in the female category. However, we believe that these decision-making principles could be used for all IFs when considering the integration of trans women into the elite female competition.

The development of the 2021 IOC framework would in many countries be unlawful and against the Olympic charter that states:

“The enjoyment of the rights and freedoms set forth in this Olympic Charter shall be secured without discrimination of any kind, such as race, colour, sex, sexual orientation, language, religion, political or other opinion, national or social origin, property, birth or other status”.28

In the other extreme case of an equally undesirable consequence of having no gender eligibility rules, that is, self-identification that amounts to a free choice to compete in any gender classification, sport would lose its integrity and near-universal support. As we have seen during the COVID-19 crisis, sport is much poorer without supporters. Without rules that are perceived as fair, sport will not engage the younger generation and likely negatively impact future participation rates in the female category. As stated in the 2021 framework, athletes should never be pressured by an IF, sports organisation, or any other party to undergo any medical procedures or treatment to meet eligibility criteria. However, if an athlete is fully informed and consents, then it is their free choice to undergo ‘necessary interventions for gender classification’ to compete in the gender classification of their choice and return to the main theme of the new IOC framework, free choice is a fundamental human right.