The ACT Human Rights Commission has published a guide to the inclusion of transgender and intersex people in sport. Unfortunately, the guide homogenises intersex and transgender populations in a way that both makes intersex inclusion far more complex than it needs to be, and fails to recognise our diversity. The lengthy guide fails to understand the diversity of intersex bodies and also a diversity in our understandings of our bodies.
The guide also takes material from publications by OII Australia and partners without acknowledgement.
People from both OII Australia and AISSGA were able to comment on a draft version of the document in 2015 and, unfortunately, from our perspective the issues raised at that review have not been addressed.
The Darlington Statement says:
35. We call for access to sport at all levels of competition by all intersex persons, including for all intersex women to be permitted to compete as women, without restrictions or discriminatory medical investigations.
47. Intersex is distinct from other issues. We call on allies to actively acknowledge our distinctiveness and the diversity within our community, to support our human rights claims and respect the intersex human rights movement, without tokenism, or instrumentalising, or co-opting intersex issues as a means for other ends. “Nothing about us without us.”
Overall, the complexity of the ACT HRC document, and the homogenisation of intersex and transgender populations, is more likely to raise unnecessary concerns about the inclusion of intersex people than it is to resolve them. The document problematises the participation of intersex men and intersex women in sport that are completely unjustified. In part, our inclusion in this document seems intended to provide a biological justification for the rights of transgender people to compete.
Guidance on including intersex people in sport
To be clear, there are some considerations when it comes to the inclusion of intersex people in sport. Here is some summary guidance, organised in part to reflect the gendered nature of many sporting activities.
1. Intersex people who change legal sex classification may face some of the same challenges that face transgender people. This unfortunately is also the case for intersex people who have non-binary, alternative and multiple sex markers. Some thought is required. The UN Special Rapporteur on health provides relevant guidance:
Policies must reflect international human rights norms, should not exclude transgender people and non-binary people from participation and should not require irrelevant clinical data or unnecessary medical procedures as a precondition to full participation… States, sporting organizations and other actors should adopt anti-discrimination policies that permit all persons to participate in amateur sport on the basis of their self-identified gender.
2. Otherwise, there are no legal or other issues facing any intersex men interested in playing men’s sport, and no justifications for their exclusion. No international sports body has ever introduced exclusions for men born with intersex variations.
3. Some participation by intersex women in sport, specifically women who were legally assigned female at birth, has proven contentious. Historically, different arbitrary rules about how women are defined have excluded different women from competition at different times. During a period from the late 1960s to the turn of the century, women with XY chromosomes were arbitrarily and unnecessarily excluded with devastating personal consequences. More recently, women with naturally high levels of testosterone (“hyperandrogenism”) were excluded, with similar devastating consequences. This can include women assigned legally female at birth who have partial androgen insensitivity syndrome, 5-alpha reductase deficiency, 17-beta hydroxysteroid dehydrogenase III deficiency and some others, and also some women with PCOS.
However, there is no scientific evidence to suggest that such women have a performance advantage warranting exclusion. In 2015, the Court of Arbitration in Sport suspended IAAF policies designed to exclude such women because of this lack of scientific evidence. Unless new evidence is forthcoming, those policies will be declared void later this year. In 2016, some clinical members of the 2015 IOC meeting that reaffirmed separate policies for transgender and hyperandrogenic athletes disowned the policy on hyperandrogenism, stating “with the passage of time and the recurring public spectacle of young women, often from less-developed areas of the world, having their underlying biology indiscriminately scrutinized in the world media, it has become evident that the hyperandrogenism policies are no more salutary than earlier attempts to define sharp sex boundaries.”
Federal anti-discrimination law provides an exemption in sports where “strength, stamina or physique” are considered relevant. However, the 2015 Court of Arbitration in Sport judgement means that any decision to exclude intersex women from any level of sport lacks a justifiable scientific basis.
4. Guidance on including intersex people in sport should state that any women and men can always play or compete if that is their birth-assigned legal sex.
We encourage sports clubs and organisations to implement policies that reflect succinct 2016 guidance by the UN Special Rapporteur on health.
Declaration: A co-chair of OII Australia participated in consultations on sport with the UN Special Rapporteur on health.
ACT Human Rights Commission. Everyone Can Play: Guidelines for Local Clubs on Best Practice Inclusion of Transgender and Intersex Participants. 2017.
Androgen Insensitivity Support Syndrome Support Group Australia, Intersex Trust Aotearoa New Zealand, Organisation Intersex International Australia, Black E, Bond K, Briffa T, et al. Darlington Statement. March 2017.
Court of Arbitration for Sport. Media Release, Athletics, CAS suspends the IAAF Hyperandrogenism Regulations July 2015.
Genel M, Simpson J, de la Chapelle A. The olympic games and athletic sex assignment. JAMA. 2016.
International Olympic Committee. IOC Consensus Meeting on Sex Reassignment and Hyperandrogenism November 2015. 2015.
Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health. Sport and healthy lifestyles and the right to health April 2016.