Regulations implemented by World Athletics (WA) require female athletes with differences of sexual development to suppress their blood testosterone levels in order to participate in certain women’s sporting competitions. These regulations have been justified by reference to fairness. In this paper, we reconstruct WA’s understanding of fairness, which requires a “level playing field” where no athlete should have a significant performance advantage based on factors other than talent, dedication, and hard work over an average athlete in their category. We demonstrate (...) that by placing regulations only on testosterone levels, while ignoring physical as well as socioeconomic advantages, WA consistently fails to meet its own definition of fairness. We then discuss several ways in which this definition could be met. Our analysis shows that a categorical system, in which athletes are divided into categories based on properties leading to significant performance advantages, is best suited for meeting WA’s definition of fairness. (shrink)

There is a fundamental tension in many sports: human sex is not binary, but there are only two categories in which people can compete: male and female. Over the past 10 years, the International Association of Athletics Federations regulations have been at the centre of two notable legal disputes. The Court of Arbitration for Sport reached two contradictory rulings: in the first case, the IAAF regulations for the eligibility of athletes to compete in the female category were suspended on grounds (...) of "discrimination against the female category"; in the latter, the regulations were reaffirmed on grounds that although discriminatory, they are necessary to maintain a "level playing field" and to “protect” the female category. Although Semenya’s case has paved the way for questioning existing gender norms in sport, a new stable norm has yet to emerge from her case. The pharmacological solution put forward by IAAF to the tension between fairness and inclusivity of bodies non-conforming to two sexes is not, however, the only possible solution/resolution to the case, as I aim to show in this paper. Here I present some reflections on this topic and suggest how CAS should approach the case if it hopes to resolve it. (shrink)

Caster Semenya is done with track and field. At 29, her hopes for a continued career as a professional middle-distance runner are dashed. After her case against International Association for Athletics Federation 1 was dismissed by the Court for Arbitration of Sport on 1 May 2019, she has switched to football later in the year.1 Semenya’s case may have come to its legal conclusion, however it has generated an aporia regarding the binary classification in athletics, which has yet to be (...) solved.2 It is time the implications of the fair equality of opportunity principle as a normative basis for the construction of categories in sport are taken seriously to move forward the debate on unfair advantages in sport. Loland conditionally justifies restricting the women’s category to athletes with testosterone levels below a certain threshold, on the basis of the FEO principle, and of a distinction between stable and dynamic inequalities between athletes. …. (shrink)

The discourse inside and outside of sport in Australia and abroad on the participation of transgender women in female sport focuses on the principles of fairness, equity and the safety of competitors. These concerns commonly materialise (with little evidence) labelling transgender women as ‘cheats’, dominating female sport, strategically being coached in collision sports to intentionally hurt opponents or fraudulently transitioning with the sole aim of competing in elite women’s sport. Our research examines the process by which the Australian Football League (...) (AFL) grappled with these competing narratives in developing a policy to permit the participation of transgender and gender diverse athletes in community and ‘elite’ competitions. It will be argued that the initial AFL process lacked consideration of the human rights of transgender women and did not provide the necessary resources required to ensure a safe and inclusive process for transgender women to engage with the AFLW competition. This article will also identify lessons which other sport governing organisations should heed in developing and implementing policies for the inclusion of transgender women in sport. (shrink)

The aim of this paper is to analyse sport records and consider why there are two kinds of them: performance records and statistical records. Usain Bolt?s world record of 9.58?s in a 100?m race is a prominent example of a performance record, while an example of a statistical record is Michael Phelps? 18 Olympic gold medals. This categorisation of two types of sport record is a development of Sigmund Loland?s view. Loland focuses on performance records and largely ignores statistical records; (...) I develop Loland?s explanation of performance records and present an original description of statistical records. I also address an argument that Loland employs to challenge performance records?the record dilemma. My analysis of the relationship between performance records and statistical records reveals that a performance record is a special example of a statistical record. I also argue that the function of sport records is to direct sports towards universality, which reflects a common tendency of sports. The existence of two kinds of sport records allows this to be fully realised. (shrink)