Swallows and Amazons, or the Sporting Exception To the Gender Recognition Act
| Published date | 01 March 2008 |
| DOI | 10.1177/0964663907086455 |
| Date | 01 March 2008 |
| Subject Matter | Articles |
THE SPORTING EXCEPTION TO
THE GENDER RECOGNITION
ACT
DAVID MCARDLE
University of Stirling, UK
ABSTRACT
The Gender Recognition Act 2004 purports to restrict transgendered persons’ oppor-
tunities to participate in sports if their involvement is not conducive to either
‘competitive fairness’ or ‘safety’. This article considers the difficulties in founding a
prohibition on either ground, through reference to the medical literature and by
considering relevant developments in other jurisdictions. It works towards a theor-
etical framework for consideration of the broader issues concerning sport and sexed/
gendered bodies by suggesting that transgender sport may be regarded as a struggle
over the legitimate use of the sporting body; and one that both reinforces and chal-
lenges the significance of sports as a gendering practice.
KEY WORDS
gender recognition; human rights; law; sport; transgender
INTRODUCTION
THISARTICLEISconcerned with the rights of transgendered people, and
particularly with what the United Kingdom’s Gender Recognition Act
2004 reveals about sports’, and the law’s, difficulty in accommodating
their involvement in sporting activities. The focus is on s. 19 of the Act, which
facilitates sports bodies, prohibiting transgendered persons’ participation on
grounds of either ‘competitive fairness’ or ‘safety’, but it will be argued that
neither ground can be established in the light of both the existing case law
SOCIAL & LEGAL STUDIES Copyright © 2008 SAGE Publications
Los Angeles, London, New Delhi and Singapore, www.sagepublications.com
0964 6639, Vol. 17(1), 39–57
DOI: 10.1177/0964663907086455
40
SOCIAL & LEGAL STUDIES 17(1)
on transgender rights and the current state of medical knowledge. The possi-
bility that s. 19 is otiose is in part a consequence of its being a badly and
hastily drafted provision, inserted late in the day to appease the sports lobby
and its mouthpieces in the House of Lords. However, its very existence is
also symptomatic of the confused and incoherent approach to transgendered
participation in sports – an approach that is, in its turn, a consequence of the
sporting field’s equally confused and incoherent antipathy towards most
forms of difference.
For the purposes of this article, the word ‘transgendered’ reflects the usage
given to it in the 2004 Act and is thus used to connote all those who take steps
to live ‘permanently in the opposite gender role to the one in which they were
registered at birth’ (http://www.pfc.org.uk/#why) rather than being limited
to those who have undergone gender reassignment surgery. On the basis of
this broad definition, if s. 19 represented a workable prohibition on this
group’s participation in sport, it would already negatively impact upon the
health of more than 5000 transgendered people in the United Kingdom
(http://www.pfc.org.uk/node/541). This should be a cause for concern among
those of us who advocate human rights in, and through, sport because the
medical literature confirms that members of the transgendered community are
particularly susceptible to mental and physical health problems (Feldman and
Bockting, 2003; Cuypere et al., 2005) that sports participation could perhaps
ameliorate. Although one must be wary of advancing sports participation as
a panacea for poor health, the mental and physical health benefits of an active
lifestyle are certainly no less important for transsexuals than they are for the
population as a whole (Grossman et al., 2005). However, transgendered
participation in sports is problematic because the sports field’s (Bourdieu,
1978) sacrosanct perceptions of what is ‘fair’ or ‘appropriate’ cannot be recon-
ciled with the social, medical and surgical realities of transgendered status.
Squaring this circle is especially difficult because of the undue attention
that has been paid, both historically and in contemporary discussions, to the
spectre of transgendered participation in elite sports events, and in particu-
lar on affirmed females’ putative competitive advantage accrued by virtue of
the supposed ‘male levels’ of testosterone that remain ‘in the system’ even
after long periods of hormone treatment. The historical discussions about
transgendered people’s participation in elite sport have framed subsequent
endeavours to restrict all participation by all transgendered people, with the
UK Parliamentary debates and the relevant (though limited) case law from
other jurisdictions illustrating how these specific, and highly problematic,
contentions have laid the groundwork for far more wide-ranging prohibi-
tions. The spectres of steroid-fuelled ‘drug cheats’, of men pretending to be
women or even agreeing to have their penises chopped off in order to secure
a supposed competitive advantage, have been invoked frequently and all too
easily by legislators and by those appearing before the courts (Birrell and
Cole, 1990; Charlish, 2005), and while those misperceptions have their roots
in concerns about elite sports participation, s. 19 reveals their potential to
impact upon the low-level recreational involvement to which most of us
humbly aspire.
MCARDLE: SWALLOWS AND AMAZONS
41
VILE BODIES
SEXING THE ATHLETE
Transgendered participation does not, and probably cannot, ‘fit in’ with the
sports field’s norms. Sports have an aversion to those bodies which are
‘different’, so much so that even disabled participants – the ‘deserving poor’
of the sports field – are scrutinized, labelled and categorized in readiness for
their own, ‘Special’, Olympics (Howe and Jones, 2006) at a time when the
informed consensus has definitively moved away from the medical model of
disability. Those whose bodies fall outside the norms of sex and gender,
whether because of their innate biology or because they eschew the paradigm
of mainstream masculinity/femininity and the heterosexuality imperative,
similarly face unique challenges: struggles over the sporting body have
resulted in litigation by, for example, pregnant participants (Gardner v
National Netball League, 2001) and female boxers (Couch v British Boxing
Board of Control, 1998), while efforts to determine and regulate acceptable
levels of the ‘male hormone’ testosterone among female athletes have simi-
larly excited the attention of the juridical field (Modahl v British Athletic
Federation, 1997, 1999). Gay men and lesbian women remain firmly margin-
alized (Griffin, 1998; Spencer, 2000, 2003), so that the International Olympic
Committee will still not sanction the use of the word ‘Olympics’ at the Gay
Games (Symons and Warren, 2006), even though the ‘Scout Olympics’, the
‘Police Olympics’ and the ‘Canine Olympics’ have all been tolerated for
over 20 years (San Francisco Arts and Athletics v United States Olympic
Committee, 1987).
In the specific context of transgendered participation, this fundamental
difficulty with ‘other’ bodies can be regarded as having its origins in the
development of widespread, state-sanctioned doping regimes in the 1960s
(Simpson and Ljungqvist, 1993) and the consequent emergence of male
athletes from the Soviet bloc who were, allegedly, competing surreptitiously
in women’s events. Evidence for their existence was never more than anec-
dotal (Ritchie, 2003), but the dearth of knowledge about the extent of
anabolic steroid use among female athletes fuelled the rumours for more than
a decade. ‘Femininity testing’ in the form of a manual examination of all
female athletes was introduced after the 1964 Olympics (Hood-Williams,
1995; Wackwitz, 1996), but with the possible exception of two sisters from
the Soviet Union – who were probably genuine intersex cases but who
disappeared from the scene without ever being tested – no masquerading men
were ever uncovered.
In 1967, sex chromatin screening was added to the testers’ arsenal in an
implicit acknowledgment that the governing bodies were no longer concerned
with male impostors but simply with women whose chromosomal compo-
sition was anything other than ‘normal’ and whose bodies could be produc-
ing more testosterone than ‘normal women’ had. The subsequent ‘outing’ of
a handful of high-profile athletes who had unusual chromosomal composi-
tions justified testing in the eyes of others who felt their rivals had an unfair
42
SOCIAL & LEGAL STUDIES 17(1)
advantage and resented their success – ‘there [was] a feeling in the air that it
was unfair, improper even, for people with unusual chromosomal patterns to
compete in women’s events’ (Comment, 1992: 95) – but unusual chromo-
somal patterns do not result in increased levels of testosterone, still less a
capacity on the part of the body to translate this excess into increased muscle
bulk or the ability to recover from injury more quickly than would other-
wise be the case.
Continued protestations about the manual examination resulted in its
removal in the mid-1970s, but the international sports organizations were
determined to maintain a testing regime that would ‘ensure femininity in the
competitors participating in the Olympics (and establish) that athletes are
competing on an equal basis, considering their physical status’ (Hay, 1972:
998), so the sex chromatin test remained. It served its spurious purpose
because it was cheap, quick and comparatively non-invasive, but Reeser’s
(2005: 695) assertion that ‘the pretence of competing under an assumed gender
is one way by which desperate athletes have, in the past, attempted to gain an
unfair competitive advantage’ is simply wrong. As predicted by Moore (1968),
chromatin screening has ‘never detected any...
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