The 2024 Summer Olympic Games will officially start in Paris on 26 July, drawing media attention to both impressive sporting performances and the current functioning of the international sports system. It is an opportunity to question the position of human rights in sport – which appears to be very limited if we consider the exclusion of trans and intersex athletes.

Indeed, the current regulations will infringe on trans and intersex athletes’ rights to equal treatment. They will also breach their rights to bodily integrity by excluding them from competition altogether based on their gender identity or requiring them to undergo invasive, unnecessary medical treatment before being allowed to participate.

Current regulations

The current regulations, which exclude trans and intersex athletes from competitions, largely focus on the women’s category. Although the regulations for this category vary from one federation to another, they usually include the same criteria: the requirement of a testosterone level under 2.5nmol per litre of blood for all trans and intersex athletes and the added requirement not to have experienced the typical effects of male puberty.

Discriminatory treatment appears in multiple aspects of the regulations.

Lack of performance inequality among men

Firstly, it is impossible to ignore that the limitations on competing do not apply to the male category. Within this category, biological advantages are often treated as performance indicators and are encouraged. This was caused by the emergence of a gender concept specific to the world of sport, which tends to define women solely by their testosterone level.

Total exclusion of non-binary athletes

Secondly, there are no options for athletes outside of the male and female binary categories. While some events do organise mixed competitions, these are always based on gender quotas that require a specific number of female and male athletes, excluding non-binary athletes.

Discrimination within the female category

The third and most severe form of discriminatory treatment is within the female category, between trans and intersex athletes and their counterparts.

The requirement of a lower testosterone level only applies to intersex and trans athletes. Other women whose testosterone levels may be higher due to medical conditions are not required to take any action before they are allowed to compete.

The decision to impose limitations on competing in the female category relies on the concept of fairness within that category. It should be noted that while sports governing bodies are required to respect the principle of non-discrimination, they are not bound by similar obligations concerning fairness based on athletes’ physical abilities.

Unreliable research

If federations were to limit the participation of some athletes, they would need to provide strong justification for it not to amount to a human rights violation. However, it appears that the scientific studies on which the regulations were based do not meet this standard in any way.

These studies seem to show a clear advantage among trans and intersex athletes and the direct link between that advantage and their testosterone level.

However, it is immediately clear that these studies are not reliable in any way. They are based on erroneous data obtained without the consent of the athletes in question and were funded by the sports federations themselves. This shows a lack of impartiality and independence.

Furthermore, the results of this research could not be reinforced by other studies. Set against the impact of these restrictions on the athletes’ physical and mental integrity, this justification does not appear to be at all proportionate.

Discriminatory regulations

Finally, as pointed out by South African middle-distance runner Caster Semenya in her case at the European Court of Human Rights, the regulations disproportionately impact racial minorities. Although there is no purely genetic difference in testosterone levels linked to race or ethnic origin, it is clear that the place and context in which an athlete develops affects their hormone levels. It follows that the values established by the international sports federations are undoubtedly based on the reference values in the Global North countries. This explains why most athletes who are currently being excluded from competitions are black trans and intersex women.

Mandatory, unsafe, medicalisation

The mildest, most common method used by athletes to reduce their testosterone levels is to take the contraceptive pill. To be allowed to continue competing, athletes are required to take the pill continuously to prevent their testosterone levels from rising. However, this use of the pill makes the athletes concerned ‘guinea pigs’, as they are exposed to unassessed risks. After all, this was neither the intended purpose of the pill nor has its safety been tested to this effect.

Trans women are also required not to have experienced typically male puberty in order to be permitted to compete. This effectively blocks trans athletes from competing if they only started hormone therapy after puberty began. As a result, it is highly likely that trans children who were already aware of their identity during childhood and want to have the option to pursue a high-level career in sport later will be forced to consider starting hormone therapy prematurely.

Unjustified, discriminatory exclusion

All in all, the current exclusion of trans and intersex women from participating in international competitions can only be explained by a transphobic and interphobic stance that perpetuates a misogynistic tradition of scrutiny of women’s bodies and abilities. Trans and intersex women are and will always be women who have the innate right to be respected as such in sports and in all aspects of their lives.