The Struggle for Equality: the Goal Is to Maintain Meaningful Competition for All Athletes-male, Female, and Those Transitioning-but How?

• Publication year: 2022
• Citation: Vol. 55

55 Creighton L. Rev. 113. THE STRUGGLE FOR EQUALITY: THE GOAL IS TO MAINTAIN MEANINGFUL COMPETITION FOR ALL ATHLETES-MALE, FEMALE, AND THOSE TRANSITIONING-BUT HOW?

THE STRUGGLE FOR EQUALITY: THE GOAL IS TO MAINTAIN MEANINGFUL COMPETITION FOR ALL ATHLETES-MALE, FEMALE, AND THOSE TRANSITIONING-BUT HOW?

Kendra M. Vosler, '22 ^[*]

I. INTRODUCTION ................................... 114

II. BACKGROUND .................................... 116

A. WORLD ANTI-DOPING CODE: PURPOSE & EFFECT... 116

1. Establishment of Anti-Doping Regulations .... 116

2. Prohibited Substances & Their Effects ........ 117

3. International Olympic Committee ............ 119

B. A BRIEF OVERVIEW OF CURRENT FEDERAL & STATE LEGISLATION REGARDING TRANSGENDER ATHLETES ....................................... 121

1. Federal Legislation, Policies, & Concerns ..... 121

2. State Legislation ............................. 122

3. Title IX & Women's Sports ................... 125

C. BIOLOGICAL DIFFERENCES ........................ 127

1. Bone & Muscle Composition .................. 127

2. Effects of Biological Differences on Athletic

Performance ................................. 129

III. ANALYSIS ......................................... 131

A. MAINTAINING THE LEGITIMACY OF WOMEN'S SPORTS DOES NOT ALLOW FOR THE INCLUSION OF ALL TRANSGENDER WOMEN ON FEMALE SPORTS TEAMS DUE TO INSUFFICIENT "DEHANCEMENT" RESULTING FROM PROLONGED HORMONE THERAPY OR SURGERY ................. 132

1. Timing of the Transition ..................... 134

2. Length & Type of Therapy ................... 135

B. TRANSGENDER MALES SHOULD BE ALLOWED TO COMPETE ON MALE SPORTS TEAMS SUBJECT TO THEIR PERFORMANCE DURING TRYOUTS OR OTHER PRE-SEASON ACTIVITIES, BUT THE DECISION SHOULD ULTIMATELY BE BASED ON THE ATHLETE'S SKILL RATHER THAN HIS GENDER ......................................... 136

1. Equality Concerns & Physical Limitations .... 136

2. "Locker Room" Concerns and Other Factors that Should be Excluded From Roster Consideration................................ 138

IV. CONCLUSION ..................................... 141

"To deny us the opportunity to participate and to compete and to potentially excel is to take away part of ourselves that we cherish."

- Donna Rose ^[1]

"On day 1, Biden unilaterally eviscerates women's sports. . . A new glass ceiling was just placed over girls."

- Abigail Shrier ^[2]

I. INTRODUCTION

Medical developments have made it possible for those with gender dysphoria to undergo hormone therapy and/or sex reassignment surgery ("SRS") to better align their subjective gender with their objective biological sex. ^[3] While less than 0.6% of the U.S. population identifies as transgender, the modern civil rights movement as well as the LGBTQ+ social movement have brought the disparate treatment of transgender athletes to the attention of law makers. ^[4] The issue became even more pertinent on January 20, 2021, when President Joe Biden issued an executive order aimed at preventing and combating discrimination on the basis of gender identity and sexual orientation. ^[5] While it was a valiant effort, the practical results, in a competitive, athletic context, discriminate against female athletes-who constitute roughly 50.8% of the U.S. population-because of the inherent difference in male and female biology even after prolonged hormone treatment. ^[6]

The issue is a sensitive one, and it requires a careful balancing of the need for meaningful competition and the priceless value of human dignity. ^[7] This Note will attempt to find that balance by reviewing anti-doping regulations and how they interact with the use of hormone therapy in the context of transgender athletes. ^[8] Unfortunately, even with the scientific knowledge and technology that exists today, there is no certain male-to-female ("MtF") transition process which would allow transgender females to compete alongside biologically female-born athletes while maintaining the legitimacy of women's sports. ^[9] However, in the meantime, at the conclusion of this Note, there are several proposed solutions which may prove to be amenable to both parties. ^[10]

This Note will first provide a review of the World Anti-Doping Code, including policy considerations aimed at maintaining meaningful competition for all athletes. ^[11] This will include a discussion of the list of prohibited substances promulgated by the World Anti-Doping Agency which affect transgender athletes. ^[12] Second, this Note will review typical factors used in assessing eligibility for transgender athletes under rules promulgated by the International Olympic Committee. ^[13] Third, this Note will provide a brief overview of how the United States' federal government and different states have attempted to address the conflict between women's sports and transgender rights. ^[14] Fourth, this Note will provide a simplistic overview of biological differences between males and females and their effect on athletic performance. ^[15] This Note will then argue that legislation requiring the admission of transgender females into women's sports is generally inappropriate due to the inadequacy of "dehancement" accomplished by hormone therapy. ^[16] Fifth, this Note will analyze the appropriateness of transgender males competing in men's sports. ^[17] This will be followed by a discussion of factors which should be included in their eligibility and those that should not be included. ^[18] Finally, this Note will conclude with proposed solutions and their ultimate legitimacy and viability. ^[19]

II. BACKGROUND

A. WORLD ANTI-DOPING CODE: PURPOSE & EFFECT

1. Establishment of Anti-Doping Regulations

In the summer of 1998, the athletic community's tolerance of performance-enhancing drugs expired. ^[20] It was during that summer that five members of the Festina cycling team; the sprinter, Dennis Mitchell; the 1996 Olympic shot-put champion, Randy Barnes; and the 1996 swimming gold medalist, Michelle Smith de Bruin, were all charged with anti-doping violations and suspended. ^[21] One reporter for the New York Times expressed concern over the legitimacy of global sports given that gold medals were going to the chemically enhanced rather than to those who devoted themselves to the sport. ^[22] In response to this general sentiment, the International Olympic Committee convened the World Conference on Doping. ^[23] This conference yielded the Lausanne Declaration on Doping in Sport which, in turn, created the World Anti-Doping Agency ("WADA"). ^[24] WADA concluded that the world needed specific guidelines to ensure uniformity and "harmonization," but also required general and flexible rules to effectively implement anti-doping principles. ^[25] Accordingly, in 2003, WADA released the World Anti-Doping Code (the "Code"), which governs 193 countries and imposes consequences for any violations. ^[26]

The primary purpose of the Code is to promote fairness and equality in sports free from chemical enhancement. ^[27] To accomplish this, WADA annually releases the Prohibited List (the "List") which identifies all substances and methods which are prohibited due to their potential to enhance performance in competition. ^[28] When deciding what should be on the List, WADA considers three factors: (1) scientific evidence that the substance has the potential to enhance or enhances performance; (2) scientific evidence that the use of the substance creates an actual or potential health risk to the athlete; and (3) evidence suggesting that the use of such substance violates the spirit of the sport. ^[29]

Article 19 of the Code encourages each signatory to pursue research promoting the values of the Code. ^[30] The Code values both sociological studies and scientific investigations which ensure it remains up-to-date and well informed as to evolving social standards, medical standards, and as to new products that affect athletic performance. ^[31] However, the Code warns that any results from the study must not be misused or applied to promote purposes contrary to the Code's primary purpose-promoting health, fairness, and equality. ^[32]

2. Prohibited Substances & Their Effects

The Code delineates three categories of prohibited substances and methods: (1) those that are prohibited at all times; (2) those that are prohibited in-competition; and (3) those that are prohibited in particular sports. ^[33] While the latter two categories contain substances that are relevant in relation to substance abuse and short-term performance enhancement, they are not relevant in the context of transitioning athletes. ^[34] However, the contents of the first category have a prohibitive effect on transgender athletes because it renders those undergoing hormone therapy ineligible. ^[35]

The following substances are prohibited at all times: (1) anabolic androgenic steroids, ^[36] when administered exogenously; ^[37] (2) peptide hormones and their releasing factors; ^[38] and (3) anti-estrogen sub-stances. ^[39] The androgen hormone, when naturally occurring, is commonly known as testosterone. ^[40] In its synthetic form, it is an anabolic steroid. ^[41] These are frequently used to improve performance in sports but long-term use, as is commonly used for female-to-male ("FtM") transition, can cause liver damage, high blood pressure, heart damage, decreased fertility, and sexual...