Intersexuality and Transgender Identity as a 'Problem' of Participation in Sports Competitions (Medical and Legal Aspects of Decision-Making Practice)

• Author: Andrea Erdősová/Erik Dosedla/Petra Gašparová/Zuzana Ballová
• Position: Pan-European University in Bratislava/University of Pavol Jozef Šafárik/University of Pavol Jozef Šafárik/University of Pavol Jozef Šafárik
• Pages: 83-98

BRATISLAVA

LAW

REVIEW

PUBLISHED BY

THE FACULTY OF LAW,

COMENIUS UNIVERSITY

IN BRATISLAVA

ISSN (print): 2585-7088

ISSN (electronic): 2644-6359

INTERSEXUALITY AND TRANSGENDER IDENTITY AS

A "PROBLEM" OF PARTICIPATION IN SPORTS COMPETITIONS

(MEDICAL AND LEGAL ASPECTS OF DECISION-MAKING

PRACTICE) / Andrea Erdősová, Erik Dosedla, Petra Gašparová,

Zuzana Ballová

doc. JUDr. Andrea Erdősová, PhD.

Pan-European University in Bratislava

Faculty of Law

Tomášikova 20

821 02 Bratislava, Slovakia

andrea.erdosova@gmail.com

ORCID: 0000-0002-5430-5788

doc. MUDr. Erik Dosedla, PhD., MBA*

erik.dosedla@nke.agel.sk

ORCID: 0000-0001-8319-9008

MUDr. Petra Gašparová*

petra.gasparova01@nke.agel.sk

ORCID: 0000-0002-6354-6911

MUDr. Zuzana Ballová*

zuzana.ballova@nke.agel.sk

ORCID: 0000-0002-0605-948X

* Department of Gynaecology

and Obstetrics, Faculty of Medicine

Pavol Jozef Safarik University

Hospital AGEL Košice-Šaca Inc.

Lúčna 57, 040 15 Košice-Šaca

Slovakia

Abstract:

Amidst a global landscape where transgender

individuals face unprecedented challenges in accessing equitable

sexual health care, our review breaks new ground by exploring the

intricacies of sexual health within the transgender community.

Unveiling the critical gaps in current health care practices, our

research not only amplifies the voices of those often

marginalised in health narratives but also pioneers a

comprehensive, culturally sensitive approach to transgender

sexual health. The literature review tries to find medical and

subsequent legal justifications for PRO and CONS of participation

of transgender and intersex athletes in the category of the

opposite sex. It tries to analyse which differenc es in life can be

relevant in defining competitive advantages, which nowadays

lead to very controversial, often politically motivated conclusions.

The opinions of the professional and sports public do not go

along with some decisions of sports associations and

authorities. It therefore also deals with the recent decision of the

European Court of Human Rights in the case of Caster Semenya,

as well as the participation of athletes across different sports

disciplines and categories. It does not ignore the question of the

adequacy of anti-discrimination measures. Furthermore, it

evaluates the impact of such participation on the integrity and

fairness of competitive sports, highlighting the need for a

balanced approach that respects the rights of all athletes. This

study stands at the forefront of transforming sexual health care

for transgender individuals worldwide.

Submitted:

05 April 2024

Accepted:

18 June 2024

Published:

07 July 2024

Key words: Transgender Person; Intersexuality; Sex

Determination Processes; Hyperandrogenism; Testosterone;

Discrimination; „Very Weighty Reasons"; Arbitration; European

Court of Human Rights

Suggested citation:

Erdősová, A., Dosedla, E., Gašparová, P., Ballová, Z. (2024).

Intersexuality and Transgender Identity as a "Problem" of

Participation in Sports Competitions (Medical and Legal Aspects

of Decision-Making Practice). Bratislava Law Review, 8(1), 83-98.

https://doi.org/10.46282/blr.2024.8.1.855

84

A. ERDŐSOVÁ, E. DOSEDLA, P. GAŠPAROVÁ & Z. BALLOVÁ

BRATISLAVA LAW REVIEW

Vol. 8 No 1 (2024)

1. THE QUESTION OF COMPETITIVE ADVANTAGE AND DIFFERENCE WHEN IT

COMES TO GENDER

The WHO has a decent definition: “Gender refers to the characteristics of women,

men, girls, and boys that are socially constructed”. When society talks about “gender

norms”, it refers to behaviours and roles associated with men, women, girls, and boys.1

While not inaccurate, the WHO’s definition is incomplete because it implies a kind of

binary. There are more genders beyond men, women, girls, and boys. The Canadian

Institutes of Health Research (further as

CIHR

) provides a fuller definition: “Gender refers

to the socially constructed roles, beh aviours, expressions and identities of girls, women,

boys, men, and gender diverse people”.2 In short, gender is a social cons truct that varies

over time and across societies.

How is gender different from sex? The CIHR defines sex as “a set of biological

attributes in humans and animals.” These attributes include chromo somes, gene

expression, hormone levels and function, and reproductive/sexual anatomy. Sex is

typically categorised as “male” or “female,” but even within sex, categories are more

complex than a binary.3

The question of competitive advantage finds its extensive justifications in the

jurisprudence that concerns illegal doping. W hen examin ing the circumstances, it is

important that "(...) it is not a matter of responsibility for the culpable use of a proh ibited

substance, but of a super-objective responsibility "for the body", i.e. for the fact that the

substance was found in the athlete's body after the competition and that he/she

competed in situations, w hen he/she was favoured over others due to his/her he alth

dispositions." (David, 2012, p. 157). There is no doubt that it was this substance that

favoured the athlete. But Ludvík David (2012, p. 157) gives an exa mple from decision-

making practice, when it seems particularly difficult to balance the degree of

responsibility, if it is, for example, a long-term endurance load, during a several-hour

cycling stage, which can increase the level of testosterone in some competitors due to a

non-specific reaction of the body to such an extent that it exceeds the permitted limit.

Nowadays, there is increasing pressure on athletes from the outside, which

motivates them in the pursuit of records and leads to the team production of a "champion

factory". In the light of this ambivalent view, athletes appear in the eyes of the public not

only as cheaters, but also as victims (Lipovietsky, 1999, cited by Dávid, 2012, p. 160).

Cultural awareness and social recognition of many forms of gender identity,

gender expression and gender roles are developing worldwide (Wipfler, 2016, p. 494).

Currently, we are witnessing the tension of arguments on both sides. Some

organisations defend the rights of transgender (the problem mainly focuses on women

transitioning to a man, i.e. "

FtM

" for short) and hyperandrogynous women and their ability

to compete without discrimination in women's sports disciplines compete with the

opposite ones.4 At the opposite pole of the discourse, the arbitrators of the rights of other

participants in sports competitions operate, arguing for equality of conditions and fair

play rules for all. The question is whether this is the result of a modern-day ideological

1 World Health Organization (WHO). Gender and health. Available at: https://www.who.int/health-

topics/gender#tab=tab_1 (accessed on 12.02.2024).

2 Canadian Institutes of Health Research (CIHR). What is gender? What is sex?. Available at: https://cihr-

irsc.gc.ca/e/48642.html (accessed on 12.02.2024).

3 Ibid.

4 UN Expert warns Biden Administration: Rule changes in women & girls’ sports would breach “human rights

obligations”. In: ADF International, published on 28.12.2023. Available at:

https://adfinternational.org/news/un-expert-warns-against-us-rule-changes-in-womens-sports (accessed on

21.01.2024).