Module 3

MODULE 3

GENDER DISCRIMINATION IN SPORTS

GENDER DISCRIMINATION IN SPORTS

Gender discrimination in society can be best described in the words of Ann Oakley, who
states:

The topic is divided into various sub-sections: from defining concepts, to charting the
historical progress made in sport and gender policy development, to providing a list of points
to bear in mind for the practical application of gender-equity-through-sport programmes.1

School girls everywhere are made to believe that wherever they go, they can be just as smart,
athletic and successful as boys. However, the story is not the same in reality. From the
moment they are born, girls are forced to realize that even instances wherein only talent and
passion are the quintessential distinguishers, they are still to be inferior to their male
counterparts. Unsurprisingly, sports, which house the careers of the most passionate and the
aspiring, is also a major concern when it comes to the issue of gender discrimination. Male
dominance in sports has become a nightmare for female athletes, who in the hope of pursuing
their careers in the field of sports, have been deprived of self-esteem among a plethora of
gender discrimination instances.

Women’s participation in sports has a long history. It is a history marked by discrimination,
but also one that is filled with major accomplishments by female athletes and important
advances for gender equality. Among many, some of the most notable achievements of
women in sports are those of Helene Madison of the United States of America, the first
woman to win the 10-yard freestyle in one minute at the 1932 Olympics, Maria-Teresa de
Filippis of Italy, the first woman to compete in a European Grand Prix auto race in 1958, and
Tegla Loroupe of Kenya, who in 1994 became the first African woman to win a major
marathon. These achievements were made in the face of numerous barriers based on gender
discrimination.

Several studies done on media coverage of women sports go on to prove that women sports
are generally ignored or are given very less importance.2 In addition, sexual harassment has


1 ‘Sports and gender’ https://www.sportanddev.org/en/learn-more/sport-and-gender accessed on 22nd March
2019.

also been a major concern, especially in developing countries like India. The recent
accusation of coach M K KAUSHIK by the 31 members of the Indian women hockey squad
bring out in the open, a badly kept secret – that Indian sportswomen are constantly exploited.3

Also, women are often perceived as being too weak for sport, particularly endurance sports
like marathons and weightlifting. Most people still hold the belief that sports are harmful to
women’s health, particularly to their reproductive health. However, the data available
suggests that women derive many health benefits from participating in sports.4 Separate
studies from two economists provide evidence to the fact that sports can result in lifelong
improvements to educational, work and health prospects. Participation in sports can prevent
many non-communicable diseases which account for over 60 percent of global deaths, 66
percent of which occur in developing countries.5 For girls, it can have a positive impact on
childhood health as well as reduce the risk of chronic diseases in later life.

HISTORY OF WOMEN PARTICIPATION IN SPORTS

From antiquity, there have been numerous inequalities and biases among the genders. In
many prominent ancient civilizations, women’s social role was limited to house affairs and
childcare. This has had an impact in all aspects and fields of life, including sports. In 1900,
women weren’t allowed to compete in the most important sports events (i.e. Olympic
Games)6; The first Olympic Games to feature female athletes was the 1900 Games in Paris7
until the past few decades, sexist attitudes that prevented women from participating in some
sports were still present. That situation has thankfully changed over the course of time and
nowadays, female athletes can participate in every athletic competition.

Before Title IX and the modern Olympics women participated in sports. Women being
athletes is not a recent phenomenon; there is a history dating back as far as ancient


2 Marcie Bianco, ‘There is less women’s sports coverage on TV news today than there was in 1989’ (16 June

2015) https://qz.com/428680/there-is-less-womens-sports-coverage-on-tv-today-than-there-was-in-1989/
accessed on 19th March 2019.
3 Siddharth Saxena, ‘Discrimination for Indian Sportswomen at all levels’ (The Times of India)

https://timesofindia.indiatimes.com/sports/hockey/top-stories/Discrimination-for-Indian-sportswomen-at-all-

levels/articleshow/6239724.cms accessed on 20th May 2019.
4 ‘Benefits – Why Sports Participation for Girls and Women’

https://www.womenssportsfoundation.org/advocate/foundation-positions/mental-physical-health/benefits-
sports-participation-girls-women/ accessed on 20th May 2019.
5 Sandeep Dasika, ‘Gender Discrimination in Sports’ https://www.youthkiawaaz.com/2011/07/gender-
discrimination-in-sports/ accessed on 21st March 2019.
6 Vasileios Stavropoulos, ‘The evolution of women participation in Sports Events’ (Statathlon, 9 February 2018)
https://statathlon.com/the-evolution-of-women-participation-sports-events/ accessed on 19th March 2019.
7 "Women at the Olympics". Pontifical Council for the Laity.

civilization. There were times in which women were prohibited from competition and in
response formed games of their own.8 The ancient Heraean Games were a series of athletic
events in which only women athletes participated. This event was held to honour the Greek
mythological goddess Hera.9 Normally, the historiography of sport focused on men’s
participation and involvement in sports. Historians began to examine women’s involvement
and the sociological and sex discrimination issues in the 20th century. Due to the feminist
movement women’s history and women’s studies were becoming part of university
curriculum. While academia focused on women in politics, science, and the arts women in
sports remained an ignored area. Sport historians began taking an interest when women’s
numbers increased in sports. The 20th and the 21st century saw the highest participation of
women in sports globally. When the 2016 Rio Olympics started women were competing from
every continent. This would be to observers unfamiliar with women’s sport history as rapid
advancement. This was a gradual process of struggle, which led to the rise of the female
professional athlete.

Women’s involvement and participation in sport dates back to the ancient world. There
existed a tradition of women athletes in Greek, Egyptian, Etruscan, and Minoan civilization.10
During this time period, sports were not the modern professional business as the public
knows it today. The origin of sports could have come from military training. Prior to the rise
of television, radio, and internet humanity needed a form of entertainment. Archaeology has
contributed to uncovering a past of female athletes. Art and artifacts show the sports and
physical activities women participated during the ancient period. The women of ancient
Egypt were involved in swimming and also ballgames. These ballgames resembled soccer.
Carvings on tombs, art, and paintings provide insight to the sporting activities of the ancient
Egyptian woman athlete. The tomb of Cheti at Beni Hassan provides the suggestion that
women participated in ballgames.11

There has yet to be found evidence of organized teams or official competitions. While
Egyptian women did enjoy more freedom relative to there Greek counterparts, there is not
enough evidence to say they were competing in sports in large numbers. If women did not


8 Jackie Mansky & Maya Wei-Haas, ‘The Rise of the Modern Sportswoman’ (18 August 2016)
https://www.smithsonianmag.com/science-nature/rise-modern-sportswoman-180960174/ accessed on 19th
March 2019.
9 "Ancient Heraean Games - Health and Fitness History"
10 A General introduction to the history of women in Sports,
<https://worldhistoryarchive.wordpress.com/2017/09/25/a-general-introduction-to-the-history-of-women-in
sports/> accessed on 19th March 2019.
11 Ibid.

compete they we]re at least physically active. Relief carvings depicted on the temple of
Queen Hatshepsut demonstrate that women were involved in acrobatic dance. This would be
more so part of stunts and spectacles, rather than athletic competition but still required
physical skill. Africa has a wrestling tradition that extends across the continent.12 The Diola,
Yala, and the Njabi ethnic groups had women wrestlers. Girls in these societies would
wrestle each other as a ritual into adulthood. The Diola would use wrestling as an arranged
marriage method in which the male champion would marry the female champion. It would be
assumed that women would have participated in wrestling in ancient Egypt considering it was
an African civilization. There are limited artifacts to support this claim, so it merely is left to
speculation.

The collapse of the ancient empires of the world also meant a transformation in women’s
sports. The Middle Ages and the Italian Renaissance saw women still as participants in sport.
However, sports in Europe were under pressure from the rise of Christianity. There were
some who were not so dogmatic when it came to a popular pastime. The medieval
tournament mainly had women as spectators or presenters of awards to competitors. This was
mainly an activity of the nobility and knight class. Women played folk football along with
peasant men. This was an early version of soccer that peasants played in Europe. This was a
perfect sport that fit well into the agrarian peasant societies of England and France. It it not
require large sums of money or an arena.Women also took part in foot races. Women of
nobility were not as physically active, but did engage in some athletic activities. Hunting and
Hawking were activities of the upper class, which women were involved in. Women of the
nobility were not strangers to horseback riding. Noble women also were known to breed
falcons specifically for hunts. As the centuries progressed women in other parts of the world
also became participants in sports. China just like England and France had a tradition of ball
kicking games. Cuju a game similar to soccer dated back to 2,500 years. Women began
involvement in the sport around the Yuan dynasty (1271-1368) to Ming dynasty (1368-
1644). They were even able to be professional players. Sports were in the past considered
inappropriate for women, but gradually this began to change with some activities gaining
approval. Golf, croquet, and archery were accepted as appropriate sports for women because
it did not involve physical contact or large amounts of physical exertion. Between the 16th
century to 19th century these sports were most popular with upper class women of Europe


12 ibid.

and North America. Mary Queen of the Scots was one of the first women to play golf
seriously. She would play at St. Andrew’s golf course. When she was playing in the 1500s,
no women’s golf clubs existed. It was not until 1867 that one was established at St.
Andrew’s. Croquet was significant because it was the first outdoor sport that became popular
among women. During the late 19th century it was popular to play at picnics and garden
parties. This period marks a transition from traditional sports to modern sports. Modern
sports are specialized, records based, and have a high level of organization.

The late 19th century and early 20th century was a time of radical change for women in sport.
This was a period in which professional sport became what most spectators recognize
today. Women were competing in tennis, bowling, and rowing. Pedestrianism a popular
sport of the 1870s attracted many women. This had competitors walk long distances in both
rural and urban settings. The biggest change was the revival of the Olympics. This presented
women a chance to compete internationally and in front of a larger audience. The revival
occurred in 1896 under the guidance of Baron de Coubertin. He was not an advocate of
women athletes. His convictions were clear when he stated ” let women practice all the sports
if they wish, but let them not show it off.” Pierre, Baron de Coubertin, the founder of the
modern Olympics, believed "an Olympiad with females would be impractical, uninteresting,
unaesthetic and improper."13 This attitude was not a discourage women who really wanted to
compete. Alice Milliat an advocate for women’s sports launched the Federation Sportive
Feminine Internationale to give women a platform for international competition.14 The
organization was responsible for the creation of the first Women’s Olympics Games in 1922.
Held in Paris women competed in shot put and 1000 meter races. Gradually, the excuses that
women were too weak for sports or that it was negative for their health were being
challenged. There were no justifiable reasons for women to be excluded from the games. The
IOC and the IAAF were also concerned about Milliat’s independence, which could be a
threat to their organizations. It was not until 1926 an agreement was reached in which in
which FSFSI would follow the International Association of Athletic Federation guidelines.


13 ‘An Olympiad with females would be impractical, uninteresting, unaesthetic and improper- Baron Pierre de
Coubertin’ (7 August 2007) https://www.irishtimes.com/news/an-olympiad-with-females-would-be-impractical-
uninteresting-unaesthetic-and-improper-baron-pierre-de-coubertin-1.1222948 accessed on 16th March 2019.
14 "Columbia College – First international track meet for women". Archived from the original on 25 February
2008. Retrieved 5 March 2008.

Despite such discrimination and challenges women were able to perform. Some women
became notable sports stars. Hitomi kinue was a track and field athlete that became Japan’s
first female gold medalist.15 She became a world record holder in the 1920s and 1930s. This
was a significant achievement not only for Japan, but other non-whites faced with
colonization or racial oppression. The international press rarely covered women’s sports and
non-white athletes were practically invisibleKinue’s athletic success was praised by the
Japanese public, but ignored in the western press. When the 2012 Olympics were conducted
women could compete in the majority of events available. There has been advancement
compared to the Victorian age. There still remain particular challenges. Unequal pay, lack of
television coverage, and the use of sex verification tests continue to be discriminatory
barriers. A culture of misogyny and body image conformity also is a constant adversary to
women athletes. This seems peculiar considering women are participating in all types of
sports both nationally and internationally. Sexist prejudice continues to be present whether it
is overt or blatant in its presentation.

WOMEN IN SPORTS AND THE LAW16

Covenants and Guidelines

Sport and physical activities were first recognized as a “human right” in the International
Charter of Physical Education and Sport, adopted 1978 by the United Nations Educational,
Scientific, and Cultural Organization (UNESCO). The Preamble of the Charter states that:

One of the essential conditions of the effective exercise of human rights is that everyone
should be free to develop his or her physical, intellectual and moral powers, and that access to
physical education and sport should consequently be assured and guaranteed for all human
beings

UNESCO has, on recognizing the central role of IOC, called for national enforcement of
Olympic Charter, ‘particularly the principles of non-discrimination’. Article 1 of the
UNESCO International Charter of Physical Education and Sports17 states that, ‘the practice of
physical education and sport is a fundamental right for all’. The International Olympic
Committee has a critical role In providing impetus toward equality of women in all sports and


15 ‘The Olympians’ <https://theolympians.co/tag/hitomi-kinue/> accessed on 22nd March 2019.
16 Justice Mukul Mudgal, “Law and Sports in India: Development, Issues and Challenges” 2nd edition,
LexisNexis.
17 The International Charter of Physical Education and Sports was adopted by the General Conference at its
Twentieth session, 21 November, 1978, Paris, France.

not only the Olympics. Its non-discrimination principles are part of the international
conventions for equality of opportunity for women in sports as reflected in the current
Charter, which was adopted in 2004. It states that one of the role of the committee is to:

Strongly encourage, by appropriate means, the promotion of women in sport at all the levels
and in all structures, particularly in the executive body of national and International sports
organization with a view to the strict application of the principle of equality of men and
women.

The IOC Charter also mentions:

The practice of sport is a human right. Every individual must have the possibility of
practicing sport, without discrimination of any kind and in the Olympic spirit, which requires
mutual understanding with a spirit of friendship, solidarity and fair play.

The Beijing Platform for Action was adopted at the Fourth World Conference on Women in
1995. It has been used to draw the attention of various countries to the problems women face;
it contains the mechanisms that could be used to highlight the specific issues of the sport
which the Platform has recognized important, and has led to changes in the laws of some
countries. Under the list of actions to be taken, clause 107(f) calls on governments to ‘create
and support programs in the educational system, in the workplace and in the community to
make opportunity to participate in sport, physical activity and recreation available to girls and
women of all ages on the same basis as they are made available to men and boys’.

In March 2010, the United Nations Commission on the Status of Women conducted the 15
year review of the Beijing Platform Action.18 Further the International Covenant on Civil and
Political Rights provides that women and men enjoy all the civil and political rights in the
convention on the basis of equality. On the basis of equality of opportunities, which is a
fundamental right, civil and political rights too incorporate athletic participation, as well as
leadership positions in various sports governing bodies. This covenant has a broad
application, contains an enforcement mechanism, and has been used to secure greater gender
equality in areas that are analogous to sport.

§ Article 26 provides that all people are equal before the law, are entitled to equal
protection of the law without discrimination and the law shall guarantee equal and
effective protection against discrimination.


18 http://www.un.org/womenwatch/daw/beijing15/index.html.

§ The Covenant has an enforcement mechanism, namely that 1st Optional Protocol,
under which individuals can submit written communications to UN Human Rights
Committee.

§ The Human Rights Committee has decided that Article 26 prohibits discrimination in
law or in fact in any field regulated by public authorities and that its scope is not
limited to civil and political rights.

Rules under customary International Law can be universally binding and the domestic law
comes to incorporate them once there is a fairly uniform and consistent use of the
international opportunity principles applying to women and sports have emerged as a
principle of international customary law.19 The Supreme Court of India, in the case of
Vishaka v State of Rajasthan20 cited the Beijing Platform for Action, in addition to CEDAW,
in strengthening women’s protection against sexual harassment while applying international
norms to domestic law in the absence of any specific legislation.

THE UNITED KINGDOM

Whilst the UK widely acknowledges that more should be done to promote women’s sports,
sexism is still rife in the competitive sport industry, particularly among the older generation.
What is arguably even more concerning is that some of the most damning responses about
women in sport are from female respondents. On average, male footballers receive £21.5
million more in prize money than female footballers – £22 million and £561,230 respectively.
To put this into perspective, the prize money received by an average male footballer is nearly
40 times higher than his female counterpart!21

While other sports don’t come close in terms of inequality, the disparity in prize money is
still a cause for concern. The prize gap between male and female golfers is £528,158, while
male cyclists receive nearly six times as much in prize money as female cyclists.22

However, a number of major sports lead the way in promoting gender equality. The average
prize money is the same for both genders in tennis, volleyball, athletics and swimming.


19 Ken Foster, ‘Is there a Global Sports Law’, Entertainment Law Vol 2.
20 AIR 1997 SC 3011.
21 ‘The UK’s attitudes towards Women in Sport’ https://www.insure4sport.co.uk/blog/the-uks-attitudes-towards-
women-in-sport/ accessed on 20th March 2019.
22 Ibid.

Of our respondents, more than three quarters of women and 68% of men think there’s an
inequality. Furthermore, nearly a third of women prefer watching men play sport, indicating
that it’s not just male spectators holding female sportspeople back.23

Worryingly too, only 7% of respondents prefer watching women play sport. This reiterates
that a lot of work still needs to be done in bridging the gender gap within sport.24

In the United Kingdom, the Sex Discrimination Act, 1975 (SDA),prohibits discrimination on
the basis of any ground; but has recognized ‘sports’ as an exception. The Act offers equal
opportunities to women, particularly in employment. In relation to sports, section 44 of the
SDA restricts females from competing with males where the physical strength, stamina and
physique of the average woman would put her at disadvantage as compared to average
strength of a man.25

In the decision of Lond on Council v Farrar26 it was held, in support of the judgement that
section 44 of the SDA only dealt with situations where men and women might be playing in
the same competition, stressing that it did not apply to competitions where women were
playing against each other. This legally validates the separation of women in sports. Women
competing against each other are not subject to section 44 of the Act which reads:

Section 44:

Nothing in Parts Two to Four shall, in relation to any sport, game or any other activity of a
competitive nature where the physical strength, stamina or physique of the average woman
puts her at a disadvantage to the average man, render unlawful any act related to the
participation of a person as a competitor in the events involving that activity which are
confined to competitors of one sex. 27

As you might imagine, the subject of whether sportswomen should get the same money,
coverage and general recognition as sportsmen divided opinion.

Regarding salaries, one quarter of respondents think male footballers deserve greater pay than
their female counterparts.


23 ibid.
24 ibid.
25 Supra note 13.
26 [1980] ICR 266 EAT.
27 Supra note 13.

The organisers of Wimbledon are equally open-minded on the prize money male and female
contestants receive. Since 2007, male and female Wimbledon champions have received equal
prize money – and more recently, other sports have followed suit. A study conducted by
the BBC into 68 different sports shows that the pay gap has narrowed vastly in recent years,
with rewards in women's sports on the rise. The research shows that 83 per cent of sports now
give men and women equal prize money. The last time this study was carried out, back in
2014, just 70 per cent of sports boasted equality in terms of prize money.28

However, the glaring omission from this 83 per cent is – you guessed it – football. The prize
money that Real Madrid’s men’s team received for winning the 2017 Champions League was
£13.5m, whereas Lyon, the winners of the women’s Champions League, received just
£219,920.29 This seismic gap still exists despite the English women’s football team
consistently outperforming the men’s team at major championships. That said, the responses
we received on prize money were very encouraging, with nearly three quarters of respondents
agreeing that the Wimbledon winning prize fund should be the same for men and for women.

However, there is clearly a feeling across the country that women are not given the same
opportunities as men to become sportspeople from an early age. Less than half of our
respondents think girls receive the same amount of encouragement as boys to participate in
sport at school. What is particularly notable is that 36% of under 25s (people who have
recently left school themselves) think girls get less encouragement to play sport – implying
that gender inequality within physical education is an ongoing issue.30

When it comes to airtime, an incredible 40% of those surveyed don’t think that women’s and
men’s sports should get equal TV coverage. Many people don’t think female and male
pundits should get the same amount of airtime, either – over a third of respondents do not
agree the opinions of female sports commentators and pundits are as valid as those of their
male counterparts.31

The assessment of women’s capabilities as sportspeople by those aged 55 or over is also a big
talking point. Only 19% of respondents in this age bracket think women have the potential to


28 https://www.telegraph.co.uk/sport/2017/06/19
29 Natasha Singh, ‘FIFA World Cup: Gender pay gap in prize money for champions is still a shocking reality’
(The Indian Express, 18 Jul 2018) https://indianexpress.com/article/fifa/fifa-world-cup-2018-gender-pay-gap-in-
prize-money-for-champions-is-still-a-shocking-reality-5265131/ accessed on 20th May 2019.
30Supra note 19.
31 Ibid.

be better than men at most sports, compared to 44% of respondents aged 16 to 24. Again, this
illustrates a greater open mindedness among the UK’s younger demographic. Even though
the demand for participation of women in all sports gains momentum, it is pertinent to
mention that today, most of the rules and regulation women’s sports are framed in keeping in
mind the physical limitations of a female, which women don’t object to. For example, in
tennis Grand Slam tournaments, men’s tennis match comprises of five sets while the
women’s tennis match comprises of three sets; and in Golf, women’s tee is at a lesser
distance from the hole as compared to men.32

THE UNITED STATES OF AMERICA33

Women and girls have long been excluded from many sports. In the 1970s Congress passed
Title IX of the 1972 Education Amendments34 to ban sex discrimination in publicly funded
educational programs. After a round of litigation, followed by legislative amendments, a
presidential VETO and a congressional override of the veto, Title IX was modified to give
women and girls equal access to sports programs in schools that receive any measure of
federal funding.35

Under Title IX schools must provide athletic opportunities to females that are proportionate
to those provided to males. Courts do not require that complete equality occur overnight.
Most courts engage in a three-pronged analysis to determine whether a school is fulfilling its
obligations. First, the court examines whether athletic participation opportunities are provided
to each sex in numbers substantially proportionate to their enrollment. If a school does not
provide substantially proportionate participation opportunities, the court then determines
whether the school can demonstrate a history of expanding the athletic programs for the
underrepresented sex. If the school cannot so demonstrate, the court then asks whether the
interests and abilities of the underrepresented sex have been accommodated by the school. If
the court finds that the school has not accommodated student-athletes of the underrepresented
sex, it may rule that the school is in violation of Title IX and order the school to take
affirmative steps toward more equal treatment between the sexes.


32 ibid.
33 "http://law.jrank.org/pages/10437/Sports-Law-Sex-Discrimination.html">Sports Law - Sex Discrimination
34 20 U.S.C.A. §§ 1681–1688 [1994].
35 Ibid.

Title IX was passed in 1972. Since that time, the number of female athletes in intercollegiate
sports has increased from 30,000 to about 150,000 in 2003.36 However, the law has not been
universally applauded. Several schools have cut minor men's programs, such as wrestling,
swimming, and track, in order to comport with the ratios required under Title IX. Although
advocates of Title IX dispute that the law is the sole reason for these programs being cut,
coaches and other supporters of the minor men's programs have protested that Title IX is
unfair to the male athletes involved in these sports.

In 2003, the Commission on Opportunity in Athletics, which was assembled by Secretary of
Education Rod Paige, submitted a report to Paige suggesting that Title IX needed reform. The
report suggested that the reform was necessary to save some men's sports in order to preserve
men's opportunities to participate in athletics.37 The report was met with vocal opposition.
Two women on the commission filed a minority report with Paige, and the president of the
NCAA voiced his disapproval of the suggestions in the commission's report.38

In addition to claims based on Title IX, sex based classifications by publicly funded entities
are also subject to equal protection claims. Courts review such claims under an intermediate
standard of review. Specifically, a sex-based classification must serve an important
government interest and must be substantially related to the achievement of that interest.
High school girls in Arkansas used the Equal Protection Clause of the 14th Amendment to
abolish a school rule that limited the girls' basketball games to half-court play.39 In Dodson v.
Arkansas Activities Association,40 a federal district court in Arkansas ruled that the half-court
rule deprived the girls of their equal protection rights because it was based solely on tradition
and not on any supportable sex-based reason.

INDIA

The women have been discriminated in the country from time unknown. They have been
treated in a very unfair manner. It is sad especially since there are in numerous many
goddesses worshipped in this country. The country has been striving ever since the
independence to protect the women from discrimination. The Marriam- Webster Dictionary


36 ‘Sports law- Sex Discrimination’ https://law.jrank.org/pages/10437/Sports-Law-Sex-Discrimination.html
accessed on 19th March 2019.
37 Ibid.
38 Ibid.
39 Ibid.
40 468 F. Supp. 394 (1979).

defined discrimination as “the practice of unfairly treating a person or group of people
differently from other people or groups of people.” Discrimination strikes at the very heart of
being human. It is treating someone differently simply because of who they are or what they
believe. We all have the right to be treated equally, regardless of our race, ethnicity,
nationality, class, caste, religion, belief, sex, language, sexual orientation, gender identity,
age, health or other status. Yet all too often we hear heart-breaking stories of people who
suffer cruelty simply for belonging to a “different” group from those in power.

Constitutional provisions

The Constitution of India plays a pioneer role in protecting the women from discrimination
and ensuring gender justice in the present times. It can be said that the Constitution being
supreme law of the land significantly addresses the questions related to woman and also
responds to the challenges. The whole legal system is to be framed according to the
provisions of the Constitution of India. But law alone cannot change the society in a night,
but it will certainly bring positive changes and also ensure that the discriminated cannot be
dealt in any manner whatsoever.

Article 14 of the Act reads as follows:

Equality before law:

The State shall not deny to any person equality before the law or the equal protection of the
laws within the territory of India Prohibition of discrimination on grounds of religion, race,
caste, sex or place of birth. Article 14, therefore, not only provides the British concept of
equality before law but also gives equal protection of law which is an American concept. The
provisions have wide connotations and very protect the women form discrimination from
their counterparts.

Article 15 reads as follows:

1. Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth1. The
State shall not discriminate against any citizen on grounds only of religion, race, caste, sex,
place of birth or any of them.

2. No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them,
be subject to any disability, liability, restriction or condition with regard to -access to shops,
public restaurants, hotels and palaces of public entertainment; or - the use of wells, tanks,

bathing ghats, roads and places of public resort maintained wholly or partly out of State funds
or dedicated to the use of the general public

3. Nothing in this article shall prevent the State from making any special provision for
women and children

4. Nothing in this article or in clause ( 2 ) of Article 29 shall prevent the State from making
any special provision for the advancement of any socially and educationally backward classes
of citizens or for the Scheduled Castes and the Scheduled Tribes

Thus Article 15(1) specifically prohibits any kind of discrimination against women on the
basis of sex, caste etc. and article 15(3) makes special provision for the women favouring
laws in order to protect the women and uplift them from such discrimination

Article 16 reads as under:

Equality of opportunity in matters of public employment

1. There shall be equality of opportunity for all citizens in matters relating to employment or
appointment to any office under the State

2. No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth,
residence or any of them, be ineligible for, or discriminated against in respect or, any
employment or office under the State

3. Nothing in this article shall prevent Parliament from making any law prescribing, in regard
to a class or classes of employment or appointment to an office under the Government of, or
any local or other authority within, a State or Union territory, any requirement as to residence
within that State or Union territory prior to such employment or appointment Nothing in this
article shall prevent the State from making any provision for the reservation of appointments
or posts in favor of any backward class of citizens which, in the opinion of the State, is not
adequately represented in the services under the State Nothing in this article shall affect the
operation of any law which provides that the incumbent of an office in connection with the
affairs of any religious or denominational institution or any member of the governing body
thereof shall be a person professing a particular religion or belonging to a particular
denomination.

Article 16 of the Constitution provides for equality of opportunity to all, in matters relating to
public employment or appointment to any office and specifically forbids discrimination inter-

alia on the ground of sex. These articles are all justiciable and form the basis of our legal-
constitutional edifice.

Not only the State is required to protect the women from discrimination but it is the
fundamental duty of every individual to ensure that the dignity of women is protected. Article
51 A reads as follows: It shall be the duty of every citizen of India-

(e) to promote harmony and the spirit of common brotherhood amongst all the people of
India transcending religious, linguistic and regional or sectional diversities; to renounce
practices derogatory to the dignity of women; Thus it forms part of our personal obligation to
protect the dignity of women and not to resort to any activities which are derogatory to the
women.

The Equal Remuneration Act, 1976, the Maternity Benefit Act, 1961, the NREGA,2005, the
Prenatal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994, the Dowry
Prohibition Act, 1961 and the Immoral Traffic (Prevention) Act, 1956 are some of the laws
related to women empowerment in India. Although these principles are strictly not
justiciable, the Supreme Court of India, through its judicial activism, has infused dynamism
into these non-justiciable provisions and issued directions to the state to implement them. The
73rd and 74th Amendments (1993) to the Indian Constitution have served as a major
breakthrough towards enhancing the women’s participation in democratic process. The
Supreme Court in Muthamma v. Union of India41 and Air India v Nargesh Mirza42 struck
down discriminatory service conditions requiring female employees to obtain government
permission before marriage and denying married and pregnant women the right to be
employed. In Vishaka v. State of Rajasthan43 , the Supreme Court observed that Equality in
employment can be seriously impaired when women are subjected to gender-specific
violence, such as sexual harassment in the workplace. And therefore issued guidelines to
ensure women have equal working conditions and are protected from sexual harassment. In
Mackinnon Mackenzie & Co. Ltd v. Audrey D’Costa44 the Court observed that there was
discrimination in payment of wages to lady stenographers and such discrimination was being
perpetuated under the garb of a settlement between the employees and the employer. The
Court finally not only made it mandatory to pay equal remuneration to lady stenographers as
their male counterparts but also observed that the ground of financial incapability of the


41 AIR 1979 SC 1868.
42 AIR 1981 SC 1829.
43 AIR 1997 SC 3011.
44 AIR 1987 SC 1281.

management cannot be a ground to seek exemption from the Equal Remuneration Act, 1976.
Hindu Succession Amendment Act 2005 is a piece of central legislation that was brought into
force in all our states. The Act confers equal rights of inheritance to Hindu women along with
men, thus achieving the constitutional mandate of equality.

Women’s reservation bill

Women’s Reservation Bill or the Constitution (108th Amendment) Bill, is a pending bill in
India which proposes to amend the Constitution of India to reserve 33 per cent of all seats in
the Lower house of Parliament of India, the Lok Sabha, and in all state legislative assemblies
for women. The seats to be reserved in rotation will be determined by draw of lots in such a
way that a seat shall be reserved only once in three consecutive general elections. The Upper
House Rajya Sabha passed the bill on 9 Mar 2010. As of February 2014, the Lower House
Lok Sabha has not yet voted on the bill. If the Lok Sabha were to approve the bill, it would
then have to be passed by half of India’s state legislatures and signed by the President.

There are adequate legislations in India which not only removes the discrimination against
women but also empowers the women. The Constitution itself makes room for the
discriminatory laws in favour of the women who are considered the weaker sex,
disadvantaged and discriminated in the male dominated society. The action wise plan of the
Government in preventing the discrimination has proved the legislations as a failure. The
existence of these laws only in the books is the major problem in India. The Supreme Court,
however, has taken initiatives too and in some cases issued directions to the Government as
well. But the implementation of these legislations in actual sense is very much necessary to
remove the discrimination in the society.

DEPICTION OF WOMEN BY MEDIA

“Despite the tremendous increase in female participation, many have argued that sport as an
institution continues to perpetuate male dominance in society”45Although much progress has
been made over the last century in portraying women as legitimate athletes in a variety of
sports, there are still many ways in which we continue to marginalize them. The sports media
industry, in particular, plays a significant role in the continued negative portrayal of female
athletes. Whether it be through objectification, the use of sexist language, or even through the


45 Darvin & Sagas, 2017, p.178.

hiring of woman for sports television networks, the media continues to emphasize the
masculinity of sport as a whole, while preserving the femininity of female athletes.

It is a well-known fact that men’s sport receives significantly more media coverage than their
female counterparts; what often falls under the radar, however, is the difference in the quality
of media coverage between males and females. “An investigation of the production–reception
relationship for women’s events found that these broadcasts contained fewer camera angles,
fewer special effects, and fewer shot types than comparable men’s events”46 Due to the lack
of effort to provide quality coverage of female sport in the media, viewers may be less likely
to find female sports as exciting as male sports, which may contribute to the large gender
differences in media coverage. Regardless of how far woman may deviate from the typical
gender stereotypes in sport, they continue to be objectified. Take former UFC champion
Ronda Rousey, for example. As a mixed martial artist, she possesses a number of
“masculine” characteristics that are opposite of what society expects a female athlete to
possess: aggressive, strong, powerful, and muscular. Despite her “manliness”, she can still be
seen posing in a bikini on the cover of the popular Sports Illustrated swimsuit issue. This
type of objectification of female athletes in the media tends to mislead society into believing
that in order for a female to succeed in the sports world, they must not only perform at a high
level, but also look good while doing so. Along with the quality and type of media coverage
that female athletes receive, the use of gendered language has also led society to portray sport
as a male-dominated domain.

Although it may seem to be a minor detail when looking at the various factors contributing to
media’s negative portrayal of women in sport, the language used in sports media can
significantly impact the way we see sport. Fink (2015) used the term “gender marking” when
reviewing the differences in media coverage between males and females; this refers to the
“verbal and visual presentation of male athletes and men’s sport as being the norm, while
rendering female athletes and women’s competitions secondary status” (p.333). Much of the
language seen in today’s sports is gender marked; for example, the use of the word
“Women’s” tends to be included for female sports leagues, while the word “Men’s” is often
omitted in male sports (e.g., Woman’s National Basketball Association vs. National
Basketball Association). Although it may go unnoticed, this type of language assumes that
men’s leagues are the standard, while woman’s leagues come second. The use of gender-


46 ibid.

marked language can also be seen in sports commentary, where we often hear the term
“female athlete” as opposed to “athlete”. Weiller and Higgs (1999) observed gender
differences in media coverage of a men’s and a woman’s golf event, and found that gendered
language was used 36 times in the woman’s event as opposed to just 8 times in the men’s
event.47 As long as the media continues to imply that sport is a male domain through the
language that they use, woman will continue to be limited in their opportunities to be
respected as athletes. When looking at sports television networks specifically, female
sportscasters generally play different roles than their male colleagues, which can also
contribute to the negative portrayal of woman in the sport’s world.

Usually a woman sports analyst is responsible for recapping sporting events or interviewing
athletes. Rather than being hired for their knowledge of sports and their ability to dissect
different sports plays, females seem to be hired for their physical appearance and their ability
to present news stories. Questioning the credibility of woman in the sports broadcasting field
could potentially carry over to the actual sports setting, where woman may feel as though
they are not as capable as men to excel in sports. Harris (2012) explored females’ credibility
when commenting on male and female sporting events, specifically basketball; results found
that both men and woman categorized as high sports watchers gave the female sportscaster
higher dynamism and qualification ratings than the male sportscaster.48 If sports television
networks can move towards a more equal distribution of male and female sportscasters, then
viewers may begin to see that females are just as knowledgeable in the area of sports as men
are, and may therefore shift society’s perception of sport as being more for males.

In order to continue to work towards gender equality across the sports spectrum, several
adjustments need to be made in the way media portrays women’s role in sport. Media outlets
need to emphasize the athletic qualities of female athletes, rather than objectifying them and
persuading viewers to admire their physical attractiveness instead. Sports organizations and
commentators need to be aware of sexist language, and work towards using more gender-
neutral language in order to move away from the notion that males are the dominant gender
when it comes to sport. Females working for sports media networks need to be recognized
more for their ability to analyze sport rather than their ability to simply present sports news.


47 Ryan L., ‘Media’s negative portrayal of Women in Sport’ (Gender, Leisure and Sports)
https://genderleisureandsport.wordpress.com/2018/03/02/medias-negative-portrayal-of-women-in-sport/
accessed on 18th March 2019.
48 Harris, K. (2012). Gender Stereotypes, Gender Segregation, and Credibility: Crossing the Lines in Sports
Media. International Journal Of Sport & Society, 3(2), 137-159.

With media being one of, if not the largest influencer on society’s perception of sport, major
changes in this domain are crucial in order to provide an equal opportunity for woman
participating in sport.

When the media does choose to focus on female athletes, they tend to focus more on their
appearance and clothing. Maria Sharapova, a tennis player who receives more media
attention about her looks rather than her athletic ability. Research has shown that
commentators rarely report on Sharapova without also commenting on her appearance.49

Money follows the exposure and attention. “Forbes published an article in 2010 on the
highest paid female athletes. Tennis player Maria Sharapova, ruled as the top-earning female
athlete50. .

It shouldn’t be any surprise to realize that during the U.S. media build-up towards the Sydney
Games the most photographed female athlete was not Marion Jones but Amy Acuff. Acuff is
6ft 2in, blonde, part-time model, and a high jumper. She didn’t say anything about wanting to
win a gold metal during the pre Olympic media coverage. Instead she said she wanted to
work on the Sports Illustrated swimsuit edition: “Because people get a lot of attention for
that.”51

“This is a classic example of the fact that female athletes tend to gain media attention at least
as far as photographs are concerned – for what they look like and not necessarily for their
sporting achievements.52

‘Such aspects in sports leading to glorification of the bodily aspects degenerates the societal
values and has an adverse effect on the psyche of adolescent girls.’53

This change is needed at all levels of society and in relation to sport; change will occur when
more programs are created to encourage women to participate in sports at all levels. Also,
importantly is the inclusion of women in high level administration of the sports, when more


49 Aimee Lamourex, ‘How the Media portrays female athletes’ (22 April 2012)
https://aimeelamoureux.wordpress.com/ accessed on 21 March 2019.
50 https://www.forbes.com/2010/08/18/top-earning-female-athletes-business-sportsmoney-female-
athletes_slide.html#33d8aa176010.
51 ‘How the Media portrays Female Athletes’ (22 Apr 2012)
https://aimeelamoureux.wordpress.com/2012/04/22/how-women-are-treated-in-sports-and-the-media/ accessed
on 20th May 2019.
52 Alina Bernstein, ‘Women in Sports Media: Time for a Victory Lap?’.
53 www.un.org/womenwatch/daw/public/womenandspor.pdf.

women coaches are hired, when more women are hired in media as reporters and analysts.
These changes can only happen if those at the highest level believe that change must happen
and while these recommendations are only several of what needs to be implemented to
change the perception of female athletes. It is important that all of us become involved in
changing the way sport is perceived and valued.

UK AND EUROPEAN LAW

In 2002 Christine Goodwin and another woman referred to as “I” took the UK to the
European Court of Human Rights in the two landmark cases of Christine Goodwin v
UK54 and I. v. UK55. Christine and “I” complained about the lack of legal recognition in the
UK of their post-operative sex and about the legal status of transsexuals in the UK following
the then leading case of Corbett v Corbett56. They complained, in particular, about their
treatment in relation to employment, social security and pensions and an inability to marry.
They relied upon Articles 8, 12, 13 and 1457 of the European Convention on Human Rights in
their separate applications to the court in Strasbourg.

The judgment delivered in the Strasbourg court58 unanimously held that the UK’s failure to
recognise Christine’s and “I”s new identity in law breached their rights to respect for privacy
and their right to marry under the European Convention on Human Rights. As a result of
these two important cases the Gender Recognition Act 2004 was brought into force in the UK
giving legal recognition to transsexual people in their acquired gender. Under the law if an
application to the Gender Recognition Panel is successful, the transsexual person’s gender
becomes for all purposes their acquired gender and they receive a full gender recognition
certificate. This certificate allows for the creation of a modified birth certificate reflecting the
holder’s new gender. In specified circumstances the Act prohibits disclosure of the fact that
someone has applied for a certificate or disclosure of someone’s gender prior to the
acquisition of it. Such disclosure constitutes a criminal offence liable to a fine under section
22 (8) of the Gender Recognition Act 2004.

TRANSSEXUAL ATHLETES IN PROFESSIONAL SPORT


54 Application no. 28957/95.
55 Application no. 25680/94.
56 [1971] P 83.
57 Article 8,12,13,14 of the European Convention on Human Rights.
58 Christine Goodwin v. The United Kingdom, Application no. 28957/95.

There have been several high-profile instances of transsexual athletes finding it hard to
compete in their chosen sporting discipline. The most recent case to hit the headlines is that
of Fallon Fox, an American mixed martial artist (MMA) and notably the first known
transgendered athlete in the MMA.59 In 2006 Fox underwent gender reassignment from male
to female, including breast augmentation and hair transplant surgeries prior to beginning her
career in MMA.60 Following her first two successful fights Fox came out publicly as
transsexual in March 2013 in interviews with Out Sports and Sports Illustrated. Controversy
swelled over confusion with the California State Athletic Commission (CSAC) and Florida’s
athletic commission over Fox’s license to fight. Due to the controversy and the licensing
procedure CFA co-founder Jorge De La Noval, who promoted Fallon’s previous fights, stated
that his organisation will not “turn our backs on her… As long as she’s licensed, she’s always
welcome in our promotion. We stand behind her and we give her all of our support.”
However at present she is still not able to fight.

Lana Lawless, who had gender reassignment surgery in 2005, won the Women’s Long
Drivers of America (LDA) competition in 2008 when she hit a golf ball more than 250 yards.
In 2010 the LDA changed the rules to prevent her from competing in the competition again.
Likewise, so did the Ladies Professional Golf Association (LPGA) who had a requirement in
their bylaws stating that participants must be “female-born”. Lana is legally recognised as
female, but not according to the LDA or the LPGA rules.61 Lana went on to file a US federal
lawsuit against the LPGA and LDA arguing that its requirement that competitors be “female
at birth” violated California civil rights law and were discriminatory. The law suit was only
dropped when the LPGA and LDA released a joint statement with Lana Lawless in May 2011
in which they confirmed that:

“The Ladies Professional Golf Association (“LPGA”) expresses its appreciation to Lana
Lawless for raising the issue of transgender participation in its tournaments and other
professional activities. Both Ms. Lawless and the LPGA are pleased that the litigation
initiated by Ms. Lawless has been resolved in a satisfactory way, and applaud the LPGA


59 Jos Truitt, ‘Fallon Fox on life as a trans athlete: The scope of vitriol and anger was mind-blowing’ (16
February 2015) https://www.theguardian.com/sport/2015/feb/16/fallon-fox-trans-mma-athlete-interview
accessed on 19th March 2019.
60 John Van Der Luit-Drummond, ‘Sport and Transgender athletes’ (2 June 2013)
https://www.lawinsport.com/topics/articles/regulation-a-governance/item/sport-and-transgender-
athletes?tmpl=component&print=1 accessed on 20th May 2019.
61 Transsexual athletes treated unfairly by Donna Rose, CNN (20 October 2010) para 1.

members who voted overwhelmingly to remove the “female at birth” provision from its
by-laws.”

Arguably the most high-profile example of transsexuality in football came about in June 2005
when Martine Delaney, formerly Martin Delaney, was allowed to compete in Soccer
Tasmanian’s women’s league. Delaney, played regularly for Claremont United and was
encouraged to continue to play by her team-mates, while other players in the league were
concerned about her excellent form after she scored six goals for her club. Questions were
raised about her right to play in the league and several opponents complained to the Football
Association of Tasmania.62 However, both Soccer Tasmanian and the Football Federation of
Australia confirmed that Delaney was entitled to play in the league as, according to a ruling
made by the International Olympic Committee (IOC) in May 2004, she is classed as a female
and banning her would contradict their anti-discriminatory rules.63

THE STOCKHOLM CONSENSUS
In October 2003 an ad-hoc committee64 convened by the IOC Medical Commission convened
in Stockholm, Sweden, to discuss the inclusion of transgender athletes at the following
Olympics. On May 17, 2004, the IOC adopted the committee’s report, known as the
Stockholm Consensus. This report opened the door for transgendered athletes to compete in
the then upcoming Athens Olympic Games. The Stockholm Consensus has three main
requirements for transsexual athletes to be recognised in their acquired gender and is widely
used by most international sporting bodies:

§ They must have had gender reassignment surgery
§ They must have legal recognition of their assigned gender by the appropriate official

authorities
§ They must have at least two years of hormone therapy


62 Has Transsexuality in Football Turned a Corner by Chris Ledger for inbedwithmaradona.com (5 January
2011) paras 2-3.
63 Supra 60.
64 The committee was comprised of the following experts Prof. Arne Ljungqvist (SWE), Prof. Odile Cohen-
Haguenauer (FRA), Prof. Myron Genel (USA), Prof. Joe Leigh Simpson (USA), Prof. Martin Ritzen (SWE),
Prof. Marc Fellous (FRA), and Dr Patrick Schamasch (FRA).

These recommendations are now binding on any transsexual athlete that wishes to take part in
a sporting activity governed by the IOC and have also been adopted by other sport governing
bodies.

In England, the Football Association’s (FA) Policy on Transgender and Transsexual People
in Football65 is heavily influenced by the decisions made by the IOC. The FA’s governance
page on their website talks about how ‘an individual’s sexual orientation or gender identity
should never be a barrier to participating in, and enjoying, our national sport,‘ and how, ‘the
FA is uniquely placed to tackle unacceptable and discriminatory behaviour in football. Why?
Because as the guardian of the game in this country, The FA will continue to work tirelessly
to ensure the game exists for EVERYONE’

In the UK male-to-female and female-to-male transsexuals who underwent gender re-
assignment surgery before puberty are automatically regarded as their acquired gender under
FA rules. However, it is far more complex an issue if the change occurred after puberty. A
player would then only be eligible to play as their acquired gender if surgical anatomical
change has been in effect for two years and if hormonal therapy has been administrated. They
must also prove that the Gender Recognition Panel recognises their acquired gender pursuant
to the Gender Recognition Act 2004.

Transsexual people must be clearly differentiated from intersex people who are born with
sexual or reproductive organs of both sexes. As the biological sex of an intersex person is
ambiguous at birth, the sex of the child is often selected by the physicians and family66 But
what happens when later in life the child’s body develops in such a way that they identify
with the opposite sex than the one chosen for them? The leading case in this area was W v W
(Nullity),67 where Charles J held that if a person was born with ambiguous genitalia the
individual’s sex was to be determined by considering certain biological markers.

BIOLOGICAL MARKERS

These biological markers68 include:

§ chromosomal factors;


65 The Football Association (FA) Policy on Transgender and Transsexual People in Football.
66 A detailed discussion of the medical and legal issues surrounding intersexual individuals can be found in
Chau and Herring (2002).
67 [2002] 3 FCR 74812 SRY gene detection involves testing the gene that triggers male sex determination.
68 Biomarkers Definitions Working Group (March 2001). "Biomarkers and surrogate endpoints: preferred
definitions and conceptual framework". Clin. Pharmacol. Ther. (Review).

§ gonadal factors;
§ genital factors;
§ psychological factors;
§ hormonal factors; and finally
§ secondary sexual characteristics such as the distribution of hair and breast

development.

The most well-known example of the testing of biological markers in sport occurred in
August 2009 when South African athlete Caster Semenya won the gold medal in the 800-
meter event of the World Track and Field Championships only to face weeks of humiliating
psychological, gynaecological and physical testing to prove that she was in fact female.

The IOC adopted its first set of gender tests in the 1960s69 with “nude parades” where female
athletes were made to walk nude before a panel of IOC judges. The IOC later realised that
what is on the outside of an athlete does not always match what is on the inside. As a result of
this realisation the testing moved on to an athlete’s chromosomes. However, once it was
shown that women can have a single X chromosome that too was abandoned. Later came
SRY gene detection70, but following the Atlanta Olympic Games in which 8 women tested
positive for it but were all cleared for competition it was deemed that this method was also
not fit for purpose. The accepted laboratory based testing of verifying an athlete’s gender
during the period leading up to the Sydney Olympic Games relatively frequently, and
unfairly, singled out female athletes whose genetic make-up although not “normal” did not
provide them with an undue competitive advantage.71

The IOC then decided to dispense with the testing altogether, until Semenya’s case came
about. Semenya was unfortunately far from the first athlete to face this kind of intrusive
public scrutiny. The Indian middle-distance runner, Santhi Soundarajan, had her silver medal
from the 2006 Doha Asian Games revoked after she failed a gender test. She was
subsequently banned from her sport by the Athletics Federation of India72


69 A Lab is Set to Test the Gender of Some Female Athletes". New York Times. 30 July 2008. Archived from
the original on 4 September 2017.
70 Gender identity and sport: is the playing field level? By J C Reeser, The British Journal of Sports Medicine (3
May 2005) para 10.
71 Asiad silver medallist Santhi Soundarajan labours at brick kiln by V Narayan Swamy, The Times of India (24
July 2012.
72 Olympian wants gender testing banned by Canadian Running Magazine (2 February 2012) paras 5-8.

CRITICISMS OF THE SPORTING AUTHORITIES

The Kick It Out73 campaign, which is funded supported and funded by the game's governing
bodies, including the Professional Footballers Association (PFA), the Premier League and
The Football Association, believes that while the FA’s policy on transgendered players was
probably introduced with good intentions and to prevent footballers lying about their gender
and thereby ensuring that the game was played fairly, but there may be legitimate concerns
that the policy could be discriminatory. Under the FA’s policy (as in others) there is a
requirement that an individual must have extensive surgery to be allowed to partake in the
sport of their choosing. The cost for this sort of surgery is understandably quite expensive and
reduces the accessibility of transsexual athletes from playing in their acquired gender.
Associations like the FA could therefore be accused of denying some the chance of playing in
a particular league, even if they had the required hormonal treatment.

Furthermore, even if an individual has the surgery they must have had it for two years prior to
even beginning the application process and as we all know, a footballer’s career is not exactly
a long one.

Some experts and commentators hold the view that gender should not be an issue at all in
competitive sport. Former Canadian Olympian and professor of physical education and health
at the University of Toronto, Bruce Kidd, publicly declared his opposition to gender testing in
sport prior to the London Games.74 Kidd stated that women’s success in sports is too often
seen as unnatural and a threat to male dominance. Kidd suggests sport should stop separating
women and men as two separate groups. Instead we should think of humans as a spectrum of
variation and that sports should be re-organized in such a way that athletes would compete
solely on the basis of ability and not their gender. As Rebecca Jordan-Young and Katrina
Karkazis noted in the New York Times, size and strength could, in the future, provide a better
basis for groupings than sex alone. They suggest that by protecting the principle of sex
segregation can undermine female athletes, and an example of this would be a recent rule by
the International Association of Athletics Federation (IAAF) that women’s marathon records
cannot be set in races that include male competitors.75 This rule would have effectively


73 You Say You’re a Woman? That Should Be Enough by Rebecca Jordan-Young and Katrina Karkazis, The
New York Times (2012) para 20.
74 John van der Luit-Drummond, ‘Sport and transgender althletes’
https://www.lawinsport.com/topics/articles/regulation-a-governance/item/sport-and-transgender-athletes>
accessed on 19th March 2019.
75 Ibid.

eliminated Paula Radcliffe’s best time in 2003, in which she beat the record by three minutes.
Jordan-Young and Karkazis’ article does go on to suggest that sex segregation is probably
still a good idea in some sports and at some levels. They argue that it might be time to refocus
policy discussions at every level so that sex segregation is only one means to achieve fairness
and not the ultimate goal.

Athletes, the general public, and sports clubs do not have the power to ‘legislate’ and sport
governing bodies are more involved in the ‘regulation’ of sport often taking their cues from
actual legislation such as the Gender Recognition Act 2004. Yet even so all parties appear to
struggle to grapple with the complexity and wide variety of cases and the issues that are
raised in this area especially as science and our understanding of the human body and what
defines us as male or female continues to change. There is no magic starter pistol or referee’s
whistle that will solve the issues faced by transsexual athletes. There is no doubt that sporting
authorities have come a long way since the nude parades of the 1960s, things have improved
somewhat to those athletes constrained by their gender. Who knows what the sporting
landscape might look like in another fifty to sixty years from now, although that may be of
little comfort now to athletes such as Santhi Soundarajan or Fallon Fox. Perhaps it is time,
following the Caster Semenya case, for the IOC, in conjunction with other leading sporting
authorities to review its regulations on the issue of transsexuality in sport in order to ensure
that sport does indeed exist for everyone including this minority

India’s perspective

India’s tryst with transsexualism in sport arose in the case of Shanti Soundarajan. An Indian
runner who won a silver medal in the women’s 8oom at Doha Asian Games failed a gender
test at the games and was stripped of the medal. It was said that she did not possess sexual
characteristics of a woman.76 The IAAF can request the contenders to take such tests at any
time, and include intensive examination by a gynecologist, an endocrinologist, a
psychologist, and an internal medicine specialist. There is no sure shot test of determining
one’s gender and questioning an individual’s gender can have serious repercussions qua the
right to privacy enshrined under Article 21 of the Constitution of India.

Gender Testing and Human Rights


76 K Mohan, ‘Did OCA Exclude all the Possibilities’ (13 September 2009).

In the case of Richard vs United States77 Tennis Association a man named Dr Richard
Ruskind underwent a sex change operation and became Renee Richards and competed in US
Open in 1978 reaching the quarterfinals. It was held by the New York trial court that the test
she was subjected to was administered, as she had suspected, in order to prevent her from
participating in the games. In the view of this particular case the court granted preliminary
injunction in a favor of Richards while stating that restriction of her participation was a
violation of State’s Human Right Laws

The IOC has informally encouraged sex-testing since the 1936 Olympics, and formally since
the 1968 Games.78 The first mandatory sex test issued by the International Association of
Athletics Federation (IAAF), the world's track and field governing body, for woman athletes
was in July 1950 in the month before the European Championships in Belgium.79 All athletes
were tested in their own countries At first there was the visual exam, where female athletes
had their genitals inspected by "qualified" experts to ensure they were all indeed female.
Then came chromosome testing, followed by DNA examinations. Each time, researchers and
advocates appealed to the IOC to stop the madness, explaining that sex could not be pinned
down to one single variable: not to genitalia, not to chromosomes, not to DNA.

The IOC rejected this scientific truth, grasping somewhat impulsively to other areas of
science to help justify its discriminatory practice. It has recently latched on to testosterone as
if it was the Holy Grail To Womanhood. The IOC claims that some competitors are not really
female because their testosterone levels are too high, and do not fall within the IOC's
prescribed range for how much testosterone females should have.80

Women who do not fit their policy can either undergo medical intervention to force their
biology into that shoebox, or quit. Several young healthy women underwent a series of
invasive procedures, including clitoral amputation, to remain in competitive sport.
Researchers and advocates jumped back into action, explaining to Olympic officials that

AND
77 400 NYS 2d 267.
78 Martínez-Patiño, Maria José (December 2005). "Personal Account: A woman Tried and Tested”.
79Dohle, Max; Ettema, Dick (2012). "Foekje Dillema". Archived from the original on 22 April 2016.
80 CAS ARBITRATION: CASTER SEMENYA, ATHLETICS SOUTH AFRICA (ASA)
INTERNATIONAL ASSOCIATION OF ATHLETICS FEDERATIONS (IAAF):

testosterone is not a marker of sex.81 The IOC forged on, saying all this testosterone gives
these females an unfair advantage over other females whose testosterone levels aren't as high.

There are also thousands of other substances on the World Anti-Doping Association's
(WADA) banned list that hardly ever generate the attention testosterone does. It is perceived
differently: testosterone has become the signifier for sporting excellence. Fear mongers run
amok with this belief, claiming "fairness" in sport needs to be preserved at all costs -- sex-test
those girls! -- as if a marketing brand should trump human rights.
There are dire consequences of submitting to the policy. We all need testosterone to be
healthy. This is true for all bodies, young and growing, maturing, struggling through
menopause, or people who have transitioned from a male to a female sex (and who are
immediately propelled into menopause from having their testes removed).82 And because
every body is different, every body responds differently to hormone therapy. The concoction
that helps one person regain and maintain their health is not the same for the next. It's not a
matter of fairness or performance. It's a matter of health equity.
The IOC's latest policy on sex-testing, approved in January 2016 has two branches and each
focus on testosterone: one deals with hyperandrogenism (naturally occurring high levels of
testosterone in females) and the other deals with transitioned athletes as a whole (who must
undergo hormone replacement therapy to regulate basic health).
Even then, transitioned men cop a very mere mention: "Those who transition from female to
male are eligible to compete in the male category without restriction," while transitioned
females must meet the IOC's specified criteria or have their hormones suppressed to ensure
her testosterone levels remain below the prescribed level "throughout the period of desired
eligibility."83

While these two branches and issues are intertwined, they continue to be discussed as
separate items, and most of what we hear about in the news lately concerns the
hyperandrogenism rule. It is the good news story in this sordid mess: the Court of Arbitration
for Sport, the legal body governing world sport, ruled in 2015 that there was not enough
medical evidence to justify the hyperandrogenism rule and therefore suspended it until further


81 The New York Times Magazine, The Humiliating Practice of Sex-Testing Female Athletes, 7Th March
2016.
82 ‘Sex hormone and your heart’ (Harvard Health Publishing) https://www.health.harvard.edu/heart-health/sex-
hormones-and-your-heart> accessed on 19th March 2019.
83 https://www.huffingtonpost.ca/janice-forsyth/olympic-sex-testing

notice.84 Adherents have since been frantically trying to convince the world of the need for
such lunacy.


84 CAS 2014/A/3759 Dutee Chand v. Athletics Federation of India (AFI) & The International Association of
Athletics Federations (IAAF).