Transgender and Intersex Sports Rights

Abstract

Earlier this year, the two-time Olympic Gold Medalist for the women’s 800-meter run, Caster Semenya, was told by the Court of Arbitration for Sport (CAS) that she would have to start taking medication to reduce her naturally high levels of testosterone if she wanted to continue to compete in the 800- meter women’s run event. This controversial ruling has sparked great public interest and debate about who should be allowed to compete in women’s sporting teams and events, given what we know about intersex and transgender individuals. This article discusses how best to include transgender and intersex individuals in school sports, considering the requirements of both Title IX and the Equal Protection Clause. This article shows that schools should allow transgender and intersex students to play on sports teams that correspond with their gender identity, except in cases where there is a bone fide safety or fairness concern based on the specific characteristics of the individual, rather than based on overbroad generalizations about the characteristics of either males or females. Finally, this article discusses the necessity of maintaining the gender binary in sports at all and concludes that all sports teams can and should be divided, if at all, not based on sex, but instead based on sex-neutral characteristics such as skill, weight, height, strength, and/or testosterone level.

Keywords: Transgender, Intersex, Athlete, Sports, Title IX, Equal Protection

JEL Classification: k