Swallows and Amazons, or the Sporting Exception to the Gender Recognition Act - Case Study Example

? SWALLOWS AND AMAZONS, OR THE SPORTING EXCEPTION TO THE GENDER RECOGNITION ACT submitted SWALLOWS AND AMAZONS, OR THE SPORTING EXCEPTION TO THE GENDER RECOGNITION ACT Introduction The inclusion of the transgendered athletes into sporting activities has raised eyebrows for quite some time in for sports governing bodies globally. As early as 2003, there was hardly any policy at all that governed the participation of transgendered persons in sports. Globally, the major objective of the International Olympic Committee’s sex verification was to prohibit male contestants from participating in female events. In that regard, the Gender Recognition Act 2004 therefore maintained that transgendered individuals be denied the opportunity to take part in sporting activities if their involvement is not encouraging to either ‘safety’ or ‘competitive fairness’. This paper reflects on the rights of the transgendered personalities, and specifically what the United Kingdom’s Gender recognition Act 2004 purports in regard to sports’, and the law’s, obscurity in obliging their participation in sports. This paper will therefore focus on the Section 19 of the Act. The s.19 of the Act facilitates various sporting bodies in prohibiting transgendered people of participation on the grounds of their ‘safety’ or ‘competitive fairness’ (Jack, 2006). This will be supported by the fact that neither ground can be established in the light of both the existing case law in transgender rights accompanied by the existing position of therapeutic acquaintance. The possibility that s. 19 otiose is in part a consequence of being a hastily drafted provision and lately inserted to appease the sports lobby and its mouthpieces in the House of Lords. This paper is thus, a social and legal study on the Swallows and Amazons, Or the Sporting Exception to the Gender Recognition Act. Statement of facts The participation of transgendered in sporting activities does not, and probably cannot, ‘fit in’ with the sports field’s standards. It is obvious that sporting activities have an aversion to those bodies that appear ‘different’, so much so that even disabled partakers – the ‘deserving poor’ of the sports field - are scrutinized, labeled and categorized in preparedness for their own, ‘Special’, Olympics at a particular moment when the informed harmony has undeniably moved away from the medical model of disability (Peter, 2005). The individuals whose bodies are outside the norms of sex gender due to their innate biology or due to the fact that they eschew the paradigm of normal manliness or femininity. Also the heterosexuality imperative that are faced with unique challenges: struggles over the sporting body which led to litigation by for instance, pregnant participations or female boxers with the aim of determining and relation of an acceptable level of the male hormone amongst female athletes. This has really aggravated the attention of the judicial field. Another area is the aspect of gay men or lesbians women who remain marginalized, in order to allow the International Olympic Committee would sanction of the use of the word ‘Olympic’ at the Gay Games. This is happening while the ‘Canine Olympics’, ‘Scout Olympic’, and ‘Police Olympic’ have been tolerated in the past twenty years (Jack, 2006). Sex chromatin screening was also added to the testers’ arsenal in an implicit acknowledgement in 1967 since the governing bodies did not have an interest in male imposters but instead they had an interest in females who had unusual chromosomal compositions producing testosterone not normal in women (Aileen, 2006). Various high profile athletes who had unusual chromosomal compositions had to justify through testing to their rivals who felt threatened. This is because they were viewed to have an unfair advantage to their rivals who subsequently resented their success in sporting activities (Aileen, 2006). This proved very controversial since unusual chromosomal patterns do not result in an increased level of testosterone. Unrelenting protestations in regard to manual examination led to the subsequent removal of the sex chromatin screening in 1970s, however, the international organizations for sports remained determined to maintain a testing regime that assured femininity in the competitors participating in the Olympics. The continued use of sex testing accompanied by its unhappy history in conjunction with the recent legislation and limited case law concerning transgendered participation. This helped in illustrating, although it does not fully explain, sports’ concern with these vile bodies, whether they occur in the guise of the masquerading men and the chromosomal freaks or the latter day image of transsexual Amazon. The transgressive athlete body, therefore, continues to clearly help in providing cause for substantial concern within the field of sports (Jack, 2006). Statement of the Issue/Problem The practical taxonomies of masculine and feminine in most cases thrive in sports, because when dressed in the guise of ‘sporting tradition’, ‘fair play’, they give room to just enough logic for the needs for practical conduct. This in turn successfully challenges the social meaning of related to being for instance, a pregnant, disabled, or transgendered participant in sporting activities which also necessitates a redistribution of social capital. Particularly in the context of transgender participation, this fundamental complexity with ‘other’ bodies can be regarded as having originated in the development of widespread, state sanctioned doping regime established in the 1960s. This was resulted to the consequent emergence of male athletes from the Soviet bloc believed to have participated and competed surreptitiously in women’s events. Evidence to support the above statement was more than anecdotal, yet the scarcity of facts concerning the extent of anabolic steroid use among female athletes fuelled the allegations for a period not less than a decade. Femininity testing was then brought into existence during the 1964 Olympics, but excluded the case of two sisters from the Soviet Union since their case was that of a genuine intersex case (Aileen, 2006). Identification of the Relevant Law The relevant law that seeks to protect the sporting participants is the Sport and the Gender Recognition Act. The Gender Recognition Act 2004 was one of the National Assembly’s responses to UK law’s persistent breaching of transgendered persons’ Convention rights, as recognized by the European Court in Goodwin v The United Kingdom (2002) and also the House of Lords, as identified in Bellinger v Bellinger (Helen, 2006). For example in Goodwin, the European Court made a confirmation that indeed UK’s failure to recognize an affirmed woman’s change of status which violated her rights as stated under Articles 8 and 12 of the Convention. On the other hand, in Bellinger it was declared that the Matrimonial Causes Act 1973, s. 11 (c) provided that an individuals born of one sex could not subsequently become a person of the other sex with the intended purpose of getting married (JCHR, 2003). Indeed, this was found to be incompatible with Articles 8 and 12 since it prohibited a declared woman from getting married to a man. Notwithstanding these obiter comments, the draft Gender Recognition Bill did not touch on matters pertaining to sports participation as reported in the Joint Committee of human Rights (JCHR, 2003). The wording of s.19 as enacted and (albeit limited) extent to which the courts are likely to refer to the legislative intent and putting into consideration the provisions of the Act and that if an individual assumes that the provision is compatible with Convention rights notwithstanding the (quasi-) public nature of sports bodies (IOC, 2004). In regards to that, s. 19 thus provides that A) body that mandated to the regulation of the participation of persons as contestants in an event(s) involving a gender-affected sport may, if sub-section 2 is satisfied prohibit the participation as contestants in the event(s) of individuals who gender has become the acquired gender under this Act. B) This sub-section is contented if the restriction is needed to secure i) the safety of competitors at the event(s) or ii) fair competition. C) “Sport” stands for sport, game or any activity that is competitive in nature. D) A sport thus is termed as a gender affected sport when the stamina, physical strength, or physique of the average individuals of single gender is likely to render them at a disadvantage to average persons of the other gender as contestants in events involving sports (Peter, 2005). Application of the Law Section 19 inserts into legislation otherwise concerned with enhancing rights a ‘sporting exception’ that exists basically due to the complexity in getting beyond what ‘common sense’ tell us in regard to sports, gender and sex. This law is essential since it goes beyond transgendered participation since s. 44 of the 1975 Act purports that the perception that natural, biological qualities determine social activities. Sport has an easy time in converting these ‘common sense’ generalization into the specific, categorical differences that underpin the separate provisions for the sexes that is made in most disciplines, and the juridical field reinforces them through both s. 19 and s. 44 (IOC, 2004). While this is not to the denial that recent and partial feminization of sports has led to various participant creating new modes of identity. Helen, (2006) affirms that notwithstanding the rise of women soccer in both North America and Europe maybe due to increased media interest in women’s golf and tennis, the female sporting body still has various duties for its aesthetic and expressive activities. The limited engagements by the juridical field in regard to sports’ gendering activities or practices have in most cases amounted to little more than tinkering at the edges – thereby reminding us that the most efficient domination only crops up when the dominant and the dominated class believe that the existing order, with perhaps some little alteration, is satisfactory, or at least presents tae most that anyone could expect (Helen, 2006). From a legal perspective, legitimate sports and gendering practices are what makes sport ‘special’ and it also aids in making the concept of ‘sports law’ as a discrete discipline. The sports-specific case-law discussed herein, when placed alongside the courts discussions on for instance sports, consent, and violence as witnessed in the case R v Brown [1992] and in the Canadian case of R v Ciccarelli [1989] reveals that the juridical field is potential in reinforcing sports gendering practices even while ostensibly challenging them. Moreover, such cases as the ones mentioned above remind us of the popular cultural reforms scarce to resist the force of law; the sports field’s guiding principles. Even though they are full of contradictions, they are rendered as capable of ensuring that much is changed in the field of sports (IOC, 2004). Conclusion Opprobrium and stigmatization, the effects of a lifetime of hormone injections, the direct health implications of possible surgery and other related treatments accompanied by side-effects are not likely to trivialize in regard to the attempt to try and earn a competitive merit in sporting activities. In various cases, it has been noted that an individual may decide to sacrifice his penis for a victory provided that drug abuse, blood doping, urine transplant overtraining, use of steroid, and risking even loosing ones life are all parts of modern sport scene that does not withstand serious scrutiny and are classified as acts of doing what it takes to win (Peter, 2005). Perhaps what can be noted as the achievement of s. 19 is that it illustrates the sports’ role as a gendering practice remains a given; so firmly entrenched that even the possibility of alteration is off the radar. It is always worth raging against the dying of the light, yet, it is very difficult to make headway in the face of ‘common sense’ and that which is ‘normal’ between men and women (Peter, 2005). It is thus essential to note that s. 19 at least requires a coherent justification to be given before a transgendered person is banned from taking part in any sporting activity. This must also determine whether it is for ‘competitive advantage’ or for safety reasons. Even though the history regarding sex testing purports that those who are banned might chose to leave quietly, it only takes an individual to make a test case for this reason s. 19 is actually a welcome addition to the debates regarding sports, law and human rights. Transgendered participants are required to go through surgical anatomical changes in addition to having received appropriate hormone therapy in order to lessen gender related advantages. The huge problem is how this needs to be minimized, which remains a quagmire. However, in any event(s), the International Olympic Committee (IOC)’s must regard change of sex and recognize it in their host jurisdiction so that these genders related advantages might possibly be minimized. It is essential for the international federation of sports to set up a body that will implement a policy that sets out that manner in which they will address the issues of transsexuals engaging in sporting activities. References Aileen K. (2006). “The Role of Parliamentary Intention in Adjudication under the Human Rights Act 1998”, Oxford Journal of Legal Studies 26(1): 179–206. Helen, J. L. (2006). “The Olympic Industry and Civil Liberties: The Threat to Free Speech and Freedom of Assembly”, pp. 63–77 in David McArdle and Richard Giulianotti (eds) Sport, Civil Liberties and Human Rights. London: Routledge. IOC, (2004). IOC Approves Consensus with Regard to Athletes who have Changed Sex, available at http://www.olympic.org/uk/organisation/commissions/medical/full_story_uk.asp?id=841 Jack, A. (2006). “An Accident of History: Why the Decisions of Sports Governing Bodies are not Amenable to Judicial Review”, Common Law World Review 35(3): 173–96. Peter, C. (2005). Transsexuals in Sport: A Level Playing Field, International Sports Law Review 2: 38–42. Read More