The Olympic Boxing Saga:Getting to the Bottom of the Gender Debate

By Rodolfo Ragonesi: Lawyer and Researcher in
History and International Affairs

Before diving right into this hot topic, kindly bear with me for a few lines as I ramble on a few basics by way of introduction. You will see why shortly.

Back in Law School many moons ago, we were made to study Roman Law, which some aspiring jurists found boring. It was actually fascinating, as is the point made by our lecturer that all of Justice and Law is built upon a framework of fundamental principles encapsulated in Roman maxims laid down in Latin. The entire philosophy of Law can be found in these maxims.

All trained athletes are familiar with the procedures of their coaches, insisting on them going back to basics, working on their fitness, positioning, strokes, follow-throughs, footwork, and breathing. No matter how good they are, they always get reminded to go back to the basics.

That is also precisely how we are trained in reading Law, always going back to the basics of the philosophy of Law and its fundamental principles and procedures. These could be so easily overlooked in the heat of a current debate. Yet without them, we are lost and out at sea, grappling desperately at one another as we all sink below the waves.

I remember other top jurists telling me in a light moment in the Chamber of Advocates how necessary procedures were because without them, there is no transparency, no level playing field, and therefore, no Justice could be achieved. I also noticed how another top lawyer, who went on to become a distinguished Judge outside our islands, would always keep his arguments very short and simple. In time I realised that the weaker a lawyer’s case was, the more s/he would try to muddy the waters and confuse the judges by obfuscating issues and conjuring up convoluted arguments. Therein lay the genius of that distinguished jurist, who, like Alexander the Great, would simply cut through such convoluted arguments like a sword cutting through the legendary Gorgon Knot.

Gender matters have traditionally been seen as relatively simple, although, of course, there have always been recognised exceptions when the male and female anatomy are either partially missing or mixed. These are the exceptions to the rule. But exceptions never invalidate a rule. That is why they are recognised as exceptions.

Take the golden rule against homicide. Even this has exceptions, which we refer to as justifiable homicide or self-defence/defence of another, in layman’s terms. In the nature of things, all rules have exceptions, which are, by definition, both exceptional and easily defined.

Just imagine the rules and interpretation of justifiable homicide suddenly becoming fluidic and subjective. Where would that leave us? Exceptions must always be strictly defined. That is a fundamental rule of legal procedure.

Our friends in the medical world have their own procedures. Their initial diagnoses, which, in layman’s terms, we call medical assessments, are carried out with a physical examination. This is also done at birth to establish gender, as the gynaecologist assesses the newborn’s anatomy. If doubts arise, the next step is to use equipment to make assessments through X-rays, scans and the like, and tests, be they blood, urine, saliva or other tests, which are then assessed in a lab. If no doubts arise with the initial physical assessments, such follow-ups are not generally done or recommended.

The whole Olympic Boxing bout is not just a media sensation. It is of extreme importance because it has brought the entire gender debate to the fore. How is this so?

OK, so let us go back to those famous fundamental principles, both legal and medical. Traditionally gender has always been seen as a matter of objective assessment based upon physical examination. As a group of school students aptly put it in a heated debate with their teacher, “if the person has male parts he’s a boy, if female parts, then she’s a girl”. I could not help smiling and being reminded of the simplicity in the logic of the child, who was the only one to see and state that the proud and conceited Emperor was actually strutting around with no clothes on. And my mind went back to the clear logic of that top Maltese jurist who always kept his written arguments very clear, simple and concise.

In matters of gender, however, this logic has been thrown overboard.

Gender is now fluid, we are being told. It is a matter of subjective assessment, of individual feeling, of how one personally identifies. In fact, we are told there are loads of different genders, 74 or more. It is no longer a matter, we are told, for society to establish by laying down procedures for objective assessment. All members of society must now bow down to and respect a person’s individual assessment and gender identity, we are told, and laws are passed to make this obligatory. This is so even to the point that if parents happen to know that a person dating one of their children has had a sex or gender identity change if they were to spill the beans with their own children, they would be breaking the Law.

Forget other fundamental principles of freedom of expression and the duty of care and act as guardians of their children in their best interests and to the best of their ability. The gender law now seeks to override all those other principles, and the parents could technically be fined 5,000 Euros for revealing what they know to their own child about the person they are dating.

So where does the boxing saga fit into all this, you may be wondering?

The International Boxing Association, or IBA, has adopted procedures, just like some other sports associations, like the International Athletics Association, on the basis of safeguarding the health and safety of women boxers and in the interests of fairness by setting a level playing field.

These procedures are based upon the fundamental forensic/scientific chromosome test through spot checks in order to establish the gender of the fighter. Simply put, it is using a gold standard test in science that we are always being told to follow in order to avoid superstition. If the chromosomes are XY, the boxer is deemed to be a male. If they are XX, then she is deemed to be a female.

Now, let’s go back to that introduction up top here that people may find needless or boring. Is this not step two in the assessment procedures, you may ask. Should one not first establish if the boxer has male or female parts? Have we jumped step one? Should a sports association not be requiring that every member submit a certificate following a medical examination identifying the athlete’s gender? Only then, if doubts exist, one could follow up with a blood test sent to a lab to establish chromosomes, right? Should this not be the obvious way forward?

The fact is that the IBA has opted to go straight for the so-called gold standard of the Chomosone test without ever entering into the merits of how an athlete may identify in terms of gender, medical procedures carried out, or what official documentation they may possess or provide.

Now, keep in mind that the IBA is well aware, as we all should be, that in very recent times, some countries have passed different laws relating to the establishment of gender.

In order to retain a level playing field, therefore, any sports association is both morally and legally bound to devise rules that would prevent unfair advantage that may result from, for example, a male athlete utilising his country’s new gender laws to masquerade as a woman, and then qualify for female competitions. In such cases, the best evidence becomes the guiding rule, the procedure to establish fairness and Justice. And the best evidence is the chromosome test.

Our fundamental laws have established another all-important procedure. That a person has a right to appeal from any judicial or quasi-judicial tribunal decision. This is laid down in most constitutions and declarations of fundamental rights. It is also laid down in the world of sport. Any decision can be appealed to the ultimate Court of Appeal in Sport, the Court of Arbitration for Sport, or CAS. We may all have our own legal opinions on any matter. But our entire Justice System and the all-important Rule of Law have been built upon the principle that a matter will ultimately be decided through established judicial procedures. Simple as that!

No persons, physical or juridical, ie companies, committees or associations, have any right to arrogate to themselves the power to decide on any legal issues. If they do so, they are in breach of one of the most fundamental principles of Justice and the Rule of Law and should be held accountable accordingly.

Now concerning the IBA’s rulings, following chromosome tests of 2 boxers, that they were not eligible to participate in women’s events, one boxer from Thailand did not appeal the decision to the CAS. At the same time, the other, from Algeria, initially gave notice of appeal, yet abandoned the appeal by not paying the judicial fees. Therefore at that point, like it or lump it, the rulings of the IBA on the two boxers’ eligibility to participate in women’s events stood. They are what we call Res judicata. That is legal jargon for a final legal decision that can no longer be contested judicially. And they should be respected as such. If they are not, we have anarchy on our hands! And if not anarchy, tyranny, when imposed from above.

The International Olympic Committee, or IOC, saw fit to ignore the well-established judicial procedures in the world of sport and step into the shoes of the ultimate Court of Appeal, the CAS. It decided that it somehow had the right to do so, although it is not a court of appeal. It has political power within its remit of Olympic sports, but it does not have the right. It decided to break with the IBA, to ignore its rulings on the matter, and to make its own rulings.

And how did it set about doing so? Not by going back to basics, taking a leaf out of every sports coach’s book, and adopting the gold standard in determining gender, the chromosome test.

No way! It did so by accepting without question the passport documentation presented by the athletes, listing them both as female.

And there, my friends lies the rub!

This is why this saga is so significant and will have very lasting and far-reaching effects. In doing so, the IOC has taken a political stand rather than an objective legal and, therefore, judicious one. Just follow the reasoning:

The countries that have made gender a fluidic issue based upon subjective assessment and identification happen to be in the minority. Now since we have some countries that are allowing for such subjective gender identification and others not allowing it, but relying on the traditional principle of objective assessment, we cannot have a sports body suddenly taking the side of the former countries, and basing its rules of eligibility on documentation provided to the athlete by those countries.

This matter is regardless of whether the athlete had documentation from the time of birth or at any subsequent time. If all athletes, regardless of the legal regimes in their respective countries, are to be treated fairly and put on a level playing field, then the only standard to determine eligibility in sports is, in fact, the chromosome test.

Back in the good old days, when all countries agreed on matters of gender, a passport would have been sufficient. Not so today!

Keep in mind that this does not apply only to women’s competitions but also to men’s. You may have cases, for example, horseracing and windsurfing, where the jockeys are listed in different categories based on gender, where females, being generally lighter, may have an advantage in speed.

In effect, the IOC has revealed its hand and shown itself to be making decisions on distinctly political agenda grounds, rather than in the interests of the athletes as a whole. This makes it far more serious than the issue of a mere ruling on the eligibility of 2 boxers, which resulted in them both winning gold medals in their respective categories to the detriment of all the other competitors.

The IOC members voting on their eligibility should never have usurped the power of the CAS, the ultimate arbitrator in sport. On that basis it is my legal opinion that regardless of one’s own opinion on the athletes’ eligibility or otherwise, those IOC Committee members should be forced to resign their positions, since they acted ultra virestheir functions.

The main thrust of the argument laid out by the Algerian boxer is that s/he has always been identified as female from birth. But this is precisely why the IOC has bitten off far more than it could chew. Ultimately, it does not matter whether we have a case of an athlete who claims that s/he has always identified as a female or one who has recently identified as such and obtained official documentation to that effect, in line with the legal parameters laid out in that athlete’s gender fluidic country.

AND THE IOC KNOWS THIS!

The IOC knows full well that regardless of the individual facts leading to gender identification of the athletes, if the world of sports is to use the chromosome test to determine eligibility, then the entire decision by a minority of countries changing their gender identification rules would be blown clean out of the water.

So, to repeat that phrase, breaking with standard writing guidelines, THERE, MY FRIENDS, LIES THE RUB!

How is this all going to end?

It is hard to say because, ultimately, political agendas often outweigh Justice’s legal principles. But speaking as a jurist expressing a legal opinion, I cannot see it ending well for the IOC. It has got itself into a very tight corner that it cannot quickly get out of or maintain. The wrestlers would call it an arm lock?

How can it justify its position with all the countries that have not made gender something fluid?

How can it hold its position in the face of women who feel that men masquerading as women are now stealing their trophies and medals and, destroying their sport, and possibly endangering their health?

Do such women athletes have legal recourse against them and sports organisations for misrepresentation and fraud, endangering their health, and possibly for battery? I believe they do.

How can the IOC explain to the Court of Arbitration for Sport that it has arrogated that same Court’s judicial powers and functions to itself?

How could it justify discriminating against the athletes of countries that do not have gender fluidity laws that could be seen as loopholes for some to cheat?

In closing, let us not forget the importance of keeping things simple, and using the first rule of assessment, that of initial physical examination. Do the athletes whose eligibility for women’s competitions is called in question have male organs or not?

This is a very straightforward question. Yes or no?

If they do, then regardless of their respective country’s laws on gender identity, this most obviously gives them a very distinct unfair advantage and creates an unlevel playing field in those competitions.

Suppose some people are caught up in a hysteria of extreme “tolerance” to the point where they ironically refuse to tolerate all those who see it differently and may be negatively impacted by certain decisions. In that case, we have entered the world of the absurd, which we often see played out in drama.

In this case, we would not have art imitating life, but life imitating art; the art of the absurd.

Rodolfo Ragonesi LLD Lawyer and Researcher in
History and International Affairs