The ‘trans law’ has led to a new internal conflict in the coalition government. Promoted by Minister Irene Montero, the text of its draft was quickly nuanced by the PSOE after transcending public opinion. First sliding that the written only contained the version of Podemos, then with the first vice president of the Government, Carmen Calvo, publicly criticizing in a interview with the chain Ser some supposedly unaffordable concepts of this. But, where is the sport in this controversy?
The controversy heats up in the US and the IOC does not react: what to do with trans athletes?
Pedro Cifuentes Alberto Ramirez
The situation of trans athletes is the great debate looming in world sport. The International Olympic Committee itself will reassess its criteria after the Tokyo Olympics. In the draft prepared by the Ministry of Equality, article 39 is dedicated to “to the right to gender identity in sports practices ”. This text regulates the participation of trans people in practices, events and competitions “that will be carried out according to their registered sex, without in any case being able to carry out tests to verify the sex. ”
Irene Montero, minister of equality, in a file image. (Eph)
“As a lawyer, the first thing to send is a message of caution. It is not even a blueprint, this is a draft, “he assures as soon as he begins his conversation with this newspaper. Reyes Bellver, Partner of Bellver Sports Legal Boutique, who wonders what agents in the sports world have been used to prepare the text: “What is missing is that they meet with specialists in the sport. Sport is a very specific area. There is a sensitive issue on the table that must be treated with care, but when we talk about competition the physical aspect is important ”.
Bellver is surprised by the debate generated by the draft in sports, since “this is not a new issue, there are cases in different sports from many years ago.” “It is a debate that is difficult to regulate and there are still years to go”warns the lawyer. It is true that international organizations have not yet found a formula to combine individual freedoms, as well as non-discrimination, of trans athletes with the principles of equality in sport and professional competition: “This affects so many different countries with different realities and cultures that makes it very complicated. The issue collides with Human Rights, but also with competition, there is the difficulty ”.
The legal panorama of sport is pending the resolution of the case of Caster Semenya, a female athlete who presented testosterone values above the common and that, according to the International Athletics Federation, resulted in an unfair physical superiority for the rest of her rivals. The South African, after receiving a setback from the CAS, took her case to the European Court of Human Rights, which has not yet ruled. “They only talk about trans and sports, but also there is the issue of intersex peopleI don’t know how they will approach this situation ”, reflects Bellver on the draft.
Caster Semenya, in a file image. (Eph)
A “necessary” law, but vague in professional sports
“This law is necessary in the sense that it adapts to international organizations. It complies with the standards that were lacking in Spain and that were met in other countries. But when you touch other areas such as sports, you have to see what specifications there are. It is not the same as any other field, it has an obvious physical implication ”, argues the president of Leadership Woman Football. The Higher Sports Council is silent after the publication of the draft.
“The text is designed less for the competition and more for the discriminations that unfortunately occur in the social part, in recreational sports,” insists Bellver. One of the most controversial points of the article of the draft of the ‘trans law’ states that in sports facilities segregated by sex, trans people will be guaranteed access and use of the facilities corresponding to their gender identity: “If the law protects you Without verification of sex, you will be able to enter one locker room or another, even if your physical appearance is different. This is going to clash culturally and socially in our country, but at some point modifications have to be made to adapt to non-discriminatory principles. ”
The Argentine transgender player Mara Gómez. (Eph)
The draft defines that a trans person is “anyone whose gender identity does not correspond to the sex assigned at birth.” This has led to harsh criticism from various feminist sectors of the country and also from the government itself. “I am fundamentally concerned that gender can be chosen, without more than mere will or desire, putting at risk the identity criteria of the rest of 47 million Spaniards,” said Carmen Calvo in the aforementioned interview. Asked about it, Bellver recalls that “The first time that gender identity was recognized as a personality right dates back to a pioneering resolution on discrimination against transsexuals of the European Parliament of September 12, 1989 ”.
A more specific text is needed to deal with sport
Apart from the social controversy of the draft, the text leaves too many questions about its application to sport. “Either you do a much more exhaustive regulation, One sport is not the same as another, one modality from another, you seek consensus, speak with specialists, with sports organizations, invest time to do it as completely as possible, or directly you take the sport out of the law and leave it to the specific laws of the sport, and thus you avoid that there is an overregulation “, exposes the lawyer.
In Spain, there is still a disparity of criteria between autonomous communities. Some do have LGTBI + laws, even some of them guaranteeing the right to gender self-determination, but others do not have legislation in this regard: “The most important thing to compete is to be registered, to have what we could call a license, if this it could be a little uniform throughout the country it would be all very simple. (…) It is still very dispersed, the communities do not have common regulations, Today one can register as a trans person in one, but not in another. These things cannot happen. It cannot be that the criteria to compete are different in the same country “.
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“In sport there must be some caveat. It has to be in line with respect for Human Rights, and always taking care of discrimination, but at the same time controlling a fair competition. This is the difficult part, ”says Bellver. To this day, scientific criteria have not yet been able to determine what this line would be. The main sports organizations advocate testosterone parameters, although different experts warn that should not be the only issue to consider.
International sports organizations prevail
The last point of this article 39 of the draft ensures that all its content “is understood without prejudice to the timely compliance with the rules that govern international competitions.” “This would save that there was no discrepancy, if the IOC says otherwise, you have to comply. Sport has its own rules, it affects different areas, something as sensitive as this issue cannot be generalized ”, explains the lawyer. That is why, if the ‘trans law’ goes ahead – despite the fact that the numerous modifications that the text will undergo is already an open secret – a trans athlete could be a Spanish champion of a sport modality, but not be recognized or have the possibility of competing at an international level.
“We have been waiting for the sports law to be modified, which dates from 1990, for many years. It has to be adapted in terms of gender equality, there is a blueprint, but it is still on the table. It would be necessary to modify the norms that we already have, instead of creating more, more and more “, says Bellver. The debate has only just begun.