1. Introduction
Feminist and queer investigations of international law have rarely focused on sports as an arena in which global norms on gender are produced.Footnote 1 This is the case even though international sports are highly gendered. Countless women athletes competing internationally have openly talked about the sexism that they experience, often compounded by instances of racism.Footnote 2 Likewise, homophobic attacks remain common in many sporting structures, particularly in men’s sports,Footnote 3 and exclusionary politics are increasingly visible in debates on sex segregation in sports.Footnote 4 Gender thus matters in sports – as it matters in any part of life – but how gender matters in sports also depends on the rules that govern sports. International sports federations (IFs) are core regulators of gender norms in sports as they usually organize international tournaments in collaboration with host countries. Yet, the power of IFs to influence global gender hierarchies has received limited attention from international lawyers.
This article seeks to fill the research gap by analysing how IFs act as international lawmakers, with a specific focus on their powers to shape global norms on gender. It builds on scholarship that acknowledges the normative power of IFs in international, transnational, and global law, despite their status as non-state actors, primarily private non-profit associations.Footnote 5 Instead of analysing the formal status of IFs as subjects of international law, I will explore the material force and discursive power that IFs yield in practice. Hence, how do IFs de facto shape gender norms globally?
Asking this question comes at a time when the power of IFs to produce hegemonic gender norms is increasingly debated. The Semenya case, as analysed in this article, has made the role of IFs in fostering exclusionary gender norms evident.Footnote 6 Similarly, debates concerning LGBTFootnote 7 rights at the 2022 FIFA (Men’s) World Cup in Qatar have surfaced questions on the legal responsibility of IFs to oppose homo- and transphobia.Footnote 8 Several scholars, including Krech and Patel, have started to research the legal authority of IFs to regulate gender and other inequalities,Footnote 9 complementing social science scholarship which has long drawn attention to the power of sports in normalizing gender hierarchies.Footnote 10 As Duval argues, ‘it is high time that feminist legal scholars engage with private regulators like FIFA’.Footnote 11 By subjecting IFs to a feminist critique that is both intersectional and queer, I build upon previous research to offer an analysis that takes into account different axes of gender relations shaped by IFs.
Many aspects of international sports are highly gendered, including stark differences in funding and media coverage between men’s and women’s sports, as well as men’s overrepresentation in the governance and industry of sports.Footnote 12 Recent scandals have further highlighted the prevalence of sexual violence and harassment within international sports.Footnote 13 The regulations of IFs play a crucial role in governing these gendered aspects, such as rules covering funding, media representation, employment practices and sexual harassment. While I could therefore apply a queer-feminist analysis to any of these rules, this article focuses specifically on international regulations that directly impact athletes’ behaviours and bodies on the pitch. Given the popularity of mega sporting events – the 2022 FIFA Men’s World Cup was the most widely watched event in historyFootnote 14 – these rules can significantly influence public perceptions of appropriate gender behaviour across the globe.
By analysing selected international sporting rules, I will demonstrate that IFs are de facto international lawmakers whose rules have discursive and material force to (re)produce hegemonic gender norms rooted in cis-hetero-sexism. They mostly operate on the premise of a binary gender model, wherein women and men are depicted as the only two gender categories, placed in a hierarchical and complementary relationship. The assumption that all people are heterosexual, expressed in the term heteronormativity, is part of the gender binary. Some of the examined rules also reflect cisnormativity, presupposing that individuals are cisgender, which is usually presented as being the opposite of transgender and means that people identify with the gender that was assigned to them at birth. Additionally, I will examine how sporting rules reproduce endosexnormativity, assuming all people to be endosex, a term used to refer to non-intersex persons as their sex characteristics align with normative medical definitions of binary sex. The analysis will further draw on intersectionality to highlight how whiteness and Eurocentrism create racialized exclusions that intersect with gender hierarchies in sports.
I advance my argument by use of four illustrations. The first is the debates surrounding LGBT rights and the politics of location at the 2022 FIFA (Men’s) World Cup in Qatar discussed in Section 2. This allows me to establish general principles that guide my analysis of IFs in the following sections. The second example, discussed in Section 3, examines rules on the participation of transgender persons in international rugby competitions and their impact on local policies in England. The third example, in Section 4, investigates IFs’ clothing regulations, including bans on Islamic veils and requirements for body-fit attire, revealing gendered and racialized body norms. Section 5, on the Semenya case, continues my analysis of the intersection of race and gender norms in sports but also shows that the law-making power of IFs is not unlimited. Finally, in Section 6, I will conclude by discussing the significance of analysing IFs as non-state international lawmakers for advancing queer-feminist scholarship in international law.
2. The 2022 FIFA (Men’s) World Cup: LGBT rights and politics of location
Analysing the debates on LGBT rights in the context of the 2022 FIFA (Men’s) World Cup provides an excellent case study to establish general principles that direct my research on international sports. Firstly, it will show how liberal equality strategies prioritizing politics of visibility directed to the outside world have emerged as the predominant approach to address injustices in international sports. Secondly, it will demonstrate how global power inequalities as captured by the concepts of Eurocentrism, homonationalism and homocapitalism have played a role in the mobilization of LGBT rights during the Men’s World Cup. These two takeaways form the basis for my subsequent analysis in which I aim to turn the gaze inward on the rules of IFs and practice a critical reflexive feminist politics of location that considers how my own positionality and those of IFs matter for the production of gender norms in sports and knowledge thereof.
In terms of legal personality, FIFA is like many IFs currently registered as a non-commercial association in Switzerland.Footnote 15 Despite its non-profit status, FIFA generated USD 7.57 billion in revenue in the cycle of 2019–2022, making it comparable to a large multinational company.Footnote 16 This has made critics argue that FIFA, along with other major IFs, should be treated as tax-paying corporations rather than non-profit organizations, but Switzerland has so far rejected this approach.Footnote 17 By subjecting IFs to corporate taxes, Switzerland would risk that IFs move elsewhere, such as Gulf states which increasingly lobby IFs.
The 2022 FIFA Men’s World Cup was not the first international sports event that stirred up debates on sexual orientation. For example, LGBT rights were also brought up in respect of the 2018 FIFA Men’s World Cup in Russia and the 2014 Olympic Games in Russia, due to Russia’s so-called gay propaganda laws.Footnote 18 In Qatar, the topic of LGBT rights came under scrutiny mainly because Qatar’s penal code criminalizes same-sex relations, specifically those between men, with sentences of up to seven years of imprisonment.Footnote 19 Laws protecting ‘public morals’, such as Law No. 17 of 2002 on Protection of Community, are also used to detain persons with non-normative sexual orientations and gender identities, such as trans persons as well as gay and lesbian individuals. Human rights organizations have further reported that detained queer individuals often experience abuse and torture by Qatari security forces.Footnote 20
The debates regarding FIFA’s role in protecting LGBT rights in Qatar emerged quickly after the awarding of hosting rights to Qatar in 2010.Footnote 21 FIFA consequently raised concerns about the criminalization of LGBT persons in negotiations with Qatar before the World Cup. In response, Qatar indicated that laws on homosexuality would not be enforced during the World Cup and confirmed that the display of rainbow flags would be permitted.Footnote 22
Nevertheless, rainbow flags were one of the most contentious issues debated during the 2022 Men’s World Cup. Not only did local security forces confiscate items with rainbow symbols on several instances,Footnote 23 but FIFA made headlines when it announced that wearing rainbow armbands during matches would lead to sanctions against the players concerned, such as the receiving of a yellow card. This was directed at the captains of seven European teams who had indicated that they were planning to wear armbands in support of the OneLove campaign, an initiative taking a stance against discrimination in football created by the Dutch Football Association.Footnote 24 FIFA’s decision to sanction the OneLove armbands was based on its Equipment Regulations stating that the captains must wear armbands provided by FIFA.Footnote 25 In addition, the Regulations hold that playing kits must not include political, religious, or personal slogans.Footnote 26 Another restriction was imposed by FIFA on the Belgium national team, which needed to remove the word LOVE and rainbow colours from the collar of its uniforms, as these signalled a commercial link with the Tomorrowland festival.Footnote 27
The banning of rainbow symbols from uniforms led to an outcry by the respective European teams, their football federations, their fans, and some media outlets.Footnote 28 I find that unpacking these reactions is instructive for understanding different approaches to equality politics in sports. On the one hand, queer Qatari nationals, such as Naser Mohamed currently living in the United States, called on participating football teams to contest homophobic politics in Qatar to potentially improve the lived realities of queer communities in Qatar.Footnote 29 From this perspective, the captains of the seven European teams – and their fans – showed solidarity by protesting structural gender inequalities that queer communities face. Given that the fight for equality should not fall on the shoulders of those who experience discrimination and exclusion, protest against queerphobia in sports by people in privileged positions, such as the European captains, is a welcome step.
On the other hand, I found it striking that the calls for queer solidarity emerged when the seven European teams played abroad in Qatar and not when playing in their home country or Europe.Footnote 30 Knowing that homophobia remains deeply enshrined in most men’s football structures in Europe such as elsewhere,Footnote 31 I could not help but think about Puar’s conceptualization of ‘homonationalism’.Footnote 32 I wondered whether the decision of the seven European national teams to support the OneLove campaign was (solely) a sign of solidarity with queer populations in Qatar and elsewhere, or whether it was also shaped by global power politics.
According to Puar, homonationalism describes the process by which states from the Global North embrace certain gay and lesbian individuals, notably those with white and class privileges, as a means to present themselves as culturally superior to other states, specifically states from the Global South and Islamic states. This consequently serves as a justification for their nationalist and sometimes Islamophobic politics whereby the exclusion of foreigners, non-white individuals, and people with certain religions is legitimized in the name of protecting the state’s ‘own’ LGB(T) citizens.Footnote 33 Sykes has analysed different faces of homonationalism and its entanglement with colonialities in several mega sporting events, such as the 2014 Sochi Olympic Games and the 2010 Vancouver Olympics.Footnote 34 One issue that Sykes observes is that the ‘coming-out’ of certain gay and lesbian athletes increasingly brings ‘a sense of patriotism or gay pride in the public imagination of a nation as a tolerant, liberal, multicultural or “Western” democracy’.Footnote 35
My inclination to associate the LGBT protest at the 2020 Men’s World Cup with the concept of homonationalism stems from the fact that European teams and their fans raised the issue of queerphobia specifically when playing outside of Europe. This gave the impression that the protest was directed towards external structures, namely Qatar’s laws and norms, which can foster a demonization of others instead of leading to an investigation of how homophobia and particularly transphobia are entrenched within the very sporting structures in which European players are invested. It led to an externalization of the issue of queerphobia to the location of the Middle East, reflecting Rao’s claim that mainstream LGBT politics often try to locate homophobia in specific places, typically places in the Global South, which become envisioned as static localities disconnected from broader global processes.Footnote 36
The display of rainbow flags as examples of politics of visibility supports this approach of externalizing the commitment to LGBT rights, instead of turning the gaze on internal structures. Politics of visibility are enshrined in liberal approaches to equality, which presume that once all groups of people are represented within a given system, inequality will vanish. Yet, these approaches have their limits in transforming the system creating inequality in the first place, since the representation of queer individuals, such as through rainbow flags, does not necessarily reduce the relevance of gender and sexual orientation as structuring principle of hierarchy in football.Footnote 37 As Bury notices in an analysis of equality politics in English football, politics of visibility rarely results in a deep investigation of power inequalities within institutions but the approach mostly ‘constitutes a visual response to critical voices from the public’.Footnote 38
Considering that the FIFA Men’s World Cup is the most profitable sporting event worldwide, the display of rainbow colours must also be understood in relation to ‘rainbow capitalism’ or ‘homocapitalism’. These concepts reflect the strategy of companies, banks and other profit-driven institutions like large IFs (despite their formal status as non-commercial organizations) to embrace LGBT persons as part of their commercial strategy to sell a product, such as football.Footnote 39 The critique of this strategy is that it flattens the political demands and priorities of queer communities in exchange for a commercialization of their identity, depoliticizing their struggles against real material inequalities.Footnote 40 Furthermore, Rao reveals how homocapitalism enables institutions to deflect from the adverse economic impacts of their neoliberal and exploitative policies on queer individuals and marginalized communities, by attributing queerphobia primarily to cultural stigma rather than economic inequality.Footnote 41
Indeed, financial incentives played a role in the protest against FIFA’s ban on the OneLove Armband. This is evident from the actions taken by REWE, one of Germany’s largest supermarket chains, which terminated its sponsorship agreement with the German football association following FIFA’s announcement of the armband’s ban. The CEO of REWE justified this decision by holding that ‘football means, among other things, fair play, tolerance and solidarity – we also uphold these values. We stand for diversity – and football is diversity too’.Footnote 42 Likewise, Adidas, another sponsor of the German national team, expressed apprehension regarding FIFA’s decision.Footnote 43 The commercialization of LGBT politics was further highlighted by the rainbow colours displayed on Belgium’s uniforms, which, as mentioned above, were the result of a sponsorship agreement with the Tomorrowland festival.Footnote 44
The connection between sponsorship deals and rainbow displays at the FIFA Men’s World Cup makes me wonder who was served by the protest of wearing rainbow armbands by the seven European captains. Was the aim of the protest to improve the lived realities of communities with non-normative sexual orientations and gender identities in Qatar and elsewhere? Or was it (also) aimed at gaining public popularity and sponsorship deals for the teams and individual players by fostering an LGBT-friendly image?
Whereas Naser Mohamed, the Qatari national living in the United States, has called on teams and fans to protest against the criminalization of queer communities in Qatar, there are also queer individuals from Qatar and other Gulf states who have criticized the politics of visibility pushed for by Western football teams, fans, and media outlets.Footnote 45 As discussed by Jain,Footnote 46 the latter group has noted that enhancing discussions on non-normative sexualities and gender behaviour in the region can provoke a social backlash that ends up worsening the situation of concerned communities, especially when the debates are framed in line with the Westernized language of ‘LGBT’ rights. An anonymous writer underlines the negative repercussions of the politics of visibility exercised during the 2022 FIFA Men’s World Cup by stating that ‘[w]e now have to try to salvage the safe spaces we used to have before Western queer iconography outed our identities’.Footnote 47
The claim that the increased spotlight on queer communities in Qatar has reinforced their surveillance shows that rendering marginalized groups visible can increase their experiences of violence. The limits of the politics of visibility have been pointed out by many activists and scholars, including Kapur who argues that:
the assertion of queer selfhood through visibility may involve great losses, ranging from familial and social rejection and ostracism, to being deprived of home, livelihood and services, to discrimination and humiliation, to violent assault and, sometimes, even death at the hands of the bigoted and/or ignorant.Footnote 48
Kapur’s quote highlights that whether one can bear the costs of becoming visible in the public depends also on how queerphobia intersects with other structural inequalities based on race, class and religion.Footnote 49 By focusing mostly on one identity category, such as sexual orientation, politics of visibility rarely manage to grasp the complexity of social relations that create structural inequalities, which, in Qatar, include relations based on migration status, class and religion. In an analysis of homonationalism at the Sochi Olympics and Vancouver Olympics, Sykes equally found that LGBT politics were mobilized as single-axis issues, unable to include anti-colonial projects, such as by also contesting Islamophobia and supporting indigenous struggles.Footnote 50 The misrepresentation of struggles and political priorities of queer communities in Qatar by European protestors has led a Qatari community member to describe these protests as ‘gestural and performative activism produced by the West, for the West’.Footnote 51
This quote underscores that ‘politics of location’ matter in international sports.Footnote 52 As Madhok states, a critical reflexive feminist politics of location interrogates the locations from which knowledge and demands for rights are produced.Footnote 53 Engaging in a critical reflexive feminist politics of location means for me that my very own social and academic locations as a white queer-feminist international lawyer socialized and residing in ‘the West’ influence my views on sporting rules in this article. Following Cossman, I consider ‘location’ not a fixed or static point, but rather a ‘temporality of struggle’,Footnote 54 in which the voicing of certain perspectives and political priorities is shaped by my personal relations to ‘the dominant’, epitomized as IFs in this article.
In addition to recognizing my own embeddedness in the hierarchies of knowledge production on gender in sports, practising politics of location also makes me wonder how spatial relations between other sporting actors matter in debates on international sporting rules. My analysis of the 2022 FIFA Men’s World Cup precisely showed that international sports are influenced by global politics, as highlighted by the role of homonationalism and homocapitalism in the debates on rainbow armbands. Hence, Madhok’s conceptualization of a critical reflexive feminist politics of location prompts me to also interrogate how colonialities, racism and the North/South hierarchy influence the creation of gendered international sporting rules.
Another point that I take away from my analysis of the 2022 FIFA Men’s World Cup is that politics of visibility, like the use of rainbow flags, have become the predominant way to show a commitment to equality in international sports. These approaches tend to frame IFs as external benevolent entities and potential ‘saviours’ of gender-oppressed communities, without generating a thorough investigation into internal sporting structures that create inequalities. This is why, in the following sections, I will turn the gaze inward on IFs and analyse how their own rules (re)produce cis-hetero-sexism and racialized understandings of femininity and masculinity.
3. Trans-exclusionary regulations in international rugby
After having established basic principles influencing my research on sports, I will analyse how IFs’ rules governing the participation of transgender women in sports competitions reinforce dominant gender norms. This will highlight IFs’ material force and discursive power in setting societal and legal definitions of who is counted as a woman for specific purposes.
The rules under investigation in this section, namely rules on trans athletes, must be distinguished from those concerning intersex athletes, which are discussed when analysing the Semenya case in Section 4. In this section, I will focus on the discipline of rugby and use England as my case study, since living in England provides me with access to local sporting discourses and rugby is a popular game in England. Yet, my narrow focus on England means that the insights gained from this study are not directly transferable to other contexts. The purpose of this analysis is therefore to demonstrate that IFs’ rules can shape gender relations in localized settings, without presuming that the ways they shape gender relations are universally the same.
World Rugby, whose headquarters are in Dublin, was one of the first IFs that adopted a quasi-ban of trans women from women’s sports competitions.Footnote 55 In 2021, it decided to require trans women and girls to start suppressing their natural testosterone production before the start of puberty or the age of 12 if they wanted to compete in women’s tournaments.Footnote 56 These rules seem to have influenced other international and national rules, since the second major international rugby federation, the International Rugby League (IRL) with its headquarters in London, decided in 2022 to ban all trans women categorically from women’s competitions until a formal policy is developed.Footnote 57 In turn, the two English rugby federations, the Rugby Football Union and Rugby Football League, equally adopted a full ban of trans women from women’s competitions in 2022.Footnote 58
While the World Rugby rules provide in theory a possibility for trans women to participate in women’s competition, the rules of the IRL and the two English rugby federations categorically deny this possibility to all trans women. However, in practice, the rules of World Rugby also impose a de facto ban on trans women from women’s competitions since it is quasi-impossible to start hormone treatment before the onset of puberty. It is rare that trans girls out themselves before puberty, especially due to the severe social repercussions and transphobic reactions that an outing usually entails. Being trans is also criminalized in several countries,Footnote 59 which means that the World Rugby rules create exclusions of all trans persons originating from those countries.
Moreover, trans girls who do come out before 12 years old are unlikely to have access to hormone treatment as trans-specific health care remains highly inaccessible and precarious in most states around the world, especially for children.Footnote 60 For instance, the National Health Service of England decided to suspend all puberty blockers for children in 2024, arguing that ‘there is not enough evidence to support the safety or clinical effectiveness’.Footnote 61 This decision contravenes the guidance of specialized medical associations, such as the World Professional Association for Transgender Health, and the wishes of trans youth and most of their parents.Footnote 62 While more could be said about access to gender affirmation care,Footnote 63 this example shows how precarious or unavailable access to hormone therapy is for youth.
Hence, if accessing hormone treatment before the age of 12 is in practice mostly impossible, then World Rugby regulations amount to a de facto ban of trans women from women’s competitions, like the rules of the IRL and the English rugby federations. This ban seems to contradict the guidance on trans athletes produced by the International Olympic Committee (IOC) in 2021. The IOC Framework on Fairness, Inclusion and Non-Discrimination on the Basis of Gender Identity and Sex Variations holds that eligibility criteria in sports must not systematically exclude trans athletes due to their gender identity,Footnote 64 but must be based on robust and peer-reviewed research.Footnote 65 Eligibility criteria are only legitimate if they aim to ensure that no athlete has a disproportionate competitive advantage, prevent safety risks or prevent cis men from fraudulently claiming a female gender identity to enter a specific category.Footnote 66 The criteria excluding trans players must not be based on an ‘unverified, alleged or perceived unfair competitive advantage’.Footnote 67
Based on the IOC Framework, it seems rather unjustifiable to categorically ban all trans women from women’s rugby competitions in the name of ‘fairness’ or ‘safety’, no matter their size, weight, or athletic performance. Nevertheless, the IOC has no formal authority over the rules of World Rugby and other IFs within the Olympic movement since IFs are tasked with developing and enforcing rules for each game.Footnote 68 Just as the IOC has no binding authority over the rules applied by IFs, IFs have limited formal control over the rules used by their regional and national member federations. Nevertheless, the rules on trans athletes in rugby are insightful for understanding how IFs and local sporting bodies informally influence each other in their norm-setting.
The fact that both English rugby federations refer to the guidance of World Rugby or the IRL in their rules on trans athletes demonstrates how influental IFs are over their member federations.Footnote 69 National federations have indeed a material incentive to adhere to the rules on trans athletes applied by their respective IF, as this prevents them from investing in athletes who get disqualified once reaching the international level.Footnote 70 This dynamic shows that IFs’ rules often trickle down to their member federations, even though they formally apply only to competitions organized by these international federations or when world records are counted. Member federations often adopt the rules of their respective IF, since IFs are regularly considered the authoritative regulators in their discipline or because regional and national federations lack resources and expertise to develop their own regulations. At times, member federations may even face consequences should they not adhere to decisions made by IFs, such as when failing to enforce doping-related sanctions against athletes.Footnote 71 The pyramidic structure of sports governance thus fosters the normative power of IFs to shape sporting norms across the world.
However, the story of international rules on trans athletes in rugby trickling down to England might be too simplistic. When looking at how the rules of World Rugby were created, it seems that the norm dissemination was inverted, with English norms and discourses on trans rights shaping the international rules. English rugby federations continue to yield significant power within the two international rugby federations,Footnote 72 and the consultative workshop that preceded the adoption of World Rugby’s transgender policy took place in London. A clear majority of the participants in the workshop came from the United Kingdom and all other participants, except for two persons, were from other states in the Global North.Footnote 73 The workshop was criticized for not ensuring meaningful participation of trans players and provided a platform to Fair Play for Women, a British civil society organization strongly lobbying against the inclusion of trans women in women’s sports.Footnote 74
Hence, it seems that the rules on trans players by World Rugby have been influenced by local English discourses in which a high level of transphobia has become normalized.Footnote 75 This norm dissemination process is in line with the colonial history of rugby, which originated among middle- and upper-class young men during Victorian times in England and was later made popular in the British Empire. My current academic location, the University of Cambridge, was one of the elite educational institutions where official rugby rules were initially developed to be later diffused to British colonies.Footnote 76
The story of rules on trans athletes in rugby thus shows the continuation of colonial legacies in international sports. Exclusionary norms on trans rights moved from the specific location of England to World Rugby to become disseminated globally. The norm dissemination process as infused with Eurocentrism and colonial legacies is not an exception because norms emanating from European contexts get disproportionately reflected in international sports as many IFs are located in Europe. This underscores once more that politics of locations matter in the dissemination of hegemonic gender norms by IFs.
In addition to showing the inter-relationship between the rules of IFs and those of national federations, the exclusion of trans persons from rugby competitions illustrates that sporting rules can have broader ramifications in sports and beyond. An English civil society organization stresses that rules at the elite level have direct impact on local sporting structures, such as local clubs and public playgrounds. It holds that ‘[t]hese policies send a message to trans kids that they don’t deserve the same opportunities as their friends, and to all kids that they have to present a certain way to be respected for who they are in a sporting environment’.Footnote 77 This statement underscores the discursive power of IFs to reproduce cisnormativity, which normalizes the exclusion of trans adults and children from everyday sporting practices.Footnote 78
This discursive power of international sporting rules, such as put forward by World Rugby, to foster trans-exclusionary practices reaches beyond the realm of sports. In the United Kingdom, they have likely left traces in state laws on the rights of trans persons. This was seen in the debates concerning the Gender Recognition Reform (Scotland) Bill, which aimed to simplify the procedure for trans persons to change the legal gender on official documents in Scotland.Footnote 79 The legislators in charge, the Scottish Parliament, adopted the Bill in 2022, but the Secretary of State for Scotland, who is a member of the UK government, prevented it from proceeding to the last stage of the UK’s legislative process, the granting of royal assent. By using Section 35 of the Scotland Act 1998 for the first time in history, the Secretary of State averted the Bill to become binding law.Footnote 80 A judicial review challenging the Secretary of State’s order was unsuccessful.Footnote 81
Sports played a role in the legal debates regarding the Gender Recognition Reform (Scotland) Bill since the UK government mobilized the possibility that trans women participate in women’s sports as a justification to block the Bill. The Secretary of State held in its Order to invoke Section 35 of the Scotland Act 1998 that the Bill could jeopardize the functioning of sex-segregated competitive sports by enhancing the risks that people fraudulently change their legal gender.Footnote 82 This claim is legally doubtful as the Bill would not change any laws that regulate the participation of trans persons in sports. Making it easier for people to change their legal gender marker on official documents does neither affect Section 195 of the Equality Act 2010 nor Section 19 of the Gender Recognition Act 2004, which both allow the exclusion of trans persons from single-sex sports to ensure ‘fair competition’ or ‘the safety of competitors’.Footnote 83 Yet, these legal technicalities were ignored by the Secretary of State who framed trans women as a ‘threat’ to women’s sports, perpetuating the same narrative as World Rugby.Footnote 84
There is certainly not a clear causal link between the adoption of trans-exclusionary rules like those of World Rugby and state laws, such as the blocking of the Gender Recognition Reform (Scotland) Bill by the UK government. However, IFs’ rules on the participation of trans athletes can discursively normalize the exclusion of trans individuals from social activities and spaces, in addition to shaping relevant norms within their national member organizations. Even though IFs’ rules formally apply only in international events and when world records are counted, they influence the transnational circulation of norms governing the social and legal acceptance of trans persons, exemplifying that IFs are part of the de facto international lawmakers that shape global gender norms.
4. Uniform rules in sports and hegemonic gender norms
Clothing regulations in international sports competitions are another set of rules that highlight the normative power of IFs to influence hegemonic gender norms. Many examples could be discussed to show the sexualization and objectification of women’s bodies as well as the construction of hegemonic masculinity through clothing regulations. These include the US track and field uniforms designed by Nike for the 2024 Olympic Games in Paris which included a high-cut bikini line for women athletes, making them show significantly more skin than men athletes.Footnote 85 Or I could discuss the heteronormativity reflected in ice dancing rules, which prescribe women to wear a ‘modest’ and ‘dignified’ skirt and men to wear trousers in pair dances.Footnote 86 Similarly, I could analyse the elitist and white gender norms underpinning tennis regulations by discussing the banning of Serena William’s ‘catsuit’, a full-body tennis suit designed to avoid the creation of blood clots, in the 2018 French Open.Footnote 87
Yet, I focus in this article on two forms of clothing regulations, namely Islamic veil bans in sports and bikini requirements for women beach handball players. I selected these examples to illustrate that sporting norms are not only shaped by cis-hetero-sexism but also influenced by whiteness and racialized body norms. They further reveal the limits of replacing sports regulations with state law to advance equality and show how persistent IFs are in enforcing the gender binary by making a categorical difference between women and men athletes.
Until very recently, many of the largest IFs prohibited the wearing of a headcover which often led to the exclusion of Muslim women from sports competitions. For instance, the Iranian women’s football team was disqualified from a qualifying game for the 2012 Olympics because players wore hijabs, which violated FIFA’s equipment rules that prohibited headgear for safety reasons.Footnote 88 Similarly, at the time of the 2014 Asian Basketball Games, the International Basketball Federation (FIBA) based in Switzerland prohibited the wearing of headgear during its tournaments as this ‘may cause injury to other players’.Footnote 89 This headgear rule led to the withdrawal of the Qatari women’s national team from the Asian Games, since many of the Qatari players wore a hijab,Footnote 90 and two Sikh men were prevented from wearing their turbans during the tournament.Footnote 91
Whilst being neutrally formulated, FIFA’s and FIBA’s rules prohibiting the wearing of headgear can be seen as indirect discrimination based on religion and gender. By resulting in the exclusion of Muslim women and Sikh men, they reproduced racialized understandings of femininity and masculinity, privileging athletes of other religions, particularly Christians, who have fewer requirements for religious dress, and atheist or agnostic players. They further ignored the fact that headgears, including hijabs and turbans, are part of the regular sporting attire of many religious communities all around the world without creating any safety risks. As Hamzeh points out, the classification of hijabs as safety hazards in sports reflects a ‘medicalized racial logic deemed the hijab, dangerous and almost indicative of disease’.Footnote 92 It perpetuates a patronizing and colonialist narrative that Muslim women must be protected and saved, which has become even more prevalent since the War on Terror.Footnote 93
I find the exclusion of the Qatari basketball team and the Iranian football team based on FIFA’s and FIBA’s hijab bans specifically interesting considering the debates surrounding the 2022 FIFA Men’s World Cup in Qatar. As analysed above, in 2022, the public focus rested on understanding the responsibility of FIFA, a Switzerland-based IF, in protecting individuals from state norms and practices in Qatar, such as the criminalization of queer populations. Yet, the prohibition of wearing a veil by FIFA and FIBA shows that it is sometimes the rules of these Europe-based IFs themselves that create gendered, racialized, and religion-based exclusions. Hence, this illustrates the misconception of viewing IFs always as benevolent external entities with a responsibility to ‘save’ certain communities from gender-oppressive state norms, since, in these cases, it was IFs’ rules that led to exclusions.Footnote 94
After extensive athlete activism, FIFA and FIBA have like most other international federations gotten rid of their headgear prohibitions.Footnote 95 However, some national sports federations continue to ban Islamic veils. One example is the French Football Association, which is a member federation of FIFA and which won a case confirming its right to prevent players from wearing a hijab at the French Conseil d’État in 2023.Footnote 96 This case shows that state bodies do not necessarily produce less gendered and racialized norms than sports federations. Instead, French legislators, executive bodies, and courts as well as the ECtHR have all upheld headscarf bans in the context of sports.
For instance, in the name of upholding laïcité, the French Ministry for Sports prohibited French athletes from wearing an Islamic veil during the 2024 Olympic Games in Paris, even though athletes from other states were allowed to do so.Footnote 97 Similarly, in 2022, the Conseil d’Etat relied on the French law of ensuring laïcité to uphold an order against the city of Grenoble, which prevented the city from explicitly authorizing the wearing of a burkini in public pools.Footnote 98 Before that, the ECtHR allowed France to prohibit teenage girls from wearing a headscarf during physical education classes in Dogru v. France (2008) and Kervanci v. France (2008).Footnote 99 As criticized by many scholars, such as Kapur and Mahmood, this caselaw and the underlying French legislation and executive decrees perpetuate religious and race biases that reflect Christian majoritarianism.Footnote 100
The example of Islamic veil bans therefore shows that replacing private sports federations as main regulators of sports with state bodies will not necessarily prevent gender- and race-based exclusions from sports. Instead, state bodies in France continue to implement the exclusionary veil ban in sports while IFs have largely eliminated it. Nevertheless, despite the formal rejection of headgear bans by IFs, many IFs have not formally amended their official rules, which means that their regulations rarely explicitly hold that veils are permitted. Instead, athletes must often go through a special exemption procedure to be allowed to wear them.
For example, a representative of the International Volleyball Federation (FIVB) has pointed out to me that the federation permits several variations of uniforms, including the wearing of headscarves, long-sleeve shirts, and long pants. The representative thus described the federation as ‘culturally and religiously inclusive’,Footnote 101 a reference that implies that non-veiled individuals are considered as the norm in which others are ‘included’. In addition, the official written FIVB Event Regulations for volleyball hold that players must wear shorts and body-tight short-sleeve shirts or tank tops. They further require women to wear shorts that are shorter than those for men, showing how rules often perpetuate hetero-sexism by sexualizing women’s bodies.Footnote 102 If players want to deviate from these standard uniform styles laid out in the FIVB Event Regulations, they have to ask for an exemption, since ‘variations to player uniforms to accommodate religious and/or cultural customs are granted on a case-by-case basis’.Footnote 103
Thus the FIVB rules continue to treat bodyfit shorts and shirts in competitions as the status quo, while any other clothing, such as veils, long pants, or loose uniforms, is treated as the exception. The case-by-case procedure through which permission to wear ‘alternative’ clothes is granted continues the ‘othering’ of women who wear a veil or full body coverage, accommodating their uniforms as ‘exception’ to ‘the norm’.
Another example that shows how IFs’ clothing rules create gendered and racialized exclusions was the fine imposed on the Norwegian women’s beach handball team for violating the dress code in 2021. The team was fined 1500 Euro because it had worn shorts instead of bikini bottoms in a match of the European Championship.Footnote 104 This violated the rules of the International Handball Federation (IHF) requiring women to wear bikinis in official games, while men were allowed to wear tank tops and shorts.Footnote 105 Following the public outcry against the fine and the Norwegian national federation, the IHF revised its clothing regulations in late 2021 and decided to allow women beach handball players to wear ‘body fit tank top, short tight pants and eventual accessories’.Footnote 106 However, despite going through the effort to formally revise the clothing rules, the IHF opted for continuing to make a categorical difference between women and men since, unlike men, women cannot wear loose clothing. This shows how attached IFs are to upholding the gender binary and the presumption that women and men are categorically different subjects in sports.
Interestingly, in 2021, the IHF Council also decided to extend the equipment rules for indoor handball to beach handball, allowing the wearing of sport hijabs but, paradoxically, still prohibiting long pants (except for goalkeepers).Footnote 107 IHF’s clothing rules thus continue to objectify and sexualize women’s bodies by requiring women players to wear tight clothing and prohibiting full body covers in beach handball. This not only creates exclusions based on gender, religion and body type but can also negatively affect trans and intersex persons, since exposing a lot of body anatomy, such as through tight clothing, can lead to their forced outing.Footnote 108 The rules thus reproduce hegemonic femininities – and partly also hegemonic masculinities – which reflect cis-hetero-sexism, whiteness, endosexnormativity, and a slim body type. They show how different axes of gender inequalities intersect with race exclusions in the construction of normative bodies in sports.
5. The Semenya case: The autonomy and limitations of international sports federations
The previous sections have highlighted that IFs yield a lot of power to disseminate hegemonic gender norms. As their rules not only apply in international sports competitions, but they often trickle down to national contexts and shape local norms, IFs can be considered as de facto international lawmakers. This section further advances my argument by utilizing the Semenya case as a case study to demonstrate how the structure of international sports adjudication supports the law-making power of IFs to set (gendered) rules.
I chose to analyse the Semenya case because it once more demonstrates IFs’ power to shape hegemonic gender norms, but it also reveals that IFs do not function in a vacuum. Instead, they are embedded in a transnational network of norms, including international human rights law, state law and decisions by arbitration tribunals, which circumscribes their autonomy in adopting cis-hetero-sexist rules. This resonates with Krech’s analysis of the efforts of World Athletics to draw a line based on sex in international athletics, arguing that ‘[w]hile the IAAF is primarily responsible for any such line-drawing, it does not do so in a vacuum’.Footnote 109 Indeed, the Semenya case draws attention to (European) human rights law as one avenue among several to restrict the autonomy of IFs to draw exclusionary lines. Other avenues include the actions of domestic courts and legislatures, pressures exercised by sponsors, athlete activism (including strikes), and lobbying efforts by athletes’ representatives.
The Semenya case has so far been decided by three judicial or quasi-judicial bodies: the Court of Arbitration for Sport (CAS), the Swiss Federal Tribunal (SFT) and the Chamber of the European Court of Human Rights (ECtHR). The decision by each of these bodies reveals specific structural elements of international sports law that allow IFs to (re)produce hegemonic gender norms, which is why I will analyse them separately after first exploring the hegemonic gender norms that are at stake in the case.
5.1. The Semenya case and hegemonic gender norms
The Semenya case involves Mokgadi Caster Semenya, a South African athlete specialized in middle-distance running, challenging the so-called ‘DSD Regulations’ of World Athletics. These rules affect women with variations in sex characteristics, sometimes also called ‘intersex women’,Footnote 110 which must not be confounded with rules on trans athletes discussed in Section 3. Based on the DSD Regulations challenged by Semenya, women with certain variations in sex characteristics are excluded from specific international women’s athletic events if their natural testosterone levels exceed a specific threshold (5 nmol/l in 2019).Footnote 111 If affected women want to continue to participate in relevant competitions, they must undergo hormone treatment to reduce their testosterone levels.Footnote 112
As many critics have argued, the DSD Regulations have perpetuated gender stereotypes by excluding women who do not conform to hegemonic femininity, such as by appearing ‘too masculine’, from women’s sports events.Footnote 113 For instance, Winkler and Gilleri say succinctly that the DSD Regulations ‘encourage stigmatization of those who look not like the standard(ized) feminine athlete and do not fit gender stereotypes’.Footnote 114 One main criticism levelled against the DSD Regulations is that they single out testosterone as the sole genetic performance enhancer, while other genetic criteria, such as lung capacity, height or the production of lactic acid, remain unregulated. In addition, socio-economic performance enhancers, such as access to good coaching and training conditions, are, as usual, overlooked in the pursuit of establishing a level-playing-field.Footnote 115 World Athletics also only regulates natural testosterone among women, since men athletes are not subjected to a maximum threshold of testosterone.Footnote 116 This difference in treatment between women and men presupposes the wrongful assumption that testosterone is solely a male hormone, which women are not allowed to possess, and was challenged as a form of direct discrimination on the basis of sex by Semenya at the CAS.Footnote 117
Scholars and activists have further criticized the racialized effects of the DSD Regulations as athletes of colour and those from the Global South have been disproportionately excluded from competitions based on the Regulations.Footnote 118 One reason for this racialized disparity is attributable to the rules’ so-called ‘suspicion-based model’, where only athletes who are ‘suspicious’ of having high testosterone levels are tested. In practice, athletes with notable athletic achievements or those not conforming to stereotypical (white) norms on femininity have been subjected to scrutiny and testosterone tests. This is also possible since the Medical Manager of World Athletics has wide discretion in initiating an investigation based on the DSD Regulations.Footnote 119 The implementation of the DSD Regulations thus shows that gender and race norms often intersect in sports, leading in this case to the exclusion of mostly women of colour from the Global South.
Examining the DSD Regulations also helps to reveal how material the de facto power of IFs can be. By requiring athletes to undertake hormone treatment to continue their profession, the rules of World Athletics leave permanent traces inscribed in the athletes’ bodies. They perpetuate the harmful notion that bodies with certain variations of sex characteristics must be ‘fixed’ through medical treatment, which the intersex rights community has strongly rejected as a violation of the right to bodily integrity.Footnote 120 Reports further indicate that some affected athletes have experienced pressure to undergo gonadectomies to eliminate the main source of their testosterone production, even though the DSD Regulations do not formally require any surgeries.Footnote 121 The Regulations have thus clear material effects on bodies, more than certain state laws, despite being rules emitted by non-state actors.
The visible material harms generated by the DSD Regulations contradict World Athletics’ claim that athletes are not forced to undertake the medical treatment but that it is their free choice to undergo hormone treatment or not. This narrative of choice overlooks the financial dependency of athletes and their families on their careers, rendering their decision to undergo hormone treatment far from voluntary. Semenya herself had opted to undergo hormone treatment when it was imposed on her after winning a gold medal at the World Championship in 2009.Footnote 122 Yet, she experienced significant side-effects, such as nausea and mood swings, and her doctor recommended her to stop the treatment after four years.Footnote 123 She eventually ended the hormone treatment in 2015 when Dutee Chand challenged predecessors to the DSD Regulations, the ‘Hyperandrogenism Rules’, which the CAS suspended due to insufficient scientific evidence supporting them.Footnote 124 World Athletics finally decided to repeal the Hyperandrogenism Rules, which ended the CAS proceedings in the Chand case, but instead adopted the very similar DSD Regulations.Footnote 125 This made Semenya challenge the new testosterone rules, the DSD Regulations, at the CAS in 2018.
5.2. The Semenya case at the Court of Arbitration for Sport
Semenya’s only option to challenge the DSD Regulations was to bring the case to the CAS. Since the Regulations establish the CAS as the relevant dispute settlement mechanism, Semenya could not seek recourse at any domestic courts, such as in South Africa or Monaco (the seat of World Athletics).Footnote 126 The inclusion of arbitration clauses, which transfer jurisdiction over disputes to arbitration tribunals instead of ordinary judicial bodies, has become a common practice in agreements between IFs and athletes or other entities since the 1990s.Footnote 127 The result is the creation of an almost autonomous legal regime, often called lex sportiva, in which IFs set their rules and mostly private dispute settlement bodies decide on these rules.Footnote 128 Some IFs have their own arbitration tribunals,Footnote 129 but the vast majority use the CAS, which was set up by the IOC in Switzerland in 1984.Footnote 130
At the CAS, Semenya contested the DSD Regulations on the grounds that they are discriminatory, rely on flawed science, and cause irreparable harm, including violations of bodily integrity.Footnote 131 The majority of the CAS arbitrators (two out of three) rejected Semenya’s claims by arguing that the DSD Regulations are ‘proportionate, necessary, and reasonable’.Footnote 132 This decision legitimated and reproduced several harmful hegemonic gender norms embedded in the DSD Regulations. For instance, it described endosex women as ‘real’ or ‘normal’ women, framed intersex women as in need of ‘fixing’ through medical procedures, and considered the use of ‘conventional oral contraceptives’ as a normalized and justified interference with women’s bodily integrity.Footnote 133 According to Krech, the CAS panel accepted that ‘there should be a cap on women’s performance; that women cannot or must not be “too” good and must certainly be far inferior to men when it comes to athletic performance. Otherwise, they must not actually be women’.Footnote 134 The CAS panel further ignored the possibility that the DSD Regulations constitute intersectional forms of indirect discrimination since they disproportionately affect women of colour from the Global South.
By denying Semenya’s request for arbitration, the CAS upheld the autonomy of World Athletics to set its eligibility rules based on hegemonic gender norms. The award contradicted the approach taken by the CAS in the Dutee Chand case, in which it suspended the Hyperandrogenism Rules based on the lack of scientific evidence which would justify the rules. Krech sees this earlier decision as having been circumscribed by principles of ‘global administrative law’ through which the CAS set limits to the autonomy of World Athletics.Footnote 135 Yet, in Semenya, the CAS revised its own approach, even though the panel members again recognized that there was a paucity of scientific and conclusive studies that support the DSD Regulations.Footnote 136
The deference to World Athletics by the CAS in the Semenya case is reflective of broader dynamics at the CAS. In an analysis of 1125 CAS decisions issued between 1983 and 2014,Footnote 137 Lindholm found that sports governing bodies, which include international, regional, and national federations, are more likely than athletes to win a case at the CAS. In only 25 per cent of relevant cases, individuals win an appeal against a sports governing body.Footnote 138 Moreover, even though respondents generally have a better chance of winning at the CAS, this is not the case when the appellants are sports governing bodies, which win their appeals against individuals in 67 per cent of all cases.Footnote 139
While more qualitative research is needed to better explain the discrepancy in the probability of winning between sports governing bodies and athletes at the CAS, the data supports the critique that the CAS structurally advantages IFs. One major criticism raised against the CAS is that IFs have indirect influence over the nomination of CAS arbitrators caused by the institutional set-up of the CAS, which has called into question the independence of the CAS.Footnote 140 While going into detail on this discussion would divert from the focus of this article, the statistics presented above show that the Semenya decision reflects the general tendency of the CAS to grant IFs significant autonomy in their norm-setting initiatives, even if they reproduce exclusionary gender norms.Footnote 141
5.3. The Semenya case at the Swiss Federal Tribunal
The next step in the Semenya case provides further evidence for my claim that IFs enjoy wide autonomy in adopting their own rules, including rules based on hegemonic gender norms. As the CAS is domiciled in Switzerland, Semenya could seek recourse against the CAS award at the highest court in Switzerland, the SFT.Footnote 142 Based on Swiss private international law, the SFT can set aside international arbitral awards if they reflect certain procedural shortcomings or are incompatible with Swiss ‘public policy’.Footnote 143 Semenya invoked the latter ground and argued that the CAS Award violates the principle of non-discrimination, certain personality rights and her human dignity as encompassed by the principle of public policy.Footnote 144 It is noteworthy that the location of the CAS in Switzerland meant that the only available recourse for Semenya was the SFT which applies Swiss law. This further highlights the Eurocentric nature of international sports law and the relevance of politics of location in discussions on sports governance.
In 2020, the SFT rejected Semenya’s challenge of the CAS Award by holding that the award was not incompatible with the Swiss public order.Footnote 145 It argued that it is doubtful whether horizontal discrimination ‘is included in the scope of the restrictive notion of public order’.Footnote 146 This meant that the SFT questioned its own jurisdiction to interfere with the law-making power of an IF in order to potentially remedy discriminatory treatment exercised by World Athletics against Semenya. This reluctance to limit the autonomy of IFs derives from the general approach of Switzerland to grant private non-commercial associations, which include large IFs like FIFA next to local yodellingFootnote 147 clubs, a lot of autonomy in governing their internal affairs.Footnote 148 Swiss courts have also historically refrained from asserting jurisdiction over sports-related cases, particularly those concerning the ‘rules of the game’, which encompassed most aspects of organized sports in the past.Footnote 149 The underlying approach to this leniency against IFs reflected ‘the vision of sports as being purely a leisure activity, with no legally protected interests at stake’.Footnote 150 This framing of sports as leisure or hobby, rather than a commercial activity in which sportspeople engage as workers, enabled IFs to avoid extensive state control over their regulations. It further ignored that the right to leisure is also protected under human rights law, such as the International Covenant on Economic, Social and Cultural Rights.Footnote 151
Notwithstanding the initial reluctance to intervene in IFs’ matters, Baddeley highlights that Swiss courts have progressively acknowledged the need to safeguard sportspeople’s rights and to constrain IFs’ decisions since the 1970s.Footnote 152 However, this is not reflected in the SFT’s decisions when it comes to setting aside CAS awards. The success rate of challenging a CAS award at the SFT is very low, with the Tribunal setting aside only 8 per cent of all challenged CAS awards from 1989 to 2019, none of which were overturned based on the ground of breaching Swiss public policy.Footnote 153 This highlights that challenging CAS Awards at the SFT is an almost impossible endeavour, especially when a breach of public policy is invoked. Semenya’s case was thus not an exception but reflects the general tendency of Swiss courts to grant private bodies, including IFs and the CAS, vast autonomy in governing international sports, including rules on gender relations. The next phase in the Semenya case shows, however, that under European human rights law Switzerland has the obligation to limit the legitimation of exclusionary gender norms by IFs and the CAS.
5.4. The Semenya case at the European Court of Human Rights
After the refusal of the SFT to set aside the CAS Award, Semenya brought a case against Switzerland to the ECtHR in February 2021. This was possible because the SFT, which had validated the CAS award, was a judicial body of Switzerland and the subject matter fell within the ambit of the European Convention on Human Rights (ECHR). Once more, the only location available for continuing her grievances against World Athletics was the European court, where she claimed that the SFT’s validation of the CAS Award, which had upheld the DSD Regulation, violated rights protected by the ECHR, including her right to non-discrimination, bodily integrity and an effective remedy.Footnote 154 Even though the access to the ECtHR due to Switzerland’s jurisdiction over CAS awards provides fortunately at least some sort of remedy to athletes like Semenya, it underscores again the Eurocentrism enshrined in the sports governance system.
In an unusually expedient process, a Chamber of the ECtHR issued its judgment in the case on 11 July 2023. The Chamber ruled partly in favour of Semenya by finding a violation of the right to non-discrimination (Article 14) taken together with the right to private life (Article 8). It also found a violation of the right to an effective remedy (Article 13) in relation to Article 14 taken together with Article 8. Yet, it declared the complaints made under Article 3 (prohibition of torture and ill-treatment) as inadmissible because of being manifestly ill-founded and refused to provide a separate ruling on the complaints under Article 8 taken alone and under Article 6 (right to fair trial).Footnote 155
The Chamber decision constitutes an interim victory for Semenya and shows that IFs can be restricted in the production of harmful gender norms. Yet, the decision has been referred to the Grand Chamber, which means that the outcome of the case is not yet certain. Nevertheless, the Chamber’s judgment is illustrative of using (European) human rights law as a means to restrict the autonomy of IFs in disseminating hegemonic gender norms. The Chamber held that the violations of the ECHR occurred due to a lack of ‘sufficient institutional and procedural safeguards in Switzerland to allow her to have her complaints examined effectively, especially since her complaints concerned substantiated and credible claims of discrimination’.Footnote 156 It thus found a positive obligation of Switzerland to establish mechanisms necessary to remedy horizontal discrimination exercised by IFs and legitimated by the CAS.
The Chamber decision is not conclusive on whether the DSD Regulations actually constitute discrimination, as it focuses on Switzerland’s obligation to establish procedural mechanisms to remedy (potential) discrimination. Yet, it notes the harmful consequences that IFs’ rules can have on athletes by stressing that the DSD Regulations do not provide a real ‘choice’ to the athletes concerned. They must either undertake hormone treatment, which potentially damages their physical and mental integrity, or they refuse to do the treatment and consequently lose their job and livelihoods.Footnote 157 This recognizes the de facto material force of the DSD Regulations over athletes’ bodies. The Chamber further emphasizes that the SFT (and the CAS) should have taken the side-effects caused by the hormone treatment prescribed to comply with the DSD Regulations seriously.Footnote 158 This acknowledges the fact that IFs’ rules have material effects on athletes’ bodies and their economic well-being, highlighting the de facto law-making power of IFs.
Despite Semenya’s interim victory, she will not be able to return to international athletic competitions in the near future. This is not only because the Grand Chamber still needs to decide on the case, but also because World Athletics has announced that, for now, it will keep its current form of the DSD Regulations, which are even more restrictive than those challenged by Semenya.Footnote 159 This makes the difficulties in enforcing the ECtHR’s judgment and restricting the actions of World Athletics, a Monacan-based private association, evident. The Chamber’s decision means primarily that if the same case or a similar case arrives again at the CAS and is transferred to the SFT, then Switzerland must ensure that the review of the CAS award by the SFT satisfies ECHR standards. In practice, this could mean that the SFT must set limits on the CAS’ decision to uphold discriminatory rules, such as the DSD Regulations. The set-up of justice mechanisms in international sports shields IFs from interferences in their de facto lawmaking power and does not provide effective access to justice for athletes like Semenya.
Nevertheless, the Chamber’s judgment signals that IFs’ autonomy of disseminating hegemonic gender norms can be restricted through human rights instruments, notably the ECtHR. It shows that the lex sportiva is not an entirely autonomous legal system, but states have, under certain circumstances, an obligation to set limits on the law-making power of IFs.
6. A feminist case for considering international sports federations as lawmakers
In this article, I have so far demonstrated the de facto lawmaking power of IFs to disseminate hegemonic gender norm by means of discussing LGBT rights at the 2022 FIFA Men’s World Cup, rules on the participation of trans athletes, uniform regulations and the DSD Regulations. IFs are indeed de facto international lawmakers even if their power to organize sports may not be absolute. I thus see the analysis of IF’s law-making power as advancing queer-feminist and anti-racist critiques of international law by shedding light on global power inequalities that lawyers often ignore. It takes the normative power of a specific type of non-state actors, namely IFs, seriously and thus subverts the traditional approach of positivist lawyers to assume that states are the ultimate top-down regulators of social relations.Footnote 160 Shifting the focus to IFs as lawmakers can therefore follow Chinkin’s and Charlesworth’s claim that it can be a ‘feminist strategy’ ‘to undermine the centrality of the state in international law’.Footnote 161
Queer-feminist explorations of IFs’ law-making powers also need to engage with the multiple axes of unequal power relations embedded in international sports governance. For instance, an intersectional queer-feminist critique that is attentive to politics of locations cannot ignore the Eurocentric nature of the lex sportiva, as highlighted by the location of core sport regulators, such as IFs, the CAS, and the ECtHR, in Europe. The fact that Europe-based entities regulate the everyday realities of athletes across the world highlights democratic deficits and neo-colonial tendencies in international (sports) law, which deserve further exploration. Practising a politics of location also encourages researchers like me to interrogate what is considered authoritative knowledge in international law and how we are ourselves implicated in the erasure of certain knowledges and lived realities in academia.Footnote 162
In this regard, I see potential in shifting the focus to the lived realities of a group that remains under-considered in international law by treating IFs as lawmakers. While athletes are often perceived as wealthy and influential individuals, the truth is that the majority of professional athletes face precarious conditions. A survey published by Global Athlete in 2020 highlights that 58 per cent of 491 athletes from 48 countries do not consider themselves financially stable.Footnote 163 Financial protection in the case of injury and retirement plans are scarce in sports, especially for women and athletes from the Global South.Footnote 164 Moreover, the right to collective bargaining and the representation of athletes in decision-making remain significant challenges in sports.Footnote 165 Hence, subjecting IFs’ law-making power to a queer-feminist and anti-racist critique sheds light on the challenges experienced by a marginalized group of people who often fall through the cracks of human rights and labour rights regimes.
However, my call to subject the lawmaking power of IFs to a queer-feminist and anti-racist critique should not be mistaken for assuming that the regulation of sports by states, rather than IFs, would necessarily reduce the gendered and racialized nature of sports. Instead, state law can sometimes be even more exclusionary than the rules of IFs. For example, my discussion on headcovers in sports showed that most IFs have removed their formal veil bans, while French law continues to prevent athletes from wearing hijabs and other Islamic veils. In this context, it is state law and the jurisprudence of the ECtHR that perpetuate the racialized policing of women’s bodies through hijab bans in sports.
Thus, states are not necessarily ‘better’ sports regulators than IFs from the point of view of gender justice. The claim that I make here is not normative but rather empirical, in the sense that since IFs are de facto international lawmakers, international lawyers should treat them as such.Footnote 166 What athletes can eat or drink, what they can wear, which medicine they can take and in which events they can compete often depends on IFs. Their bodies are often literally governed by these sporting entities. This dependence is especially pronounced for athletes without privileges based on gender, class, race, or geographical location. Taking IFs seriously as lawmakers acknowledges that rules by sports federations impact athletes’ lives often more profoundly than state law. Their effects are often ‘harder’ than those of norms that are traditionally considered as ‘hard law’, since they can entail, for example, the loss of one’s income and material harm conducted on bodies, as demonstrated by the Semenya case.
My approach taken to IFs thus falls under what Brölmann and Radi call the ‘socio-legal landscape’ to international lawmaking, which concentrates on the actual legal capacity of institutions to influence social relations instead of determining their formal standing in terms of being considered a subject of international law.Footnote 167 The focus on the de facto lawmaking power of IFs to regulate athletes’ lives helps to understand how lives are governed in practice, rather than in the abstract. This reflects the feminist objective to start legal explorations from the lived realities of people instead of abstract, universal entities. According to Davies, feminists have critiqued ‘the detachment of positive law from everyday realities’.Footnote 168 Understanding the regulation of everyday realities of athletes, including the governance of their bodies and gender identities, also presents a step to finding ways of dismantling inequalities in sports.
Studying the rules that materially regulate athletes’ lives further deconstructs the binary between the public vs. the private, which feminists have long recognized as being gendered. Feminist legal scholars have critiqued that lawyers tend to focus on the public sphere governed by state laws, which reflects a gender bias as private spaces are often especially relevant for women’s lives.Footnote 169 In particular, decolonial and postcolonial feminist legal scholars have pointed out that engaging with non-state norms can assist in understanding how the lives of marginalized groups, such as women, indigenous peoples and colonized peoples, are regulated. As these groups find themselves often far away from elite state institutions, their lives are more likely to be governed by a plurality of state and non-state norms.Footnote 170
From this perspective, focusing only on states as ultimate regulators of social relations can bear gender, race and Eurocentric biases, which means that analysing how private entities, such as IFs, shape global norms on gender yields the potential to remedy these biases in international law scholarship. Understanding IFs as core actors in the international governance of gender norms in sports and beyond helps to grasp the complexity of international norm dissemination processes, overcoming the constructed dichotomy between the private and the public.Footnote 171 Given the popularity of mega sporting events across the world, international lawyers have a lot to gain from considering the power of sports in shaping social norms.
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