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The eligibility of transgender women to compete in the female category in sport has become one of the most sensitive and complex issues in international sports law.<\/p>\n
The participation of Valentina Petrillo, the first openly transgender Italian athlete to compete at the Paralympic Games, has brought renewed attention to the relationship between inclusion, competitive fairness, the regulatory autonomy of sports federations and the protection of athletes\u2019 rights.<\/p>\n
Petrillo, a visually impaired sprinter, began hormone therapy in 2019 and started competing in the female category in 2020. At the Paris 2024 Paralympic Games, she competed in the women\u2019s T12 200m and 400m events, reaching the semi-finals of the 400m. Her participation attracted particular attention in view of the differing approaches adopted by the principal international sport governing bodies responsible for non-para-athletics and para-athletics.<\/p>\n
The case raises a broader question: to what extent may different international sports federations legitimately adopt different eligibility criteria for participation in the female category in sport?<\/p>\n
As a matter of principle, the regulatory autonomy of international sports federations permits them to establish participation requirements having regard to the characteristics and objectives of their particular sports. Such autonomy, however, is not unlimited. A rule restricting access to competition must bear a rational connection to the objective pursued; be supported by an adequate evidential basis; and comply with the principle of proportionality.<\/p>\n
International sports federations are private-law entities, but within the sporting order they exercise functions that are, in substance, regulatory in nature. Through their statutes and regulations, they determine the conditions for participation in sport competitions, eligibility requirements and the consequences of non-compliance.<\/p>\n
Such rules may have a significant impact on an athlete\u2019s position, determining access to competitions and, consequently, career opportunities. They may also engage issues relating to personal identity, private life and the protection of health data.<\/p>\n
These considerations are particularly relevant within the international sports justice system. Disputes concerning decisions adopted by international sports federations are frequently referred to the Court of Arbitration for Sport (CAS), based in Lausanne. For athletes, arbitration will generally constitute the remedy provided for under the applicable federation regulations, making procedural safeguards and the effectiveness of judicial review of sporting decisions of particular importance.<\/p>\n
The fact that different international sports federations adopt different eligibility criteria does not, per se<\/em>, render those rules unlawful.<\/p>\n Competitive categories may pursue different objectives. In non-para-athletics, the regulation of the female category in sport is primarily concerned with ensuring what is regarded as fair competitive conditions amongst female athletes.<\/p>\n In para-athletics, by contrast, competition is also based on a functional classification system, which is designed to group athletes into classes according to the impact of their impairment on sporting performance, thereby ensuring meaningful competitive comparison.<\/p>\n It follows that a conclusion reached in the context of non-para-athletics cannot automatically be transposed to para-athletics. Any impact of physiological characteristics associated with puberty must be assessed having regard to the particular sport, event and level of competition and, in para-athletics, to the relevant sports class.<\/p>\n A criterion based on legally recognised sex may, therefore, in principle, be consistent with the structure of a particular Paralympic competition; whereas another international sports federation may consider additional eligibility requirements necessary.<\/p>\n From a legal perspective, the critical issue is not the existence of different rules as such, but the justification for those differences and the proportionality of the measures adopted.<\/p>\n The case of Valentina Petrillo provides a significant illustration of the regulatory fragmentation of international sport.<\/p>\n Whilst World Athletics has introduced restrictions on the participation of transgender women who have undergone male puberty in international elite women\u2019s sports competitions, the approach adopted by World Para Athletics has been different.<\/p>\n The divergence between these regulatory approaches should not simply be characterised as a conflict between inclusion and competitive fairness. The legal question is rather whether the differing regulatory frameworks are adequately justified by the characteristics of the sport being regulated and by the function served by the relevant competitive categories.<\/p>\n The Petrillo case, therefore, illustrates why international sports law cannot be governed by a single criterion applied indiscriminately across all sports. The legality of an eligibility rule must be assessed in the context of the specific competitive structure and sport to which it applies.<\/p>\n A particularly important reference point is the litigation concerning Caster Semenya.<\/p>\n It is nevertheless essential to emphasise that the Semenya litigation concerned athletes with differences of sex development (DSD), rather than transgender women. The relevant jurisprudence, therefore, cannot automatically be applied to rules governing gender transition.<\/p>\n Its significance is principally methodological. In the litigation concerning DSD regulations, CAS was required to consider whether differential eligibility requirements applicable to a group of athletes legally recognised as women were justified by the objective of protecting the fairness of the female category in sport and whether the measures adopted were necessary and proportionate.<\/p>\n This gives rise to a principle of broader relevance to disputes concerning gender identity: a restriction on eligibility cannot be justified solely by a general assertion that a potential performance advantage exists.<\/p>\n The assessment must, so far as possible, be directed to the specific sport, event and competitive context concerned.<\/p>\n The quality of the scientific evidence, therefore, is central to any assessment of the legality of any eligibility restrictions.<\/p>\n An international sports federation introducing a restriction should be capable of demonstrating its factual and scientific basis and establishing its relevance to the objective pursued.<\/p>\n Likewise, Swiss sports jurisprudence attaches importance to the allocation of the burden of proof. In proceedings concerning the use of prostheses in athletics, the Swiss Federal Supreme Court referred to the balance of probabilities standard in assessing whether an overall competitive advantage had been established.<\/p>\n That standard cannot automatically be transposed to disputes concerning gender identity. It nevertheless confirms an important methodological principle: the burden of establishing the factual basis for a regulatory restriction cannot simply be replaced by a general presumption of ineligibility.<\/p>\n The principle of proportionality constitutes the principal mechanism for balancing the regulatory autonomy of sports federations against the protection of the athlete\u2019s position.<\/p>\n A restriction on eligibility must also be assessed considering its concrete effects on the individual concerned. Alongside the interest in protecting competitive fairness, consideration should, therefore, be given, where relevant, to the athlete\u2019s sporting career; personal dignity; identity; private life; and the confidentiality of health-related data.<\/p>\n Particular attention must also be paid to the manner in which an international sports federation verifies eligibility requirements. Any medical assessments or requests for information concerning gender identity should be governed by principles of necessity, confidentiality and proportionality.<\/p>\n Proportionality also has a procedural dimension.<\/p>\n In Semenya v Switzerland (ref:10934\/21), the Grand Chamber of the European Court of Human Rights held, on 11 July 2023, that, where compulsory sports arbitration was in issue and the dispute concerned civil rights, the review exercised by the Swiss Federal Supreme Court over the arbitral award was required to be sufficiently rigorous. The Court found a violation of Article 6 \u00a7 1 of the European Convention on Human Rights in respect of the procedural safeguards afforded to the athlete.<\/p>\n The case of Valentina Petrillo demonstrates that the debate surrounding the participation of transgender women in the female category in sport cannot be reduced to a simple opposition between inclusion and competitive fairness.<\/p>\n International sports federations may, in principle, adopt different eligibility criteria considering the particular characteristics of each sport and of their respective classification systems.<\/p>\n The legality of a restriction, however, does not follow merely from the international sport federation regulatory autonomy. It depends upon the federation\u2019s ability to demonstrate that the measure adopted is objectively justified; rationally connected to the objective pursued; supported by adequate evidence; necessary and proportionate; and accompanied by effective procedural safeguards.<\/p>\n The Semenya jurisprudence does not provide a definitive answer to disputes concerning transgender women, since the underlying factual and regulatory circumstances are distinct. It nevertheless provides an important benchmark for international sports justice: the greater the impact of a regulatory framework on an athlete\u2019s career, identity and rights, the more rigorous must be the evidential basis for the restriction, the proportionality assessment and the scrutiny exercised by the bodies called upon to determine the dispute.<\/p>\n It should also be mentioned that in March 2026, the International Olympic Committee announced a new policy that bans transgender women athletes from competing in the female category at the Olympic Games.<\/p>\n Finally, it should be noted that, at the intersection between the regulatory autonomy of the sporting order and the protection of competitive fairness and the safeguarding of athletes\u2019 rights one of the most complex and rapidly evolving issues in international sports law currently lies.<\/p>\n