On the 1st May 2011, the International Amateur Athletic Federation outlined new regulations governing the eligibility of athletes who have “undergone sex reassignment” to compete in women’s competition (1)
It seems likely that these regulations will also be applied to the International Olympic Committee.
It appears evident that these new regulations contravene articles 2 and 12 of the Universal Declaration of Human Rights (2) as well as articles 8 and 14 of the European Convention of Human Rights (3), notably those highlighted by Human Rights Commissioner Hammarberg on 31st August 2010 (4) concerning the forced sterilization of transgender persons, which he qualified as “ clearly running against the principles of human rights and human dignity”.
(For example, on a French national level, by condemning France (France v. Botella, 1992) the European Court of Human Rights judged “that in their daily life, the applicant was required to frequently show documents indicating their original sex (national identity card , acts of civil status, social security card, …) and was hence “placed in a situation incompatible with the respect of their private life “, that ” therefore, even considering a margin of appreciation due to national considerations, there was a lack of fair balance between national interests and the interests of the individual (…), therefore contrary to Article 8.”).
The new IAAF regulations require that the sex prior to sex reassignment should be revealed to the sporting authorities ((1) §2.2) leading to a fundamental legal problem in that, notably in French Law, (article 100 of the civil code) “All legal or administrative rectification of an act or legal judgement relative to the civil status are opposed to all.” (5)
It is therefore inconceivable to oblige that a status prior to the current legal status should be revealed.
Also, not only should the proof of sterilization be made, which, in itself constitutes an unacceptable requirement, but also in § 8.3 iv), as a minimum “the nature of the sex reassignment procedure undertaken” should be taken into consideration !
It should be noted that the document gives no guarantees as to the confidentiality of data collected, in particular when an athlete finds herself on the field on competition day.
These new regulations came into effect as of 1st May 2011 and it is urgent that the appropriate authorities denounce and demand their immediate dissolution, as they totally ignore all fundamental human rights considerations as defined by the abovementioned texts, and will otherwise inevitably lead to a legal challenge before the appropriate legal authorities.
Please contact the appropriate national authorities in your country to make them fully aware of this incoherent situation.
(2) Universal Declaration of Human Rights
Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.
(3) European Convention on Human Rights
Right to respect for private and family life
- Everyone has the right to respect for his private and family life, his home and his correspondence.
- There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
Prohibition of discrimination
The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status
By Emma Smith
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