March 31, 2026

The IOC recently announced that athletes who benefit from male physiological advantage will no longer be permitted to compete in the female category. Predictably, this has led to some push-back from those who believe that inclusion is the highest good in sport – rather than fairness (or safety). We will discuss a few of their objections.

Equality

Paula Gerber, an international human rights lawyer, repeats the common claim that sex verification violates the right to equality and non-discrimination. People who make this claim don’t seem to be aware of the philosophical foundations of law. It is a principle of justice, going back to Aristotle’s Nicomachean Ethics (2002, V.3. 1131a10–b15), that like cases should be treated alike and unlike cases differently. The new IOC policy (closely following World Athletics) is designed to establish what are like cases (women) and what are unlike cases (trans women and athletes with male DSDs) in sport. Women should be treated the same, but TW and athletes with male DSDs (except CAIS) should not be treated the same as women – because they are not women and do benefit from male physiological advantage.

So, we may treat athletes the same if they are alike in all relevant respects: being female. Anyone who benefits from male physiological advantage differs from female athletes in relevant respects, and we may exclude them. In sport only bodies matter. We class people by their bodies (male/female, junior/senior, under/over 60kg, or by the level of disability in para-sport). It doesn’t matter that they may ‘identify’ as X,Y or Z or that their documents state that they are ‘female’. The new IOC policy – finally – reflects this difference in bodies. In other areas of life this difference is not relevant, for example, when it comes to driving a bus or to advising people about tax law.

The fault of the previous policy was that it supported a misguided idea of inclusion. We do not need to include those (in the female category) who differ in relevant respects. The new regulations uphold said principle of justice. Consider another context: all adult citizens may vote in elections (we treat them equally), but tourists, who happen to be in the country, may not vote in elections. The two groups differ in a relevant respect: some are citizens, some are not. We may discriminate (in the positive sense) between the two groups and exclude tourists. Trans women and athletes with male DSDs wrongly believe that they belong in the female category. They are the equivalent of ‘tourists’ in the female category.

When the UK introduced its transgender legislation in 2004, it contained several exceptions. One of them was for sport. Accordingly, governing bodies could ‘prohibit or restrict the participation as competitors’ if ‘the prohibition or restriction is necessary to secure – (a) fair competition, or (b) the safety of competitors’. The lawmakers understood that their legislation would not remove male advantage from trans women’s bodies. It could not magically transform a man into a woman. They understood that the legislation was based on a legal fiction (fictio legis).

Novel circumstances or societal change may lead to pressure to fit new phenomena into a pre-existing framework, because it is presumed that this will result in some social benefit and it would accord with the purposes of the law. The law (or a court) then allows statements to be made (legal fictions) which are strictly false, and everyone involved knows this. This differs from outright lying, where someone is being deliberately deceived.

The law agrees to treat X as if they were Y. For example, in the UK you can apply for a ‘declaration of presumed death’ if a person has been missing for more than 7 years. This allows the relatives to deal with the affairs of the missing person. The law will treat the missing person as if they were dead – although they may in fact be sipping Margaritas in Acapulco. It is the same in transgender legislation; the law agrees to treat a man – in some tightly constrained legal respects – as if they were a woman (hence the exceptions in UK law). Unfortunately, many people, due to lobbying and misinformation by trans supporters, misinterpreted transgender legislation as applying without qualification to all aspects of social life. But the UK Supreme Court in April 2025 clarified that terms like ‘woman’, ‘female’ or ‘sex’ refer to biology – and this matters in sport, but also in other areas like the female prison estate.

Discrimination

Once we understand what ‘treating people equally’ means, we can deal with the charge that the IOC and World Athletics policies are ‘discriminatory’. These critics fail to distinguish between the two meanings of the word ‘discrimination’: 1. Recognizing a given – relevant – difference, e.g. between children and adults, and treating people accordingly (like giving children smaller portions for lunch); 2. Treating individuals or groups differently based on an irrelevant difference, either arbitrarily (on a whim) or as the result of prejudice or malice (e.g. ‘No Irish, no Blacks!’). The former is justified; the latter is not.

Excluding women with red hair from the female category would be wrongful discrimination, because it is based on an arbitrary, irrelevant criterion (i.e. meaning 2). But excluding athletes with male DSDs is rightful discrimination, because it is based on a relevant difference: male physiological advantage (i.e. meaning 1). The critics, either from ignorance or from bad faith, treat meaning 1 as if it were meaning 2.

Coercion

A number of critics of the policy have asserted that sex verification is generally coercive, or specifically that it constitutes a coercive offer – a more technical term drawn from political philosophy. Both criticisms are misplaced. Generally, an account of coercion must show that a coerced person faces unreasonable options. If I point a loaded gun at you and say ‘your money or your life!’, then you are likely to give me your money, since the alternative is your death, and that seems unreasonable. But it’s not enough that you dislike the alternative. ‘You can’t always get what you want’, as Mick Jagger reminded us. The fact that an alternative is dispreferred is not enough to make a situation coercive. If you offer me a wine gum from the packet you’ve got, but none of my favourite green ones are left, it would be wrong to say that I’ve been coerced into eating a dispreferred not-green wine gum.

So, we must look at the alternatives to the alleged coercive offer made to an individual who wants to compete in the female category: a test of their sex via cheek swab. Now, apart from the fact that we are both getting on and a bit slower than we used to be, both of the authors of this piece would struggle with eligibility. We are both male. We are both SRY+. If we were foolish enough to take a test we would be found ineligible for the women’s category at the Olympics. But we are not thereby coerced. It’s true that neither of us want to take part in the female category of the Olympics, but that’s not relevant for the Jagger-type reasons mentioned above.

The male SRY+ athletes – both those who are trans and those who have a male DSD are faced with a choice, then. They can take the test, which they will fail, or they can refuse the test. Either way (leaving aside the CAIS exemption mentioned above) they will be excluded from the female category. But you need much more than this to establish that the exclusion is coercive. You need to show that their exclusion from the female category is unreasonable.

All eligibility tests serve to exclude people, some of whom would rather be included. 23 year old footballers who want to compete in the under 23s competition are not permitted to do so. They are not, thereby forced out of the under 23s, since the same rule applies to them as applies to everyone else and the rule is not unreasonable. It’s just rather silly to complain that footballers are excluded from the under 23s when they turn 23. Of course they are: that’s the point of the rules. Equally, the point of eligibility rules into a sex category is to exclude people with a set of advantages that give the category its point. We have a female sex category for reasons to do with male advantage – the complex, interlocking, and mutually reinforcing set of advantages that accrue to someone by virtue of their being male. Male and female bodies are fundamentally different, and we are interested in what each group can do with the bodies that they have. That’s why we want to know who is the fastest (etc.) male athlete and who is the fastest (etc.) female athlete.

The exclusion of males from the female category, then, makes sense. It is reasonable, and we’ve just given some of the reasons. The IOC, following World Athletics, acts reasonably when it insists on SRY screening. Such screening is necessary, because there have been cases where its absence has led to unfair competition: Caster Semenya and Imane Khelif are the most famous, but there are several others. It’s certainly proportionate, because cheek swabs are non-invasive.  And in the absence of a compelling argument that all this is unreasonable, it is not close to being coercive.

In short, there’s nothing particularly new or ethically troubling about sex screening for eligibility into the female category. It is ethically speaking just like any other eligibility test. Nationality tests, anti-doping tests, weigh-ins, all have the same structure: obviously, if you fail, you are not eligible. The absence of sex testing has led to notable and serious injustices to female athletes – who themselves back the new rules overwhelmingly.  

It’s been a battle to get to this point. But we tried real hard, and we might just find we’ve got what we need.

Miroslav Imbrišević is a lecturer in political philosophy at Allen Hall Seminary, London/UK; Jon Pike is Professor of Philosophy at the Open University, UK