Gendered Athletes in Sports: CEDAW’s Role in Tackling Heterosexist and Racialized Uniforms in Sports

Abstract

This chapter examines the human rights implications of gendered and racialized clothing regulations in sports. It specifically uses the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) as the framework to discuss how gendered and racialized clothing regulations contravene international human rights law. By analysing the applicability of CEDAW to the issue of heterosexist clothing regulations in sports, the chapter provides general insights into the protection of human rights in sports through reliance on existing international instruments.

1 Introduction

Sports remains one of the few domains where women and men are often treated differently. Not only is sex segregation a highly normalized practice in sports, but athletes are also frequently subjected to different sporting rules based on their gender. This was exemplified by the fine that was imposed on the Norwegian women’s beach handball team for violating clothing regulations in 2021. The team wore shorts instead of bikini bottoms in a game of the European Championship, which contravened the international beach handball rules prescribing that women must wear bikini tops and bikini bottoms while men must wear tank tops and shorts.¹ The imposed penalty of €1500 on the women’s team for wearing attire that was only allowed for men shows how sporting regulations regularly reproduce sexist and heteronormative (heterosexist) norms. As many similar examples continue to exist in sports, this chapter examines gendered—and racialized—clothing regulations from a human rights perspective.

More specifically, this chapter analyses the obligations of states to address heterosexist and racialized clothing regulations in sports that derive from the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). I am specifically interested in how CEDAW could be used to regulate the rules on clothing implemented by international sports federations, which are private organizations. This will be done by analysing a variety of clothing regulations in sports and examining the applicability of CEDAW to these regulations. For this task, I will examine the text of the CEDAW Convention as well as documents issued by the CEDAW Committee, notably general recommendations.

The rationale for this chapter is twofold. Firstly, it aims to shed light on the deeply gendered structure of the international sporting system. The chapter reveals that the gender binary, namely the assumption that women and men are dichotomous, are inherently different and have complementary identities, is reflected in several sporting rules. Sexism, homophobia, transphobia and intersexphobia are thus intimately connected, making it necessary to analyse these different axes of gendered oppression together. Moreover, the chapter makes clear that the gendered nature of sports must be understood in relation to other systems of inequality, such as racism and classism.

The second rationale of this chapter is that I aim to explore how an existing international human rights instrument, CEDAW, can be used to improve the human rights situations of athletes, in particular women athletes. CEDAW seems a promising instrument to overcome obstacles that the application of international human rights law to sports entails, since the Convention not only contains a broad meaning of “equality” but is also equipped to deal with discrimination carried out by private actors, such as sports federations. Analysing CEDAW’s applicability to clothing regulations in sports will thus provide general insights into how existing human rights law is applicable to sports governance.

The chapter continues with an introduction to gender distinctions that exist in sports. It then goes on to analyse examples of heterosexist and racialized clothing regulations in international sports, before delving into an examination of CEDAW’s applicability to the issue. In this examination, I will first lay out the mechanisms that are available to use CEDAW for tackling gendered clothing regulations, such as individual communications, before addressing the question whether CEDAW would even have jurisdiction to deal with regulations issued by private sports federations. This is followed by a discussion on states’ obligations to act with due diligence, to work towards establishing de facto equality, to fight gender stereotypes and to address intersectional forms of discrimination in sports. The conclusions will embed my results into the broader field of examining sports from a human rights perspective.

2 The Gendered Sporting System

Gendered clothing rules in sports are part of the broader hierarchical international sports governance system that is infused with global inequalities. The International Olympic Committee (IOC) often depicts international sports as an apolitical field and considers itself as “strictly politically neutral at all times”.² However, the apolitical image of the IOC and international sports more generally has been challenged by many sports commentators, athletes and scholars.³ Specifically, Rule 50 of the Olympic Charter banning political protests at the Olympic Games has been criticized for presenting sports federations as politically neutral entities, even though they indirectly uphold systems of inequality by preventing protests against these inequalities.⁴ The numerous instances of athletic activism at the Olympic Games,⁵ despite the presumed political neutrality of the Games, show that international sports events have often been places of political struggle and contestation.⁶ As this chapter discusses, these political struggles have included the negotiation and re-negotiation of appropriate gender norms at international sports events.

The highly gendered character of international sports becomes clearly visible when looking at its history. Past sports events, such as the Ancient Olympic Games, sometimes excluded women entirely from competing or even attending the events.⁷ Women were also excluded from competing in the first edition of the modern Olympic Games, and it was only in the second edition in Paris in 1900 that 22 women participated in tennis, sailing, croquet, equestrian and golf.⁸ Since then, Olympic disciplines have gradually opened for women, with boxing being the last summer Olympic discipline opening for women in 2012 and ski jumping the last winter Olympic discipline opening in 2014.⁹ Nevertheless, men still remained barred from competing in two traditionally “feminine” disciplines, synchronized swimming and rhythmic gymnastics, in the 2020 Olympic Games in Tokyo.¹⁰ This shows how sports continue to shape the gender binary in which women and men are characterized as two dichotomous and inherently different entities.

In terms of numbers, women constituted for the first time 48.7% of all athletes in the 2020 Summer Olympic Games in Tokyo and 45% in the 2022 Winter Olympic Games in Beijing.¹¹ The Games in Tokyo were also the first ones in which non-binary athletes competed openly for the first time.¹² Moreover, the number of women acting as flag bearers in Tokyo rose to 39%,¹³ and the Games included almost as many women-only events (46%) as men-only events (48.7%).¹⁴ Despite these developments, there is still a long way to go to ensure gender-equal representation in sports, since women—and non-binary persons—continue to remain highly underrepresented in decision-making bodies and the technical administration (incl. coaches) in international sporting bodies. This is demonstrated by the fact that only 38% of all IOC board members were women in 2020,¹⁵ while no data has been collected on non-binary persons.

Initiatives aimed at increasing the representation of all genders in international sports, such as the Olympics, have the potential to normalize certain bodies and gender expressions in sports. Yet, they reflect liberal approaches to equality, which often fail to address the structural root causes for the gender imbalances in the participation in sports.¹⁶ The significant difference in the funding for women’s and men’s sports shows that gender continues to influence the material conditions for professional, semi-professional and amateur sports all around the world.¹⁷ While more and more international sports federations equalize prize money for women’s and men’s competitions, the funding gap continues to persist in other types of remunerations, including sponsorship opportunities, as well as at the national, semi-professional, youth and amateur levels.¹⁸ International sports are thus also deeply gendered because of the allocation of financial resources in sports, usually advantaging (cis)¹⁹ men athletes.

Another important element in the discussion on the gendered nature of sports is that the gendered power inequalities lay the ground for the occurrence of sexual violence in sports. While sexual abuse in sports continues to remain under-investigated and under-researched, several scandals, such as the one concerning the US women’s gymnastics team doctor Larry Nassar, have shown that sexual violence regularly occurs in sports.²⁰ Part of the problem that creates the risk of sexual violence in sports are the weak labour standards. As the International Labour Organization points out, weak labour protection for athletes can create strong economic dependencies of athletes on their coaches, clubs and sports federations, which generates risks for exploitation.²¹ Furthermore, more and more studies show that child athletes, especially those competing at an elite level, are at a high risk of experiencing emotional and physical abuse from their coaches.²² This generally creates an environment where abusive behaviour, including sexual abuse, is highly normalized and tolerated, especially given the fact that sports federations often lack effective prevention and protection mechanisms in this field.²³

In the popular imagination, many sports disciplines continue to be seen as masculine fields, where ideas on hegemonic masculinity are manifested and reproduced.²⁴ Nevertheless, some sports disciplines are marked as “feminine”, especially those that are seen as enhancing stereotypical and heterosexist understandings of female attractiveness.²⁵ Men entering those “feminine” disciplines are often perceived as transgressing gender norms even more than women participating in traditionally “masculine” sports.²⁶ This is exemplified by the above-mentioned fact that men still cannot compete in rhythmic gymnastics and synchronized swimming at the Olympics, while women are nowadays allowed to compete in all disciplines.²⁷ Hegemonic ideas on appropriate femininity and masculinity in sports are also reproduced due to the public broadcasting of sports, which usually shows more men’s competitions than women’s and often sexualizes and objectifies women athletes.²⁸ Moreover, studies have shown that sports education also often reproduces gender stereotypes in sports.²⁹

While the media and the education sector create gendered cultural imaginations in sports, these are also (re)produced by the rules imposed by international sports federations. Athletes competing in women’s and men’s competitions are regularly subjected to different rules, such as in rules on sporting equipment and competition formats. For instance, international women’s and men’s basketball competitions use differently sized balls, except for the recently created 3 × 3 basketball events. Furthermore, women play only three sets in Grand Slams, while men play five. In addition to these examples, gender-specific rules in sports also include clothing regulations, which will be further discussed in the following sections.

3 Heterosexist and Racialized Clothing Regulations

Gendered clothing regulations are normalized in the world of sports. Not only do schoolchildren often have to wear different sports uniforms, but also many international sports federations have different rules on attire for women and men. The above-mentioned case of the Norwegian women’s beach handball team being fined for wearing shorts in 2021 is a telling example of the way international sports federations hold on to gender differences in uniform regulations, even when they are publicly challenged.

What happened in the case was that after having been fined for wearing shorts instead of bikini bottoms, the Norwegian women’s beach handball team protested, with the support of the Norwegian Handball Federation, against the rules of the International Handball Federation. This eventually led to changes in the respective clothing regulations in the fall of 2021. The International Handball Federation then decided to allow women to wear “body fit tank top, short tight pants and eventual accessories”.³⁰ While this satisfies some of the demands of the concerned athletes, these new clothing rules continue to make a difference between women and men, since the latter can wear loose tank tops and shorts in their competitions, while women must wear “body fit” attire.³¹ Thus, even though the International Handball Federation changed its regulations after having received criticism of objectifying women’s bodies, it continues to differentiate between women and men athletes by prescribing tight clothing for women only. Based on the current rules, women who do not want to wear the prescribed attire cannot participate in international beach handball events, which also generates intersectional effects since women may not want to follow the dress code for various reasons, including religious ones.

Another notable example of rules on gendered sporting attire can be found in the clothing regulations of the International Skating Union. According to these regulations, men must wear full-length trousers in single and pair ice dancing, while women must wear a skirt.³² These clothing regulations fit the overall heteronormative nature of ice skating, given that pair dances must always include a man and a woman and that men lead the dances.

These examples of clothing regulations in beach handball and ice dancing show that ensuring safety in sports is rarely the reason for gender-specific differences in uniform regulations. Otherwise, the safety argument would apply to all participants across gender categories in the same manner. Instead, it seems that the gendered regulations follow the rationale that was once explicitly stated by Joseph Blatter, the former President of the Fédération internationale de football association (FIFA), namely that women athletes should expose their naked bodies to attract more spectators and sponsors.³³ This demonstrates that gendered clothing regulations often put the appearance of women’s body into focus, instead of their athletic performance.

Attracting spectators and sponsors through the objectification of bodies is arguably not a necessary justification for the institutionalized difference between women and men in sports. Simply put, human rights bodies would have a hard time treating gendered clothing regulations, for example in beach handball or ice dancing, as having a legitimate aim. Instead, these regulations seem to restrict the autonomy of athletes to choose clothes that they feel comfortable wearing, and they can foster the sexualization and objectification of women athletes. While clothing regulations especially target women’s bodies, men’s bodies can also be subjected to heterosexist clothing regulations. This is clearly shown in the example of ice dancing, where men are obliged to wear trousers and cannot wear leggings, feeding into the image of elite masculinity.

Another example that highlights the fact that elitism influences clothing regulations in sports is the “catsuit” controversy involving Serena Williams. After having given birth in September 2017, Williams returned to the 2018 French Open in a tight full bodysuit, which reportedly helped address certain health issues she faced after childbirth, including the prevention of blood clots. Yet the President of the International Tennis Federation, Bernard Giudicelli, banned the catsuit, arguing that one has “to respect the game and the place”.³⁴ This institutionalized governance of Williams’ body presented one of the many racist and sexist comments that she has had to endure during her career.³⁵ As Nittle argues, it also reflects the elitist and white roots of tennis, since tennis became popular during Victorian England, where the elite dressed in white to signal hygiene, privilege and wealth.³⁶

The obligatory whiteness in tennis attire, such as in Wimbledon, has recently come under attack by women athletes and activists. In summer 2022, several women tennis players and tennis broadcasters started to speak out about the stress that the all-white dress code at Wimbledon generates for menstruating players.³⁷ This example demonstrates that clothing requirements can also constitute indirect forms of discrimination since the requirement of wearing white applies to all players regardless of their gender, but the impact of the clothing rules negatively affects menstruating players, who are predominately but not exclusively women. It further shows that sports continues to treat cis men as the status quo, and other experiences, such as those of menstruating players, remain unconsidered. This discussion also brought attention to the fact that menstruation remains a taboo in sports; competitions and facilities are often not designed to accommodate menstruating participants.

The elitism reflected in, for instance, a white tennis dress code highlights how gender discrimination in sports must always be understood in relation to other structures of inequality. The examples of the gendered beach handball rules, the ice dancing rules and the ban on Williams’ catsuit all have intersectional effects that reflect inequalities based on gender, race, class and religion. The governance of bodies in international sports not only relies on heterosexist assumptions on body appearance, but these assumptions are also strongly shaped by historically and culturally specific norms. One must keep in mind that international sport is not only a heavily male-dominated field, but it is also strongly shaped by “Western” powers. The largest international federations are almost exclusively located in the Global North, especially in Switzerland,³⁸ and decision-makers within those federations as well as sports arbitrators are predominantly men from the Global North.³⁹ Moreover, only three Olympic disciplines have their roots outside of Europe or North America: judo, karate and taekwondo.⁴⁰ In addition, researchers increasingly point out that Christian norms on gender and modesty have influenced international sports significantly, also caused by the colonial practices of European states that exported their sports to other parts of the world.⁴¹

While sports are often considered “a shared global ‘monoculture’”,⁴² there is nothing universal about sporting rules. Instead, they are the product of historically contingent and specific circumstances, which always reflect power inequalities based on gender, race, religion, class, physical ability, colonial legacies and geographical position. The workings of gender norms in clothing regulations in sports can thus only be understood by taking into account power inequalities based on location, race and history in international sports.

Two other recent examples of clothing regulations in sports exemplify this point. First, the ban on religious veils in certain international sports events shows precisely how heterosexist norms intersect with religious discrimination and racism. For example, Zahra Lari was penalized for wearing a hijab when competing in figure skating in the 2012 European Cup. After this incident, she was able to successfully lobby the International Skating Union to change this rule, which now instructs the jury to not take any points away for the wearing of hijabs.⁴³ Yet while athletes are now able to wear a hijab in practice, the official clothing rules of the Union still do not mention that religious veils may be worn during competitions.⁴⁴

The example of Zahra Lari lobbying the International Skating Union shows once more that changes in clothing regulations have often been the result of extensive activism by impacted athletes. Similarly, it was only after athlete activism that FIFA and the International Basketball Association (FIBA) started allowing players to wear a hijab in international competitions in 2014 and 2017.⁴⁵ Indeed, major changes have taken place in relation to the rules on hijabs over the last decade, and many international sports federations no longer categorically ban a veil from competitions. However, most of these federations have not yet explicitly addressed the veil in their rules;⁴⁶ it seems that they deal with the issue on a case-by-case basis when a relevant situation arises. This leaves athletes in situations of insecurity and frames them as the exception that needs special treatment.

Another example of a racialized rule in sports occurs in the debate as to whether so-called soul caps should be allowed at the Olympic Games in Tokyo. World Aquatics justified the banning of “soul caps”, a specific kind of swim cap designed to fit “thick, curly, and voluminous hair”,⁴⁷ from the Tokyo Olympics, arguing that they did not fit “the natural form of the head”. This decision by World Aquactics presents another instance when clothing regulations in sports can indirectly discriminate against a certain group based on race and gender. It treats formally all swimmers the same. Yet in practice, the decision has largely negative effects on women since they tend to have longer hair than men, especially black women as their hair tends to be more “thick, curly, and voluminous”.

The various examples of gendered and racialized clothing regulations discussed in this section show that international sporting rules are part of the transnationally circulating norms that normalize and (re)produce heterosexist, racialized, elitist and religion-specific notions of hegemonic femininity and masculinity. Rules on clothing in sports are thus part of the gendered sporting system which reproduced the gender binary by constructing women and men as different entities that are in a hierarchical relationship to another.

As intersex and trans activists have further pointed out, the gendered nature of uniforms also puts an extra burden on people whose gender identity and/or sex characteristics do not conform to the normative expectations of the gender binary. For example, activists have reported that clothing exposing body anatomy, such as tight clothing, can create anxiety and discomfort for trans and intersex persons.⁴⁸ Gender differences in sports uniforms involve a financial burden when people change the gender category in sports or start to compete in mixed sports because they must purchase new uniforms, creating an additional obstacle for people in precarious economic situations.⁴⁹ By enforcing the gender binary on people, heterosexist sports uniforms reflect the assumption that women and men are naturally opposite, complementary and fundamentally different entities. This also invisiblizes the existence of persons with gender identities and/or expressions outside of the binary.

The problematic nature of gendered clothing regulations has been increasingly noticed by international sports governance bodies. In its 2018 Report, the IOC Gender Equality Review Panel recognized that gendered clothing regulations could be contrary to the principle of gender equality, recommending that “competition uniforms reflect the technical requirements of the sport and do not have any unjustifiable differences”.⁵⁰ To reach this goal, it recommended conducting a review of gender-specific clothing differences, consulting with international sports federations and identifying an oversight body to address gendered clothing rules.⁵¹ The follow-up to these recommendations has yet to be made public. Until the IOC and international sports federations become more active in tackling gender-specific clothing regulations themselves, international human rights law could be a tool to support the de-gendering of clothing regulations in sports.

4 International Human Rights Law and Gendered Clothing Regulations

International sports law and international human rights law have long been considered two distinct legal regimes that hardly overlap each other. Yet, this volume shows that there is currently momentum to consider the interactions between these two regimes and how international human rights law can guide developments in the field of sports. This is also increasingly recognized in discussions on gender equality in sports. For instance, the Brighton Declaration adopted during the 6th World Conference on Women and Sport in 2014 holds explicitly that sports governance bodies should comply with international human rights law, including CEDAW.⁵² Following this proposition, the remainder of this chapter will analyse how CEDAW can be applied to the issue of heterosexist and racialized clothing regulations in sports.

CEDAW was adopted by the UN General Assembly in 1979 and entered into force in 1981. After the Convention on the Rights of the Child, it is the most widely ratified treaty among the nine core international human rights treaties, but it is also the treaty with the most reservations.⁵³ It was drafted as a result of the dissatisfaction of women’s rights activists with general international human rights treaties, which often failed to take into account experiences commonly made by women and thus applied a male-biased definition of human rights.⁵⁴ Similar to other UN human rights treaties, the implementation of CEDAW is monitored by a Committee composed of 23 experts from different geographical regions and with different backgrounds. The Committee issues concluding observations, individual communications, general recommendations and inquiry reports, which provide guidance on the substance of state obligations deriving from the Convention.

Sports is mentioned in CEDAW in two different articles. Article 10(h) on the right to education holds that state parties shall take all appropriate measures to ensure, on the basis of the equality of women and men, “[t]he same Opportunities to participate actively in sports and physical education”.⁵⁵ In addition, Article 13(c) ensures women’s “right to participate in recreational activities, sports and all aspects of cultural life” on the same terms as men.⁵⁶ These two references to sports show that the drafters of CEDAW were well aware that there are considerable gender inequalities in sports. However, even if the treaty text was silent on sports, the Convention could be used to fight gender inequalities in sports since it aims to eliminate “all forms of discrimination”, including those that are not explicitly mentioned in the Convention.⁵⁷

Even though the text of CEDAW gives consideration to sports, Pérez González argues that the CEDAW Committee has rarely dealt with issues of discrimination in this area.⁵⁸ This lack of engagement is partly due to the Committee’s own blind spots,⁵⁹ but states and civil society have also largely failed to include sports as a substantive issue in state reporting procedures and individual communications. This also shows that international women’s rights movements have long sidelined the field of sports in their human rights advocacy.

To better understand the possible applicability of CEDAW to gendered clothing regulations in sports, the next sections will look at available mechanisms provided by CEDAW (Sect. 4.1), the possibility of taking recourse to CEDAW in the specific subject matter (Sect. 4.2), the due diligence obligations deriving from CEDAW (Sect. 4.3), the state obligation to work towards de facto equality (Sect. 4.4), the use of CEDAW to fight gender stereotypes (Sect. 4.5) and the Convention’s approach to intersectional forms of discrimination (Sect. 4.6).

4.1 Mechanisms: How to Use CEDAW to Address Gender Discrimination in Sports

CEDAW’s state reporting procedure and individual complaint procedure are two of the mechanisms that could be specifically useful for upholding women athletes’ rights. Aside from these two mechanisms, the CEDAW Committee also has the option to start an inquiry procedure if it receives reliable information indicating grave or systematic violations and the state party has accepted the inquiry procedure under the Optional Protocol.⁶⁰ Moreover, to clarify how CEDAW applies to gender inequalities in sports, the Committee could issue a specific General Recommendation on the issue. I will focus this analysis on the state reporting and individual complaint procedure under CEDAW since this could help advocacy efforts concretely. It also seems rather unlikely that the Committee would trigger an inquiry procedure due to gendered clothing regulations since starting an inquiry procedure usually requires a high level of violence and urgency, and issuing a General Recommendation is usually a decision up to the Committee.

CEDAW’s state reporting mechanism is established by Article 18 of the Convention, which creates the obligation of states to regularly submit reports on the progress of their implementation of the Convention to the Committee. These reports are considered during an interactive dialogue between the CEDAW Committee and state representatives, which takes place in Geneva. The outcome of the dialogue involves the Committee issuing Concluding Observations that record the concerned state’s developments of implementing the Convention and make recommendations for further improvements. While civil society organizations cannot usually speak during the interactive dialogue, they can write so-called shadow reports, which the Committee members can consider in their questions to the state party. In addition, it has become common practice that Committee members meet members of civil society to discuss challenges in the implementation of the Convention as part of the state reporting procedure.⁶¹ Sports could therefore receive more attention in the reporting procedure if civil society provide more input on the matter or if Committee members bring it up themselves.

Another mechanism through which gender inequalities in sports could be considered by the CEDAW Committee is through the individual communication procedure. The procedure is established under the Optional Protocol adopted in 1999 and allows individuals to send to the Committee complaints about alleged violations of their rights guaranteed by CEDAW. The Committee can consider the merit of these communications in cases where the state concerned has ratified the Optional Protocol, domestic remedies have been exhausted and the complaint is admissible.⁶² Once the Committee has conducted its investigation and sought additional information from the concerned state and applicant, it will make its final decision on the merits of the complaint.⁶³ Despite the fact that the Committee’s views on these individual complaints become authoritative decisions on the interpretation of CEDAW and form part of the jurisprudence of the Committee, they are not legally binding.⁶⁴

These individual communications could be a promising avenue for raising the issue of heterosexist clothing regulations with the CEDAW Committee. However, domestic remedies must first be exhausted before an individual can take recourse to CEDAW, which can be difficult in the realm of sports since most disputes are decided through arbitration and thus remain outside of a state’s public justice system. As the next section addresses, identifying the exact state that can be held accountable for failing to protect the athlete from the harm committed by a sports federation can be challenging in itself.

4.2 Recourse to CEDAW: Questions of Jurisdiction

A major difficulty in addressing discrimination and inequalities in sports through CEDAW is that organizations that make sporting rules are usually non-state entities. CEDAW is a state-centric instrument that follows the traditional legal approach to considering states as the duty-bearer of human rights and as responsible for ensuring compliance with CEDAW. This traditional approach stands in contrast to the emerging view that private entities, such as businesses and sports federations, also have human rights responsibilities⁶⁵ The latter view underpins the currently negotiated draft treaty on transnational corporations and other business enterprises⁶⁶ and has been supported by the Guiding Principles on Business and Human Rights (2011).⁶⁷ Even though the emerging approach to consider non-state actors as duty-bearers of human rights could be useful for addressing human rights issues in sports, this chapter remains within the accepted parameters of CEDAW and aims to analyse the obligations of states to address gendered clothing regulations in sports.

There are two scenarios in which to use CEDAW for tackling heterosexist clothing regulations within a state-centric approach. The first scenario comes into play when public bodies themselves are involved in implementing gendered clothing regulations. In many regions of the world, such as North America, sports are mostly organized as part of scholastic activities, such as college or high school sports. These structures tend to be public institutions or, if they are private, they often receive public funding. If the state concerned has ratified CEDAW, then the Convention becomes directly applicable to the governance of sports organized publicly. A crucial provision in this regard is CEDAW Article 2(d), which mentions that states must “refrain from engaging in any act or practice of discrimination against women and to ensure that public authorities and institutions shall act in conformity with this obligation”.⁶⁸

The second scenario is the focus of this article. In this scenario, non-state entities, notably private sports federations, are mostly responsible for establishing and implementing the rules in sports competitions, including clothing regulations. This raises the question of whether the concerned state has any responsibility for regulating the actions of these federations. The answer to this question depends partly on the legal technicalities of each state and whether sports federations have been considered as carrying out a “public function”, such as in India.⁶⁹ In this chapter, I aim to establish general principles, such as the principle of “due diligence”, which requires states to undertake positive measures to protect individuals from harm committed by other private actors.⁷⁰ I chose to analyse this scenario precisely because CEDAW provides strong due diligence obligations and could thus shed light on avenues to regulate the norm-setting behaviour of sports federations through existing international human rights law.

I will discuss the nature of CEDAW’s due diligence obligations further below, but another point regarding the recourse to CEDAW must be considered. Since disputes in international sports are often of a transnational nature, it can be difficult to ascertain which state has the responsibility for the actions of a sports federation. Is it the state where the relevant sports federation is legally registered, or is it the place where the actions are carried out (i.e. the host states of international sports events)? As Shinohara has analysed, the fact that disputes in sports are largely settled by means of arbitration further complicates the situation since the host state of relevant arbitration tribunals could also be responsible for ensuring that the settlement of disputes upholds human rights.⁷¹ In fact, the approach of holding states that host respective arbitration tribunals accountable if the tribunals fail to uphold human rights is increasingly prevalent in cases concerning human rights in sports, such as the Caster Semenya case discussed in Chap. 5.⁷² In this particular case, Switzerland is the respondent state before the European Court of Human Rights since the Swiss Federal Tribunal upheld the respective award issued by the Court of Arbitration for Sports (CAS).⁷³ This was possible since the CAS is located in Switzerland and CAS awards can be appealed, under certain circumstances, at the Swiss Federal Tribunal.⁷⁴

While a detailed discussion on jurisdictional issues in human rights cases concerning sports is outside the scope of this chapter, it is important to note that the transnational nature of international sports calls into question issues surrounding responsibility in terms of human rights protection. If one wants to take recourse to the CEDAW Committee to tackle heterosexist clothing regulations in sports, an effective link between the state and the regulations must be established. In other words, based on due diligence obligations, states can be held accountable under international human rights law if they fail to take necessary measures to prevent harm caused by non-state actors, such as international sports federations.

4.3 Due Diligence Obligations: Regulating the Actions of Sports Federations

Based on the discussion above, this section will look more closely at the due diligence obligations established by CEDAW. The Convention explicitly recognizes states’ positive obligations to influence the actions of non-state actors by requiring states, in Article 2(e), to “take all appropriate measures to eliminate discrimination against women by any person, organization or enterprise”.⁷⁵ The Committee has clarified that “Article 2 also imposes a due diligence obligation on States parties to prevent discrimination by private actors”⁷⁶ and that “[i]n some cases a private actor’s acts or omission of acts may be attributed to the State under international law”.⁷⁷ The strong due diligence obligations under CEDAW have proven to be particularly important in the fight against gender-based violence, which is mainly committed by private persons, such as family members, rather than state officials.⁷⁸

CEDAW General Recommendations have further addressed the responsibility of states to regulate the actions of private organizations, notably private companies. For instance, General Recommendation 25 states that CEDAW Article 2 “imposes accountability on the State party for action by [the private sector, private organizations, or political parties]”.⁷⁹ General Recommendation 28 holds that the obligations to protect women from discrimination “also extend to acts of national corporations operating extraterritorially”.⁸⁰ While international sports federations are not “corporations”, this reference could be applied by analogy to non-commercial organizations, including sports federations. This would indicate that states in which international sports federations are registered, such as Switzerland, must take necessary measures to prevent these federations from taking actions that generate extraterritorial effects and are contrary to CEDAW. This could be the case when their rules apply in international sports events, for instance World Cups or Olympic Games.

Discussions on CEDAW’s due diligence obligations have rarely considered sports, but Freeman, Chinkin and Rudolf have explicitly analysed the use of CEDAW to regulate the actions of sports federations. They state in their commentary on CEDAW that

the duty to protect obliges the State party to prevent private organizers of cultural and sports events from discriminating directly or indirectly against female participants, for example, by excluding women from certain sports because of gender-based stereotypes.⁸¹

Accordingly, CEDAW’s due diligence obligations could make the Convention a useful instrument for tackling women’s exclusion from sports, for example through heterosexist and racialized clothing regulations. The due diligence provision enshrined in CEDAW Article 2(e) must be read in conjunction with Article 2(a), (b) and (c), which establishes the obligation to outlaw gender discrimination through legislation.⁸² Reading these provisions together suggests that state parties also have the obligation to prohibit horizontal discrimination against women, which is discrimination conducted by private actors, such as sports federations. However, strong state protection against horizontal discrimination in the field of sports runs counter to the principle that sports federations enjoy significant autonomy in their norm-setting activities.⁸³ The IOC Charter establishes that sports organizations “have the rights and obligations of autonomy, which include freely establishing and controlling the rules of sport”.⁸⁴ Furthermore, most jurisdictions, such as Switzerland, grant sports federations vast autonomy and freedom in establishing the rules for their games and internal governance structures.⁸⁵ A lack of strong protections from horizontal discrimination in the field of sports fosters the autonomy of international sports federations to establish gendered clothing rules. It indirectly allows those federations, such as the International Handball Federation, to avoid properly implementing the anti-discrimination clauses that are enshrined in their own statutes.⁸⁶

The implementation of due diligence obligations by states can be especially critical in the field of sports because sports federations often hold a quasi-monopoly in their specific discipline.⁸⁷ Since there is usually one dominant federation organizing international competitions in a specific discipline, athletes are not in a position to freely consent to the federation’s rules.⁸⁸ Chappelet argues in this regard that

[w]ithin their respective sports, the IFs have “monopolistic powers” over the national federations (NFs) affiliated to them. Without recognition of the national federation by the IF of the sport in question, an athlete cannot envisage international-level competition.⁸⁹

The monopolistic status of international sports federations makes it difficult for athletes to refuse the rules of international sports federations since this would make it impossible for them to compete internationally at all. As discussed in the Mutu and Pechstein v. Switzerland judgment of the European Court of Human Rights (ECtHR), if athletes decide not to subject themselves to the regulations of the respective federation, they may incur significant loss of their economic livelihoods. This makes their consent to the rules of sports federations of a “compulsory” nature instead of a “voluntary” one.⁹⁰

In Mutu and Pechstein, the judges at the ECtHR decided that if the consent of athletes to accept the rules of sports federations is “compulsory” instead of “voluntary”, the protections of the ECHR, specifically Article 6, apply.⁹¹ While the case invoked rights under the ECHR and not CEDAW, it provides general insights into the nature of due diligence obligations in the field of sports, indicating that states have the obligation to act with due diligence, especially in cases where the athletes concerned do not have the option to freely consent to the sporting rules due to the respective federation’s monopolistic status.

4.4 De Facto Equality: Sports as an Unequal Practice

My discussion on due diligence obligations illustrated that CEDAW is based on a broad meaning of “discrimination”, covering also actions taken by non-state actors. The Committee has recognized that the “Convention goes beyond the concept of discrimination used in many national and international legal standards and norms”.⁹² One important element that makes the Convention special is that it obliges states to work towards de facto equality or substantive equality, instead of ensuring only formal or de jure equality, which is the focus of most anti-discrimination laws.⁹³ The obligation to foster de facto equality involves changing societal structures, material conditions and the behaviour of non-state actors to achieve equality in outcome between women and men.

According to the CEDAW Committee, the overall objective and purpose of the Convention is to “eliminate all forms of discrimination against women with a view to achieving women’s de jure and de facto equality with men”.⁹⁴ Indeed, the call to work towards substantive equality is mainstreamed throughout almost all substantive CEDAW articles regularly obliging states to take “all appropriate measures” to tackle the discrimination experienced by women. Moreover, Article 2(f) urges states to “take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women”.⁹⁵ The reference to customs and practices shows that states must go further than just eliminating any formal distinction between women and men and also address normalized patterns of social organizations that disadvantage women and reproduce inequalities.

The obligation to work towards substantive equality as enshrined in CEDAW could be useful for fighting inequalities in sports in various ways. It obliges states to create the material and social conditions that allow women to play sports on an equal footing with men. This could include making sure that women’s sports receive the same funding as men’s sports or undertaking educational projects to combat images of hegemonic masculinity in sports. It could further mean undertaking measures that ensure representation of women in decision-making bodies in sports, such as through “temporary special measures”, commonly referred to as affirmative action, and explicitly allowed by CEDAW Article 4.⁹⁶

CEDAW’s strong commitment to foster de jure and de facto equality can also support the fight against indirect discrimination in sports. The CEDAW Committee has recognized on multiple occasions that the Convention prohibits direct and indirect discrimination.⁹⁷ Indirect gender discrimination occurs when rules or measures seem neutral as they apply to all people in the same manner regardless of their gender, but their effects end up being discriminatory. As discussed above, neutral clothing regulations in sports can constitute an indirect form of discrimination if their effects disproportionally harm women and/or non-white people. This is the case with the requirement to wear white in Wimbledon, which indirectly disadvantages people who menstruate. Likewise, the banning of soul caps in international swimming tournaments indirectly disadvantages black women since they are more likely than others to have “thick, curly, and voluminous hair”. CEDAW’s clear stance to prohibit indirect discrimination and work towards substantive equality by addressing structural inequalities in the distribution of power and resources could thus be used to tackle clothing regulations in sports that cause indirect discrimination.

4.5 Stereotyping: Tackling the Gender Binary in Sports Through CEDAW Article 5

Another issue reflected in international clothing regulations is that sporting rules are often underpinned by gender stereotypes that are infused with hetero-, cis- and endosexnormativity,⁹⁸ as well as racism, classicism and Islamophobia. For example, the international rules prescribing women to wear skirts and men to wear trousers in ice dancing also require athletes to wear attire that is “modest, dignified and appropriate for athletic competition—not garish or theatrical in design”.⁹⁹ In practice, these requirements reproduce stereotypical and Western ideas of hegemonic femininity and masculinity. The rule that pair dances must include a man and a woman, and that men must lead the dances, further shows the heteronormative nature of some sports regulations, presuming that women and men are inherently different and complementary. Since CEDAW also creates the obligation to fight gender stereotypes, it could be a useful instrument to tackle these underlying stereotypical and binary ideas on appropriate gender norms in sports.

CEDAW Article 5(a) is particularly useful in the fight against gender stereotypes in sports. It obliges states

[t]o modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women.¹⁰⁰

Even though the CEDAW Committee has rarely addressed issues on sports, it has recognized that gender stereotypes affect women’s access to sports. General Recommendation 36 on the right to education urges states to address gender stereotypes in sports and in media representations of women athletes. It further raises other issues of discrimination in sports, such as the lack of funding for women’s sports.¹⁰¹ As Freeman, Chinkin and Rudolf point out in their CEDAW commentary, gender stereotypes ultimately rest upon a binary construction of gender, in which heterosexuality functions as a core determinant.¹⁰² Thus, challenging gendered clothing regulations in sports by relying on CEDAW Article 5 has the potential to address not only the sexist nature of clothing regulations but also their hetero-, cis- and endosexnormative bases.

Indeed, the interpretation of CEDAW by its Committee increasingly recognizes that sexism is entangled with hetero-, cis- and endosexnormativity. The Committee has refuted the understanding that gender is an inherent, biologically determined and binary characteristic that creates two complementary sexes or genders. Instead, it has recognized the social construction of gender by defining it as “socially constructed identities, attributes and roles for women and men”.¹⁰³ While this definition recognizes gender as a social system of inequality rather than as a biologically deterministic category, it continues to frame women as opposite to men, which recreates a binary understanding of gender.¹⁰⁴ In fact, as Miller explains, issues on non-heterosexual sexualities and diverse sexual identities have long been controversial issues for the CEDAW Committee and have largely been excluded from its mandate.¹⁰⁵

Yet in the last 15 years, the CEDAW Committee has started to consider the discrimination of women based on their sexual orientation, gender identity and sex characteristics. For example, it was the first UN Human Rights Treaty Body that recognized intersex persons in one of its concluding observations in 2009.¹⁰⁶ In a recent individual communication, it confirmed that “the rights enshrined in the Convention belong to all women, including lesbian, bisexual, transgender and intersex women, and that article 16 of the Convention applies also to non-heterosexual relations”.¹⁰⁷ These references are in line with the Committee’s approach to intersectionality, which, as discussed in the next section, considers sexual orientation and gender identity as intersecting statuses, possibly affecting women’s experiences of discrimination.¹⁰⁸ The Committee’s increasing consideration of issues of sexual orientation, gender identity and sex characteristics could make it a useful instrument for overcoming multi-layered gender stereotypes in sports.

4.6 Intersectionality: Tackling Multiple Forms of Discrimination in Sports

A related question to the previous discussion concerning gender stereotypes is how CEDAW could be used to tackle intersectional forms of discrimination presented by clothing regulations in sports. The Convention itself does not include provisions on intersectional forms of discrimination, but it does specifically address the situation of rural women in Article 14 and mentions the effects of poverty, racial discrimination and (neo-)colonialism on women’s rights in the Preamble. Critics have pointed out that the absence of a specific provision on intersectional forms of discrimination in CEDAW fails to take account of the varied lived experiences of women. More specifically, the Convention has been criticized for presuming a monolithic and universally true category of “womanhood” whose definition has been shaped by the realities of white and middle- or upper-class women.¹⁰⁹

While the text of CEDAW only implicitly considers the intersection of gender discrimination with other relations of inequality, the Committee’s interpretation of the Convention increasingly recognizes the complexity of different forms of gender discrimination. Most notably, General Recommendation 28 holds:

Intersectionality is a basic concept for understanding the scope of the general obligations of States parties contained in article 2. The discrimination of women based on sex and gender is inextricably linked with other factors that affect women, such as race, ethnicity, religion or belief, health, status, age, class, caste and sexual orientation and gender identity.¹¹⁰

In fact, the Committee’s commitment to tackle intersectional forms of discrimination has become visible in its more recent work, specifically in individual communications in which, among others, indigenous women, women with disabilities, Roma women and lesbian women have raised intersectional claims.¹¹¹ The Committee has further produced several General Recommendations on the rights of specific groups of women, such as migrant women, older women and women with disabilities.¹¹² As Sousa explains, by focusing on specific groups of women, the CEDAW Committee mainly applies a group-based approach to intersectionality,¹¹³ instead of considering more generally how gender norms are shaped by other social statuses, such as race, class, disability and religion.

Despite the fact that intersectionality is only weakly enshrined in the CEDAW Convention itself, the increasing sensibilities to intersectional forms of discrimination by the CEDAW Committee is a promising development. If addressed with the issue of clothing regulations in sports, the Committee would likely be compelled to analyse the intersection between different social categories—such as gender, race and religion. This could help show the gendered and racialized effects of banning soul caps, hijabs and bodysuits from sports competitions.

5 Conclusion

While this chapter remains exploratory, it has shown that the existing international human rights law provides concrete tools to address (gender) inequalities in sports, such as heterosexist and racialized clothing regulations, which remain a widespread phenomenon in international sports. The regulations examined affect both women’s and men’s competitions, but women’s bodies are especially often policed based on hegemonic gender norms. By reflecting the idea that women and men are the sole gender identities and are inherently different, complementary and in a hierarchical relationship to each other, the clothing regulations further reinforce hetero-, cis- and endosexnormativity and foster the invisibility of non-binary persons. As shown in several examples, gender norms often also intersect with norms on race and religion in sports, creating intersectional forms of discrimination.

Even though the CEDAW Committee has not yet considered heterosexist clothing regulations, I have shown that the Convention’s broad definition of discrimination bears the possibility of addressing these rules within the CEDAW framework. CEDAW’s strong due diligence obligations allow scrutinizing the obligations of states to ensure that international sports federations do not harm athletes and result in unjustified discrimination based on gender. Moreover, CEDAW prohibits direct and indirect forms of discrimination and obliges states to work towards ensuring substantive gender equality or equality in practice. It further creates the obligation to eliminate gender stereotypes, which is highly relevant for addressing gendered clothing regulations in sports, and the Committee increasingly considers intersectional forms of discrimination in its work.

This chapter set out conceptual considerations for using CEDAW to tackle gender inequalities in sports. The future will show how effective the protection of athletes’ rights will be through existing international human rights instruments, such as UN Treaty Bodies. Until more clarity on the relationship between sports law and human rights law exists, women athlete activists, such as Zahra Lari and the Norwegian beach handball team, will continue to contest the imposition of heterosexist and racialized body norms that pervade international sports.