2026 05 12 CLEAN transcription Matteo Winkler podcast

INTRO
Hello and welcome to this latest HEC podcast, my name is Daniel Brown. Today, Breakthroughs exchanges with this extremely productive academic:
MATTEO WINKLER: My name is Matteo Winkler. I am an Associate Professor in the Law Department at HEC Paris and the Academic Director of L3M1 in the Grande École program at HEC.

MIKE: Yes, today’s Breakthroughs podcast zeroes in on the latest research of Matteo. It’s certainly rich and one of the topics we’ll be discussing with him centers on this:
YOUTUBE MEDLEY 01
Fichier audio
01 START youtube mix Beyond Binaries.mp3
Transcription
Trans people lack access to basic rights. Just imagine you look very differently from your picture on your ID. This creates barriers at every step in your life.
A landmark ruling this week from the European Court of Justice. It requires EU member states to legally recognize gender identity changes made in other countries.
The idea that people sort of outside of the gender binary or challenging the gender binary all need to look a certain way, it's a really lazy piece of journalism.
You can be assigned female at birth and you can be non-binary and you can wear nothing but pink float dresses. I don't have to drop the trappings of femininity or whatever in order to try and be non-binary or even to try and be gender neutral because what is gender neutral right? Everyone's idea of gender neutral is actually just like masculine.
I also identify as transfem and transfeminine but it was a femininity that wasn't assigned to me above.
Taking femininity away from the body, the sort of really femmeverbic attitudes I had when I was like a baby queer. was that if I want to be real, I have to be less femme. Like I shaved all my hair off and it was very like, I need to rid myself of this because everything that's feminine is like weakness.
Femme phobia, I guess, is like it's linked to misogyny, obviously, but it's a dislike of the like.



Sfx 
DANIEL BROWN: I’m just reaching office number 116 of the S building. That’s where Matteo Winkler, who you heard earlier, is based. We have plenty to discuss since we last exchanged for two previous Breakthroughs podcasts, which you can still find, by the way, on all major platforms.
This time round, we’re going to start with something very much in the news: Matteo’s latest work on the legal history of non-binaries, right at a moment when Italian courts are grappling with this question. I’ll also be talking to Matteo about his book The Dark Side of Arbitration before ending our conversation with the latest developments in the Caster Semenya case, which centers on gender politics in sport.
So here we go for what’s always a lively and informative exchange.
________________________________________
BEGINNING OF INTERVIEW
DANIEL BROWN: Hello, how are you? Okay, I’m on time.
MATTEO WINKLER: Good to see you.
________________________________________
PART ONE: THE LEGAL HISTORY OF NON-BINARIES
DANIEL BROWN: Matteo, as I was telling listeners before I arrived at your office, I’d like to kick off with your latest publication, which is called An Untold Legal History of Non-Binaries. And as I said earlier, it is a topic very much in the news.
Just some background to start with: after Italy struck down limits on lesbian parenthood in 2024, Europe’s human rights court insisted that adoption is good enough. In your article, you push back against the idea that non-binary identities are something new. Why is that assumption so persistent, and why does it matter legally?
MATTEO WINKLER: Before answering, I would like to clarify a couple of aspects.
I built the article based on judgments rendered by the Constitutional Court of Italy, alongside many other judgments delivered by constitutional courts, supreme courts, and even the European Court of Human Rights, about the existence of genders outside the male-female binary.
The question I ask is whether courts are wrongly treating this as a new issue - something disruptive to the bureaucratic systems that most nations have built around the idea that there are only two sexes or genders: male and female.
The proceedings before the Italian Constitutional Court were relatively simple. There was a person who had initially been identified as male in childhood and who later sought legal recognition of a non-binary identity because they no longer identified strictly as either male or female.
The court dismissed the case, saying that in the Italian legal system there is no sex or gender beyond male and female.
But that immediately raised a historical question for me: has it always been the case that there are only two genders? Or have there been societies — including in the Western world — where additional genders were recognized?
In the article, which was published in the Italian Law Journal, I show that many cultures throughout history, including Western cultures, did not necessarily conceive of sex and gender as binary.
DANIEL BROWN: For example?
MATTEO WINKLER: In Roman and Greek culture, for example, when children were born with genitalia that did not correspond clearly to male or female categories, this was often considered a bad omen. In Roman society, such children were sometimes killed by being abandoned at sea in wooden crates. This practice reflected a political need. Roman society depended on reproduction and military expansion. The state needed men capable of impregnating women and women capable of reproduction. Reproductive capacity was linked to visible genital presentation at birth. This thinking endured through the Middle Ages and into what Michel Foucault called the modern age, when scientific and medical approaches began to dominate.
At that point, doctors increasingly became the authorities responsible for determining sex. What had once been described as hermaphroditism later became classified medically as intersex variation. One of the key lessons from this history is that biology is far more complex than we often assume. Whenever we appeal to biology or nature, we should be careful not to impose simplistic mental frameworks onto realities that are much more complicated.
From the 1950s onward, medicine often tried to erase sex variations by surgically or socially assigning children to one binary sex or the other. This was not a human-rights-friendly approach.   Because we are talking about children, this raises profound ethical questions about how societies respect individual aspirations and identities without violating human rights.
Youtube EXTRACT 02
https://www.youtube.com/watch?v=w70-UOeWj0o
Gender beyond the binary
The Guardian  28 juil. 2017
Five non-binary people discuss their experience of life liberated from restrictive gender norms and definitions. They tell us about the difficulty that society has with their resistance to its attempts to compartmentalise and define people 
DANIEL BROWN: Matteo you show that historically legal systems did not really recognize a third category but, instead, forced people back into male or female classifications. Is that still what the law tends to do today?
MATTEO WINKLER: That is a complex question.
One important element is colonialism. Take the Hijra communities in India. Many Indian students I teach at HEC Paris immediately recognize these references because Hijras have existed within Indian society for centuries. The Hijras formed a rich and complex cultural community dating back two or three thousand years — until the British colonial administration arrived. The British imposed a rigid binary framework and used the law as a colonial tool to marginalize and criminalize Hijra communities. They pushed them into poverty and persecuted them because people who did not fit neatly into male or female categories were seen as socially disruptive. This has been described as an “epistemicide”: the destruction of systems of knowledge that colonial powers did not recognize as legitimate.
DANIEL BROWN: Which period are we talking about exactly?
MATTEO WINKLER: The consolidation of British rule in India took place in the second half of the nineteenth century, particularly during the Victorian era. The Hijras were targeted because they included people whom Western societies would today describe as intersex, gay, lesbian, or gender non-conforming. They created social structures and forms of solidarity that the British colonial administration considered threatening to colonial order.
Coming back to the legal question, I think one useful way to understand today’s situation is to look at recent developments in the United States. When Donald Trump returned to office in 2025, he signed an executive order entitled Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government. The order framed biology as the definitive basis for distinguishing men from women.
The problem is that biologically speaking, reproductive cells do not even exist at conception in the way the executive order suggests. Reproductive cells only develop later in embryonic development. The order places biology above all other social understandings of sex and gender. 
For me, that is deeply problematic because sex and gender are not only biological categories. They also involve social roles, ideas of femininity and masculinity, and broader questions of equality. If we anchor everything purely in biology, we reinforce hierarchies presented as natural. Law has an enormous symbolic power. What is written in law tends to become accepted socially as “truth.” That same logic now appears in recent sports regulations…. So this is the end of the story now.
________________________________________
JINGLE
MIKE KANDICE
PART TWO: CASTER SEMENYA, SPORTS, AND GENDER TESTING
YOUTUBE IOC TRANSGENDER : 
NBC News https://www.youtube.com/watch?v=xKCmYECgDYE
New IOC policy bans transgender women from Olympics
ALL RIGHT, THE INTERNATIONAL OLYMPIC COMMITTEE ROLLED OUT A CONTROVERSIAL NEW POLICY TODAY BANNING TRANSGENDER ATHLETES FROM COMPETING IN WOMEN'S SPORTS, UPENDING A DECADES LONG PRECEDENT IN THE GAMES, IT SAYS. AND I'M QUOTING HERE, ELIGIBILITY FOR ANY FEMALE CATEGORY EVENT AT THE OLYMPIC GAMES IS NOW LIMITED TO BIOLOGICAL FEMALES, SOMETHING IT WILL DETERMINE THROUGH A MANDATORY GENE TEST THAT ATHLETES HAVE TO DO JUST ONCE IN THEIR CAREER. THE NEW POLICY COMES AS THE SUMMER OLYMPICS HEAD TO THE U.S. FOR THE 2028 LOS ANGELES GAMES. AND AFTER PRESIDENT TRUMP BARRED TRANSGENDER PLAYERS FROM COMPETING IN WOMEN'S SPORTS AT

MATTEO WINKLER: The International Olympic Committee introduced new eligibility regulations in March 2026 that closely resemble the logic behind Trump’s executive order. The IOC likely wanted to avoid political conflict ahead of the Los Angeles Olympic Games. The regulations rely heavily on genetics, particularly testing for the SRY gene associated with the Y chromosome. The assumption is that if an athlete presents what are described as “biological male developments,” then that athlete cannot compete in the female category. 
But this is scientifically flawed. The SRY gene does not determine whether someone is a man or a woman. It is associated with the development of testes, but biology is much more complicated than that. We are not reducible to our genes. Athletic performance depends on countless factors: training, social conditions, opportunity, nutrition, resources, privilege, and personal determination.
If genetics become the basis for eligibility, then a person’s destiny is effectively determined by biology alone. There are also major ethical concerns. Genetics should primarily be used for medical purposes. Using them outside medicine, especially in discriminatory ways, is highly problematic. Even Andrew Sinclair, the scientist who discovered the SRY gene, has argued that it should not be used to determine sporting eligibility.
DANIEL BROWN: Just for listeners who may not know the background: Caster Semenya is a South African middle-distance runner who emerged as an 800-meter world champion and Olympic champion before becoming the target of controversies surrounding sex testing. Her career was effectively derailed by regulations introduced by governing bodies such as World Athletics. She has since become one of the leading critics of these policies and has pursued numerous legal challenges.
MATTEO WINKLER: Yes, and the case is extremely complex because it sits at the intersection of sports law, Swiss arbitration law, human rights law, and international sports governance. At its core, however, sport is about performance. 

YOUTUBE NBC cont
NBC News https://www.youtube.com/watch?v=xKCmYECgDYE
New IOC policy bans transgender women from Olympics
YEAH. SO SINCE 2004, THE IOC HAS ALLOWED TRANSGENDER ATHLETES TO COMPETE, LEAVING THE DECISION UP TO INDIVIDUAL SPORTS FEDERATIONS ON EXACTLY WHO CAN COMPETE. SO THE IOC RECENTLY REACHED A CONSENSUS THAT PROTECTS THAT, THAT TO PROTECT FAIRNESS AS WELL AS SAFETY, PARTICULARLY IN COMBAT CONTACT, COLLISION AND PROJECTILE SPORTS, THAT IT WOULD BE NECESSARY TO START TESTING FOR THIS THING CALLED THE S R Y GENE, WHICH IS ESSENTIAL FOR MALE DEVELOPMENT. IF NEGATIVE, YOU ARE ELIGIBLE. BUT THE IOC RULING ALSO ELIMINATES A MINORITY OF FEMALE ATHLETES WHO DO NOT HAVE THE TYPICAL DOUBLE X CHROMOSOME, KNOWN AS DIFFERENCES IN SEX DEVELOPMENT OR DSD, AND SO THESE RARE GENETICS CAN RESULT IN HIGHER LEVELS OF TESTOSTERONE AND POSSIBLY GREATER MUSCULAR DEVELOPMENT, GIVING SOME FEMALE ATHLETES AN ADVANTAGE. BUT IF YOU'RE A DSD ATHLETE AND HAVE TO, AND YOU HAVE WHAT'S CALLED COMPLETE ANDROGEN INSENSITIVITY, WHICH MEANS YOUR BODY DOES NOT BENEFIT FROM THAT, THAT ENHANCED EFFECT OF TESTOSTERONE, YOU CAN STILL BE ELIGIBLE. NOW, SOME HIGH PROFILE EXAMPLES
MATTEO WINKLER: Your question is interesting. Caster Semenya became trapped in this regulatory framework because governing bodies perceived her as stronger than her competitors. Initially, World Athletics tried to justify restrictions using medical concepts such as hyperandrogenism and differences of sex development. But the more diagnoses they introduced, the more unstable the legal framework became. The regulations were always justified by the idea of “unfair athletic advantage.” Yet Semenya lost races many times and did not possess the average muscular strength associated with male athletes. The scientific evidence used to support the regulations was heavily criticized. Data were not fully shared, peer review was contested, and the methodology was questioned. Semenya challenged the rules before the Court of Arbitration for Sport in Lausanne, arguing there was no demonstrated connection between the diagnosis used by regulators and actual performance. The tribunal disagreed. The litigation later reached the European Court of Human Rights. In 2023, the court initially ruled that Semenya’s human rights had been violated because she had been discriminated against on the basis of sex characteristics.
However, in a later Grand Chamber decision in 2025, the court concluded there was ultimately no violation attributable to Switzerland because of jurisdictional technicalities linked to the location of arbitration proceedings. So Semenya won procedurally but lost substantively. By then, her sporting career had effectively ended. She is now coaching young athletes in South Africa.

Today, the argument has shifted toward the idea of “protecting the female category.” This language borrows heavily from human rights discourse. The claim is that women’s rights in sport require excluding athletes perceived as having an unfair advantage. But now the focus is no longer even performance. It is increasingly biology itself. Caster Semenya describes in her memoir The Race to Be Myself how devastating it is to discover through testing that your genetics do not align with the gender identity you have lived with your entire life. The psychological impact is enormous. The IOC’s new framework repeatedly refers to protecting women and preserving fairness, but in practice it conflates intersex athletes and transgender athletes under the same biological framework. There is also a profound Global North versus Global South dimension to these policies. Most of the rules are designed by institutions and experts from the Global North, while many of the athletes affected come from the Global South and use sport as a rare avenue of social mobility. At some point, these athletes undergo genetic testing and suddenly discover that they possess a gene society now interprets as disqualifying. That discovery does not just affect their sporting career. It disrupts their entire lives.
DANIEL BROWN: Where precisely does the criticism of these regulations come from?
MATTEO WINKLER: The new IOC policy has been criticized by many scholars specializing in endocrinology, medical ethics, and sports governance. A major manifesto circulated in early April 2026 and was signed by academics, physicians, bioethicists, athletes, and advocates. The central criticism is simple: genetics do not directly determine athletic performance. The regulations are therefore scientifically flawed, ethically problematic, and legally vulnerable.
DANIEL BROWN: Stepping back from the sporting arena, what does this broader debate tell us about the way law handles sex and gender questions?
MATTEO WINKLER: Law has regulated sex and gender for centuries. Today, the insistence on strict binary classifications raises broader questions about democracy, pluralism, and the rule of law. Liberal democracies are supposed to create space for people who do not fit dominant norms. Yet we are currently witnessing a wave of erasure - both in the United States and increasingly in Europe - directed particularly at transgender and intersex identities. This happens through laws and administrative systems that define sex in purely binary terms. The implications are profound because gender markers shape everyday interactions with the state: travel, documentation, healthcare, education, and countless aspects of ordinary life.
YOUTUBE EXTRACT
Guardian voxpop 01.mp3
Transcription
00:00:00 Présentateur 1
You can be really similar to me and be a woman or a man, but I'm just not.
00:00:06 Présentateur 2
I don't identify as male or female.
00:00:08 Présentateur 3
I don't really get this. I don't really get this fixed idea of binary genders.
00:00:15 Présentateur 4
When you're growing up, people are scared of difference. It makes you criticise things that are seen as normal. I knew I wasn't a woman, but I knew I wasn't a man. And both of those words made me uncomfortable to be put on me. I knew I was kind of this weird thing. I didn't know there was a name for it.
00:00:34 Présentateur 2
Gender, like we forget, is a social construct that we've created to violently oppress people. And I think when cis people do that whole thing of like, well, why, come on, like, go away with labels. I didn't choose to be labelled. I was labelled something the minute I was born. I was labelled male. It made me feel horrible. I'm now reclaiming the agency over my body to say actually that doesn't fit.

________________________________________
MIKE: 
PART THREE: THE DARK SIDE OF ARBITRATION
DANIEL BROWN: I’d like to move to the final part of our conversation: your new book The Dark Side of Arbitration, which you co-wrote with Ugo Draetta. What exactly is this “dark side”?
MATTEO WINKLER: We are talking here about international commercial arbitration, which is very different from sports arbitration. The book examines practices in arbitration that may not necessarily be illegal or formally unethical but that are often harmful, irrational, or simply absurd. The book is structured around the various actors involved in arbitration proceedings: parties, lawyers, consultants, arbitrators, and institutions. Each group contributes in different ways to practices that damage proceedings or undermine fairness. For example, some companies pursue arbitration not for economic reasons but out of pride or ego. Executives and general counsels sometimes become emotionally invested in defeating the opposing side rather than seeking efficient resolution. Another recurring problem is poor communication between companies and their external lawyers. Arbitration only functions properly when there is constant interaction between legal counsel and the client. Yet in practice, lawyers sometimes engage in delaying tactics simply to pressure the opposing party. Even arbitral tribunals may occasionally have incentives to prolong proceedings because longer proceedings generate more fees. The book also discusses the lack of diversity within arbitration. The field is still dominated by the same relatively homogeneous group of arbitrators. More diversity would bring different ideas and perspectives into the system. If readers want to understand how arbitration really works beyond the sanitized image presented in textbooks, then this book aims to provide that insight.
38.00: 
Youtube https://www.youtube.com/watch?v=nSybxrVvTyo&t=32s 
You ….Incredibly inefficient

MIKE: Michael Lee, international arbitrator in Singapore, last year warning about the damage some arbitrators can wreak in his field…

DANIEL BROWN: Why publish a second edition eight years after the first?
MATTEO WINKLER: A great deal has changed. Arbitral institutions have updated their rules. The COVID period also forced many institutions into deeper self-reflection. Competition between arbitral institutions has increased, and arbitration procedures have become more flexible. There was therefore a need to revisit the subject and update the analysis.
DANIEL BROWN: The book is described as “part exposé, part memoir, all handbook.” I’m intrigued by the memoir aspect.
MATTEO WINKLER: Ugo Draetta and I draw heavily from our own professional experiences. His experience comes primarily from decades as an arbitrator. Mine comes from teaching, research, and my own arbitration practice. We combine those different perspectives throughout the book. The aim is not only theoretical analysis. We also wanted to show how flexibility within arbitration law can sometimes be abused by parties or arbitrators.
DANIEL BROWN: The book critiques not just individuals but the entire ecosystem. Where does responsibility really lie?
MATTEO WINKLER: I would actually speak more about accountability than responsibility. Accountability exists at multiple levels. A great deal of the problem comes from ego, misconceptions about arbitration, and the sociology of the arbitration world itself. This is not just a legal issue. It is also a social and psychological one. 
DANIEL BROWN: And is this primarily about Italy or Europe?
MATTEO WINKLER: No. The perspective is entirely international. We refer extensively to institutions such as the International Chamber of Commerce in Paris, but the analysis applies broadly across the global arbitration community.
DANIEL BROWN: Do you see arbitration continuing to evolve in the years ahead?
MATTEO WINKLER: Absolutely. New institutions, new actors, and new forms of competition will continue reshaping arbitration. This is a constantly evolving field.
DANIEL BROWN: Matteo Winkler, thank you very much.
MATTEO WINKLER: Thank you, Daniel.
TAPIS
Matteo Winkler, Associate Professor in the Law Department at HEC Paris  - and also the Academic Director of the Grande École program at HEC which welcomes students in their final year of their Bachelor’s and first years of their Master.
And that rounds it up for this month’s Breakthroughs podcast, from the HEC Paris campus. Next time round, we’re going to be talking to Seungah Sarah Lee. She’s a brilliant Assistant Professor of Management and Human Resources, based at the Doha campus of HEC Paris. And her research examines how global models and norms travel across national settings and become institutionalized within organizations and societies. 
Find out more about Seungah’s work in the next episode. Meanwhile, why not check out our other Breakthroughs on the HEC Media Hub page. Until next time, it’s goodbye from me, Daniel Brown