22 May 2020 - Article
In this series we are looking at some of the challenges faced by women’s sport but also celebrating the achievements of female athletes and opportunities for further growth and development. At the very same time a fierce debate is continuing in Switzerland between Caster Semenya, Athletics South Africa and the IAAF as to what criteria define who can and cannot compete in women’s sport.
History of sex testing in sport and modern developments
Whilst women did not feature at all at the ancient Olympic Games, women have been allowed to compete in all but the first edition of the modern Olympic Games with the number of events increasing substantially over time. In most sports men and women compete separately and this is generally considered necessary due to the significant performance advantage male athletes have over their female counterparts.
This separation allows both genders to excel. However, since the 1950s there have been attempts to test participants to ensure their eligibility to compete in the face of suspicion that male athletes were competing as women. These tests were rudimentary; first a visual examination and then in later years chromosome analysis, before being abandoned altogether in the 1990s.
Our modern understanding of gender appreciates that gender is not binary but is a spectrum and that previous testing methods were inadequate. Nevertheless, in order to have the category of women’s sport, it is necessary to define who can participate in that category.
On the one hand there are those who argue that legally recognised gender is the only relevant factor and, specifically, those individuals who have been legally and socially considered female since birth should not be precluded from competing as women just because some later medical test uncovers an intersex condition or difference of sexual development (‘DSD’). There is a related school of thought that queries why DSD is such a focus of attention, when controlling or limiting other physical conditions that confer a competitive advantage (for example, oxygen processing) on either men or women is not considered necessary. Testosterone is not the only differentiating factor between male and female athletic performances.
On the other hand are those who argue that allowing individuals who have all, or nearly all, of the advantages of male athletes to compete in the female category is simply unfair. Eligibility they say, must be determined according to biology. That however is a far from simple proposition when translated into practical steps.
The IAAF DSD Regulations
At the heart of the current dispute are the IAAF’s DSD Regulations which apply to female athletes who have XY chromosomes and are able to benefit from the additional testosterone in their bodies that comes with this. This is one of many different types of DSD and occurs in around 1 in every 20,000 people in the general population. However, it is estimated that amongst female elite athletes the proportion is 7 in every 1,000 (i.e. 140 times higher) – which it is argued tends to show an advantage.
Individuals with this condition are born with internal testes but with external genitalia that are not fully masculinised. As a result, the level of testosterone available is much higher and this is widely considered to give a performance benefit. This is however disputed and it is clear that the level of advantage is not settled and could vary from event to event. Some individuals may have conditions that do not enable them to use this testosterone (androgen insensitivity) and they do not fall within the IAAF DSD Regulations as a result. However, a key feature of the recent Court for Arbitration for Sport (‘CAS’) decision was a discussion about how to determine whether or not there is any androgen insensitivity. This cannot be determined from a blood test alone but requires an assessment based on a physical examination, which could be distressing or degrading.
If an individual falls within the scope of the DSD Regulations, they will be required to take medication (it is suggested oral contraceptives) to reduce their testosterone levels to bring them down to levels closer to the normal female range in order to compete in certain specified events (currently clustered around 400m, 800m and 1500m events).
Semenya, having taken the required medication for a number of years, refused to continue taking the medication after another athlete, Dutee Chand, effectively won her case against the IAAF. However, the implementation of the new DSD Regulations have resulted in her being banned from competition at elite level unless she takes the medication, which she has stated she will not do. Semenya, backed by Athletics South Africa, appealed to the CAS to have the DSD Regulations overturned.
The recent CAS Decision
The issues in the decision are complex and the science highly disputed. Ultimately the CAS found that the IAAF’s DSD Regulations were discriminatory but were necessary, reasonable and proportionate. They did not however go as far as to accept the IAAF’s suggestion that an individual had a ‘sports sex’ but preferred to focus on matters of eligibility to compete in a particular event.
The CAS did however express concerns about the DSD Regulations and in particular how they may be implemented and the need for them to develop and evolve in light of new evidence. In particular the panel were concerned about the strict liability nature of the requirement to reduce testosterone levels below a particular threshold and whether it was possible for an athlete to be sure that they would achieve the required reduction even if they followed all of the treatment protocols. Further, the panel expressed concerns about the basis for applying the regulations to certain events, such as the 1500m, where evidence of performance advantage was ‘sparse’.
This decision was appealed to the Swiss Courts who have cleared Semenya to continue competing pending hearing of that appeal. An urgent appeal against that decision by the IAAF has not been upheld.
There will clearly be further hearings in the Swiss Courts. Any substantial changes to the DSD Regulations could also potentially result in a further appeal to the CAS. In the meantime, a wider question remains as to whether it is possible and reasonable to set a point on the gender spectrum to divide men and women for the purposes of competitive sport, or whether only legal and social factors should be considered. This debate will have wider implications for a broader category of athletes than those with DSD and will also affect trans athletes, where current regulations in certain sports also require affected athletes to take testosterone reducing medication.
It is also clear that scientists in this field are not all in agreement. Carrying out further research will always be hampered by the relatively small number of DSD athletes and the necessity to consider any advantage in relation to each sport and event. It is quite conceivable that another situation will arise where sports are forced to react and create rules in the face of concerns raised about a particular athlete. Meanwhile it is clear that the way Semenya and Chand were treated throughout the process and the level of information that was released about them was itself problematic. This inflamed an already sensitive situation and arguably involved more public discussion of personal information than was necessary for a proper resolution of the issue.
However the appeals are decided, sport needs to find a better way of addressing the impact of DSD. This may be achieved by creating proportionate rules based on scientific evidence and finding a way of implementing those rules in a way that does not unfairly affect an athlete who has been competing in good faith for a number of years. Or it may be achieved is by adopting a more socio legal approach to defining eligibility for women’s sport.
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