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Dr. Claire Sullivan – Nov. 2011 – Gender Verification and Gender Policies in Elite Sport : Eligibility and ”Fair Play”.
November 2011
Journal of Sport and Social Issues 2011 35: 400 originally published online 15
Claire F. Sullivan
Abstract
Sex-segregated sports require governing bodies to clearly and accurately place
athletes in two categories, one labeled “men” and the other labeled “women.”
Sports governing bodies such as the International Olympic Committee (IOC) and
International Association of Athletics Federation (IAAF) used sex testing procedures
to attempt to verify the sex of athletes competing in women’s events. In 2004, the IOC introduced the Stockholm Consensus to regulate the inclusion of, primarily, male-to-female transsexual athletes, to compete at the Olympic Games. These governing bodies, and others, are dealing with society’s basic categorization of humans and thus are entangled in attempts to scientifically and medically define sex. This article will focus on the history and implications of gender-verification testing and gender policy on notions of “fair play” and athlete eligibility.
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Published February 12, 2012
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Volume 9 Issue 6 – June 2011 World Sports Law Report
Eligibility: The IAAF hyperandrogenism regulations and discrimination
The International Association of Athletics Federations (IAAF) recently released rules and guidelines designed to prevent women with elevated androgen levels from competing, which the International Olympic Committee (IOC) is also planning to adopt. Shawn Crincoli, an Associate Professor of Law at Touro Law Center, explains why the rules and guidelines are highly likely to violate non-discrimination laws in a number of jurisdictions.
There is no basis for the International Association of Athletics Federations (IAAF)’s confidence in the legal validity of its newly issued hyperandrongenism rules regulating the eligibility of women in sports1. Contrary to IAAF claims that the new rules are ‘challenge proof ’2, the hyperandrogenism regulations (HA regulations) pathologise healthy female bodies and label them as excessively androgenic – or in other words, as too masculine – and are hardly immune to challenge. There is a high likelihood that the HA regulations violate the nondiscrimination laws of a number of jurisdictions. Furthermore, there is no basis in law for the IAAF’s suggestion that failing to regulate the overproduction of androgens would open the federation up to legal attack from other female athletes, nor that such regulation is necessary to guarantee the fairness of competition for all female participants. The IAAF’s assertion that the HA regulations have been supported by ‘lawyers and human rights experts’ and thus are ‘challenge proof’ ring hollow, given the IAAF’s prior exclusion of atypical athletes, whether the differences stemmed from sex, gender or disability – a history that no independent judicial arbiter would ignore.
The primary failure is that the new rules treat men and women differently from one another without demonstrating an acceptable rationale supporting the regulation of androgens in women, but not men. This unequal treatment is the hallmark of discrimination based on sex. Second, even if one were to accept that permissible sex segregation of sport also justifies differential treatment, the HA regulations seek to discriminate against specific women on account of their naturally occurring physiology by labelling their endocrinological make-up as insufficiently female. To do so is not only an affront to the biological diversity represented in the female population; it is also an imposition of an artificial standard on women to meet a particular sex stereotype, which in some jurisdictions is a recognised sub-category of discrimination prohibited by law.
The HA regulations pathologise only women
The HA regulations have been issued to regulate women but not men. All bodies produce hormones and all bodies produce sex hormones. Androgenic hormones – the best known of which is testosterone – are produced by both male and female bodied athletes, albeit in different amounts and proportions. Despite the fact that both male and female athletes produce androgens, the HA regulations dictate that only women who produce androgens at a level deemed to be excessive are ineligible to compete with other women. There is no such adopted set of rules with respect to men who produce higher levels of androgens than other men. Indeed, there isn’t even a concept of excessiveness or having ‘too much’ when it comes to men naturally producing androgens3.
If naturally producing excessive androgens creates an unfair competitive advantage for an athlete or presents a safety issue, then the HA regulations should be adopted to govern both male and female athletes. It is telling that no such rule has been forthcoming to deem men with excessive androgens as ineligible, nor even to label men who naturally produce higher levels of testosterone as having a medical condition of hyperandrogenism. The IAAF and IOC have failed to explain why atypically high levels of androgens are acceptable within men’s sport and not acceptable within women’s sport. Equality and non-discrimination laws dictate that when distinctions based on sex are made, the burden falls on the regulating body to justify a bona fide rationale for the disparate treatment. Neither the federation nor the IOC has issued any evidence demonstrating why women with high levels of androgens should not be allowed to compete with other women, even though men with high levels of androgens may compete with other men. Merely referencing that androgens have performance enhancing effects and attributing the existence of women’s sport classification to testosterone distribution levels hardly meets this burden of proof.
The HA regulations attempt to redefine what is female
The HA regulations aim to create two classes of women: females with ‘acceptable’ levels of androgens and females with ‘unacceptable’ levels. There is no basis for this classification other than based on sex stereotypes of how many ‘male hormones’ a woman may produce before her ability to participate in sport as a woman is questioned. The rules condition eligibility on a woman possessing ‘androgen levels below the male range (measured by testosterone levels in serum)’, demonstrating that the critical determining factor is to eliminate those women who are deemed to be too much like men. The HA regulations also carve out an exception for women with medical conditions that create androgen insensitivity, because they too meet the criteria the IAAF seeks to impose: a ban on women with too much bio-available testosterone.
Androgens, despite being medically categorised as male sex hormones, are naturally occurring hormones in the female body. There is tremendous diversity in the individual amount of these hormones within the general population. A woman with lower levels of androgens or higher levels of oestrogen (female sex hormones) is not ‘more’ woman than a woman with higher levels of androgens or lower levels of oestrogen. It is rare, but not unheard of, for some women to produce more androgens then some men do.
Elite athletes do not represent the population mean in terms of biology or physiology in many respects, and some of these differences can translate to measurable advantages or disadvantages in sport. There is no such thing as a correct biological amount of androgens for a female to be a woman; there is only data that show the statistical distribution of androgens that can be produced by the female body, just as there is a population distribution of height, VO2 max4, and so forth. Accordingly, a female-bodied athlete cannot produce ‘excessive’ androgens. She can only produce an amount that is a statistical outlier, just as there are statistical outliers in other physiological categories. The federation and IOC, though, do not seek to declare athletes ineligible based on being outliers who are too tall, possess too much muscle tissue of a particular type, or have excessive lung capacity, even if these differences represent significant advantages in sport.
The IAAF’s HA regulations aim to create an artificial baseline at which a woman has too many male sex hormones to be allowed to compete with women. Since other forms of naturally occurring statistical outlier advantages are unregulated, it is clear that the regulations are another attempt to define what is female – and what is not female enough – for inclusion in women’s sport. It relies on the sex stereotype that while it is okay for women to be taller or have greater lung capacity, it is not okay for females to have ‘too much’ testosterone, based on a comparison to the average level of androgens naturally occurring in the male population.
Equality laws do not allow for this back door effort to classify some females as excessively masculine so as to be excluded from opportunities afforded to other women. It is only stereotype, not medical reality, which suggests there is something wrong or improper in a woman who possesses high levels of testosterone; and it is only stereotype, not medical reality, that would aim to define too much testosterone in women by reference to how much a man produces. Just as one may not treat men and women unequally, some jurisdictions have non-discrimination laws prohibiting policies that regulate men and women based on sex stereotypes or that condition opportunity for women based on whether they meet a particular standard of femininity.
The HA regulations may be challenged ‘as applied’
It stands to follow that an individual athlete may have a stronger ‘as applied’ case, in the event that enforcement of the rules are not even-handed and with due process. The new rules require athletes to undergo hyperandrogenism testing as a condition of their participation in sport, and the IAAF suggests that the Athlete Biological Passport system can help ensure privacy through the process. Yet as the IAAF and IOC recognise, the biological passport system is not currently in use and likely will not be for several years. Nor is the WADA testing system set up to accurately detect or sanction naturally occurring hormones.
The HA regulations list multiple routes in which an athlete may be referred as a case to an Expert Medical Panel. However, there is no one test identified which triggers the application of the HA regulations and there are no safeguards or guarantees that the application of these rules will be done in a manner than protects the athlete’s privacy and dignity rights. One method of triggering an HA investigation is ‘confidential information that is received by the IAAF Medical Delegate or IAAF Medical Manager’. In short, there is nothing in the newly issued regulations to prevent the so-called witch-hunt that can occur when a female athlete is challenged by competitors as looking or seeming too masculine. Thus, depending on enforcement, there is a chance that a female athlete could demonstrate discriminatory enforcement of the HA regulations as well.
No legal issue stems from an absence of HA regulations
The IAAF has attempted to justify the HA regulations as a necessary step in preventing legal attack from other female athletes. There is no legitimacy to this claim. It is hard to imagine the basis for a legal challenge that the IAAF or IOC failed to exclude an individual athlete. Such a challenge would have no more chance of success than if female athletes sought to have competition limited to only women under 182cm or with a VO2 max under 55 ml/kg/min.
The fact that the IAAF and IOC were concerned about the complaints of other female athletes actually cuts against these bodies should an athlete challenge the HA regulations. The inclusion of the fear of being legally attacked by other athletes as motivation or justification for the rules serves as evidence that the IAAF and IOC are wilfully complicit in a majoritarian effort to suppress and eliminate an atypical minority – or even an atypical individual – from participation in sport.
HA regulations yet another effort to ‘sex test’ women
It would be incomplete to offer an analysis of the legal landscape surrounding these eligibility rules without placing them in the larger context of IAAF and IOC policies and decision-making. Any judicial body exploring the validity of the HA regulations would also investigate where the rules came from, how female athletes have been regulated by the IAAF and the IOC previously and how the historical context of sex testing and eligibility for women has occurred.
The lex sportiva of the atypical athlete is rife with examples suggesting that the IAAF and the IOC have erred on the side of exclusion. The IAAF and the IOC have a history of running roughshod over basic human rights of athletes, particularly when forced to handle complicated questions of sex, gender or disability. Without touching upon the substance of the rulings, gross violations of procedure marred the handling of the eligibility of both South African track athletes Oscar Pistorius and Caster Semenya.
Accordingly, the IAAF’s promulgation of the HA regulations must be taken in the context of the federation forcing women to undergo the humiliation of sex testing in various forms.
While much of high performance sport separates men and women into separate classifications, the reality is that human biology is not organised quite so neatly. Already struggling with how to treat and categorise athletes who do not fit the sex binary due to intersexual conditions, disorders of sex development (DSD) or gender identity disorders, the IAAF has added fuel to the fire with the new HA regulations. The regulations are a transparent effort to short circuit the difficult process of deciding participation in women’s sport by resorting to endocrinology alone, particularly androgen production, as the determining line for deciding that a female is ‘too manly’ to compete in sport.
The IAAF’s decision to move away from its deeply problematic prior policies, including its Gender Verification Policy and the Stockholm Consensus, is to be commended. The IAAF’s desperation to shoehorn female eligibility into a hormone-based approach is not. The HA regulations seemingly resolve one issue – how to regulate male-to-female transsexual athletes consistent with laws that protect against gender identity discrimination – by trading inclusion on one instance against the exclusion of females with intersexual conditions, DSD or other atypical hormone profiles. Furthermore, the IAAF justifies this newly found reason for exclusion by rooting the very existence of women’s sport classifications in an explanation based on androgen production, a controversial and broadly generalised rhetorical move, one that seemingly grants the IAAF the ability to continue to police and pathologise women’s bodies in the name of ‘protecting’ women’s sport.
The IAAF Council has commented that its regulations should be seen as a ‘living document that will be subject to review’. The IAAF would be wise to rescind the HA regulations as an unprecedented and discriminatory policy before a judge or arbitrator forces the federation to do so. Furthermore, rather than adopting the HA regulations wholesale, the International Olympic Committee (IOC) ought to denounce and distance itself from the HA regulations, which history will only view as yet another step in organised sport’s efforts to control women’s bodies and police the femininity of women in sport.
Shawn Crincoli
Associate Professor of Law
Touro College
Jacob D. Fuchsberg Law Center, Islip, NY
scrincoli@tourolaw.edu
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Published June 2011
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Volume 9 Issue 4 April 2011
IAAF: hyperandrogenism rules are challenge proof
The International Association of Athletics Federations (IAAF) is confident that its rules on the eligibility of females with hyperandrogenism will withstand legal challenge when they are published on 1 May. Hyperandrogenism is a medical condition involving excessive production of hormones (androgens) such as testosterone.
Guidelines published by the International Olympic Committee on 5 April and the IAAF rules allow a female with hyperandrogenism to compete in women’s events ‘provided that she has androgen levels below the male range (measured by testosterone levels in serum)’. “We have received good feedback from lawyers and human rights experts”, said an IAAF spokesperson. “It is the only way to deal with this issue from a medical point of view. If we don’t have rules on this, we will also face legal challenge from other female athletes.”
Kristen Worley, founder of the Coalition of Athletes for Inclusion in Sport, questioned basing eligibility rules on androgen levels. “It flies in the face of the overwhelming evidence of the tremendous hormonal variability among humans”, she said. “This sets up many other young people for the devastating treatment that Caster Semenya experienced.”
Both the IAAF and IOC also dismissed concerns that by making an athlete who fails a hyperandrogenism test ineligible, they are posing a threat to their privacy. ‘A female athlete who declines, fails or refuses to comply with the eligibility determination process under the regulations shall not be eligible to compete in women’s competition’, read a 14 April IAAF release. Both the IAAF and IOC said there had been similar cases in the past that had been kept private. “Early detection for example under the Athlete Biological Passport will eliminate this issue”, said an IAAF spokesperson.
The IOC’s hyperandrogenism rules are scheduled for approval at the 123rd IOC Session in Durban, 1-9 July. “Once all athletes have their own biological passports, a case would be identified by abnormal hormone levels”, said an IOC spokesperson. “Since it may take some years for biological passports to become fully applicable, we will rely on the following mechanisms to trigger an androgen investigation: (i) the athlete may have symptoms that make her consult her team doctor; (ii) a pre-participation health examination may reveal there is a problem; (iii) a suspicion may arise in the doping control station; or (iv) a doping control analysis may reveal an abnormal hormone pattern”.
Goto Full Publication “Click Here”
Published May 2011
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The Wall Street Journal|Health – As Little Girls and Boys Grow, They Think Alike
March 22nd, 2011
By AVERY JOHNSON
Boys’ and girls’ brains are different—but not always in the ways you might think.
A common stereotype is that boys develop more slowly than girls, putting them at a disadvantage in school where pressure to perform is starting ever younger. Another notion is that puberty is a time when boys’ and girls’ brains grow more dissimilar, accounting for some of the perceived disparities between the sexes.
Published March 23rd, 2011
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Lancet 2005; 366: S38 María José Martínez-Patiño
Personal Account A woman tried and tested
“As I was about to enter the January, 1986, national championships, I was
told to feign an injury and to withdraw from racing quietly, graciously, and
permanently. I refused. When I crossed the line first in the 60m hurdles, my
story was leaked to the press. I was expelled from our athletes’ residence, my
sports scholarship was revoked, and my running times were erased from my
country’s athletics records. I felt ashamed and embarrassed. I lost friends, my
fiancé, hope, and energy. But I knew that I was a woman, and that my genetic
difference gave me no unfair physical advantage. I could hardly pretend to be
a man; I have breasts and a vagina. I never cheated. I fought my
disqualification.”
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Published March 22nd, 2011
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An approach to the biological, historical and psychological repercussions of gender verification in top level competitions
Martínez-Patiño et al. / Gender verification in top level competitions JOURNAL OF HUMAN SPORT & EXERCISE – VOLUME 5 | ISSUE 3 | 2010 |
MARÍA JOSÉ MARTÍNEZ-PATIÑO1, COVADONGA MATEOS-PADORNO2, AURORA MARTÍNEZ-VIDAL3, ANA MARÍA SÁNCHEZ MOSQUERA1, JOSÉ LUIS GARCÍA SOIDÁN1, MARÍA DEL PINO DÍAZ PEREIRA3, CARLOS FRANCISCO TOURIÑO GONZÁLEZ1
1Faculty of Science Education and Sport, University of Vigo, Pontevedra, Spain.
2Department of Physical Education, University of Las Palmas, Campus Universitario de Tafira, Spain
3Special Didactics Department. Faculty of Science Education. University of Vigo. Orense, Spain
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Published March 22nd, 2011
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The University of Western Ontario Medical Journal
Gender verification testing: Necessary for the integrity of international athletics, or inexcusable breach of personal privacy?
Colin Meyer Macaulay (Meds 2012), Moska Hamidi (Meds 2013),
and Karline Treurnicht-Naylor (Meds 2013)
Faculty reviewer: Dr. Cheril Clarson, Department of Medicine, UWO
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Volume 79, Number 2 – Endocrinology
Published Spring 2010
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Published March 18th, 2011
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Transgender Student-Athletes and Sex-Segregated Sport: Developing Policies of Inclusion for Intercollegiate and Interscholastic Athletics
Erin Buzuvis
Western New England College School of Law – July 20, 2010
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Abstract:
Educators have long recognized the physical, psychological, social, and educational benefits that sport provides to students. Yet today, the barriers to athletic participation that exclude the increasingly visible population of transgender students are largely ignored. With a few notable exceptions, most governing bodies of scholastic and collegiate sports have yet to meaningfully consider how to incorporate transgender students into the existing athletic structure, which for the most part divides male and female athletes into separate programs. Many athletes and sport organizers assume that transgender athletes have an unfair advantage when they compete in sports consistent with their gender identity, whether due to residual, natural physical traits associated with their natal sex (in the case of male-born, female-identified athletes), or with the hormone therapy transition (in the case of female-born, male-identified athletes). At the same time, transgender students may be excluded, discouraged, or simply feel uncomfortable participating in athletics programs that match the sex of their birth but which are inconsistent with their gender identity and gender expression. As a result, for students whose gender identity is inconsistent with their natal sex, the entire sex-segregated world of athletics may be formally or effectively off limits.
A few associations of educational institutions have responded to this problem by adopting policies governing transgender athlete participation. After describing, contrasting, and evaluating these policies, this Article concludes that the best policies are those that, as a general rule, allow athletes to participate in sex-segregated sport in a manner consistent with their gender identity rather than their natal sex. In support of this conclusion, this paper will show that neither law nor science gives clear, dispositive guidance to policymakers seeking to balance the right of transgender athletes to participate with the perceived fairness concerns related to their cross-sex participation. Thus, educational considerations should play a primary role in creating participation policies. These considerations include the physical, academic, and socio-emotional benefits to individual athletes as well as the value that diversity brings to teams, schools, and communities. To best serve these goals, which educators claim as the basis for educationally-supported athletics in the first place, policies governing secondary school and college athletics should allow athletes to participate in a manner consistent with their genuine gender identity. Any exceptions or limitations to this default rule must be made with educational values in mind, and must be narrowly tailored to demonstrable, concrete concerns about fairness.
Published February 8th, 2011
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WORLD SPORTS LAW REPORT (UK) Volume 8, ISSUE 2 February 2010 Publishes The Coalition of Athletes For Inclusion in Sport, “Alternative Policy” to Gender Verification Testing of women athletes.
Comment: An alternative to the IOC’s gender testing policy The Coalition of Athletes for Inclusion in Sport has recently provided the International Olympic Committee with an alternative to its Gender Policy. Kristen Worley, Co-Founder of the Coalition, explains why an alternative is needed as well as its proposed alternative.
Download PDF WORLD SPORTS LAW REPORT (WSLR) Feature Article “Click Here”
Published – February 2010
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Learn More About – WORLD SPORTS LAW REPORT (UK) Volume 8, ISSUE 2,
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Key References
The Coalition of Athletes for Inclusion in Sport – Position Statement
“Click Here”
The Guiding Principles for Inclusion in Sport
* Presented to the International Olympic Committee (IOC) January 7th, 2010
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CASM – Canadian Sport on the Forefront of Gender Research and Policy Development in International Sport
The Caster Semenya – IAAF World Championships Incident in Review
Written by Canadian Elite Track Cyclist – Kristen Worley
November 2009 Newsletter
Goto pages 11-13
PDF Newsletter From CASM – Click HERE
Learn More About CASM – Click HERE
AthletesCAN Releases Discussion Paper:
“Including Transitioned and Transitioning Athletes in Sport – Issues, Facts, and Perspectives”
OTTAWA (May 29, 2009) Gender diversity is increasingly visible in Canadian society, and individuals who do not reflect mainstream gender norms are rightfully seeking to participate more fully in the benefits society has to offer, including participation in sport. AthletesCAN is pleased to announce the release of a discussion paper on the topic of gender transition and sport participation. This paper is part of a larger project aimed at creating a shared understanding of gender diversity – a subject still shrouded by a profound lack of knowledge and invalid assumptions.
The Promising Practices: Working with Transitioning/Transitioned Athletes in Sport project was initiated by AthletesCAN, in partnership with the Canadian Centre for Ethics in Sport (CCES) and the Canadian Association for the Advancement of Women and Sport and Physical Activity (CAAWS), to identify and discuss the barriers that inhibit the participation of gender-transitioning and gender-transitioned athletes in sport.
Says Moira Lassen, Executive Director of AthletesCAN, “The Including Transitioned and Transitioning Athletes in the Sport discussion paper opens the door for society to reconsider the binary model of sex – that people are either female or male – and to look at ways that gender variance may be accommodated within the rules of sport, in a manner that is respectful of all athletes.”
Doug MacQuarrie, Director of Ethics and Anti-Doping with the CCES, notes “The integration of gender-transitioned athletes into sport at the elite levels presents certain unique challenges. For example, it is not clear how the hormone treatments required for gender transition can be managed under the current World Anti-Doping Code. This is just one of the issues that this paper explores.”
Copies of the discussion paper are available from the AthletesCAN website. An executive summary is also available. AthletesCAN welcomes feedback on the paper, and has provided a convenient feedback feature along with a summary of feedback collected to date. Feedback gathered will provide guidance on a policy framework and policy implementation.
AthletesCAN Press Release – May 29th, 2009
Document locations to DOWNLOAD Scientific/Literary Reviews…
AthletesCAN is the association of Canada’s national team athletes and was the first fully independent and inclusive national athlete organization of its kind in the world. Since its inception in 1992, AthletesCAN has been the voice of Canadian athletes and has worked with partners toward a fairer and more responsive sport system. As the voice of Canadian national team athletes, AthletesCAN ensures an athlete centered sport system by developing athlete leaders who influence sport policy and, as role models, inspire a strong sport culture.
The CCES is an independent, national non-profit organization. Our mission, to foster ethical sport for all Canadians, is carried out through research, promotion, education, detection and deterrence, as well as through programs and partnerships with other organizations.
Executive Director
AthletesCAN
1.613.526.4025 (main)
1.888.832.4222 (toll free)
info@athletescan.com
CASM – Canadian Academy of Sports Medicine Position Statement on Gender Verification
The position statement was prepared by the Canadian Academy of Sport Medicine (CASM) Gender Verification Subcommittee. This position statement was approved by the CASM Board of Directors as a CASM position statement in January, 1997.
The Gender Verification Subcommittee wishes to acknowledge the efforts and contribution of Dr. Marlys Misfeldt in the preparation of the initial Position Statement Draft.
It is the position of the Canadian Academy of Sport Medicine that gender verification be eliminated from all sport competition.
Published – January 1997
PDF Document - Gender Verification
*Current position statement under review, updated and revised to be republished
in 2009.
