Controversy Surrounds Gender Verification Testing in Sports

Akshay

Lucknow: Gender verification in sports happens to determine the sex or the gender of athletes to compete in sports which are restricted to one gender.

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The first gender verification test was issued by the International Association of Athletics Federations (IAAF), the world’s track and field governing body in 1966 in response to the fears that males, who naturally possess a physical advantage in terms of muscle mass and strength were “masquerading” as females in competitions only for women, thereby causing unfair competitions.

No governing body has so tenaciously tried to determine who counts as a woman for sports as the IAAF and the International Olympic Committee (I.O.C.). Those two influential organizations have spent half-century vigorously policing gender boundaries.

The controversy sparked when in the 1936 Berlin Olympics, the runners Stella Walsh of Poland and Helen Stephens of the United States were rumored to be male impostors because of their remarkable athleticism, “male-like” muscles, and angular faces.

After Stephens narrowly beat Walsh in the 100-meter dash and posted a world record, Stephens was publicly accused of being a man. Humiliated by the allegations, Stephens was forced to submit a first of its kind “genital inspection” by the Olympic Committee to clear her of the gender fraud.

Four decades later, in an unexpected twist, an autopsy of Walsh revealed she had ambiguous genitalia.

Since the case of Walsh, many cases came into the notice of the I.O.C. In 1938, German high jumper, Dora Ratjen disguised himself as a woman by tightly binding his genitals to his body while competing in the women’s high jump at the 1936 Berlin Olympics.

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Ratjen finished fourth in the competition and later set a groundbreaking world record at the European Championships in 1938.

In the mid-1940s, the international sports administrators began with the practice of requiring the female competitors to bring medical “femininity certificates” to verify the sex.

By the 1950s, the whole idea was being discussed to eliminate the events for women, as women in the athletics arena do not justify their “feminine character”.

Female exertion violated the white middle-class ideal of femininity, as did the athletes’ “masculinized” physiques, prompting Olympic leaders to consider eliminating those events for women.

The issue of gender verification reached the public consciousness through the case of Caster Semenya, the 2008 800m World Champion was made to undergo gender determination testing. Although the findings showed that she was intersex, neither having ovaries nor a uterus but did have internal, undescended testicles.

She returned to the game after a forced year-long break from competing, she was allowed to compete in the 800m event in the 2012 Olympics.

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In 2011, the association announced that it would abandon all references to “gender verification” or “gender policy.” Instead, it would institute a test for “hyperandrogenism” (high testosterone) when there are “reasonable grounds for believing” that a woman may have the condition.

Women whose testosterone level was “within the male range” would be barred. To this there were two exceptions, firstly, the woman was resistant to testosterone effects; secondly, if the testosterone was reduced by taking hormone suppressing drugs or by removing undescended testes surgically.

The Indian sprinter, Dutee Chand who currently holds the national record in the women’s 100m sprint, was in the headlines for gender verification. The IAAF sent notice to the Indian Authority responsible for sports stating that there were doubts regarding the gender of Chand, and they also asked the Indian authorities to perform a gender verification test.

When the results of the test came, it was declared that her “male hormone” levels were too high, meaning she produced more androgens, mostly testosterone, than what most women did. Since her testosterone level was above the threshold that the IAAF set for female competitors, the officials declared that she could no longer race.

Chand for two subsequent years fought against the policy, as according to her it was discriminatory against athletes with atypical sex development.

The main reason for the dissent of Chand and the athletes and the people supporting her was that Chand has neither doped nor did anything against the law or cheated, she was being punished for something that came naturally to her and this was unfair.

The Court of Arbitration for Sport issued its ruling in the favor of Dutee Chand. The three-judge panel concluded that although natural testosterone may play some role in athleticism, just what that role is, and how influential it is, remains unknown.

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As a result, the judges said that the IAAF’s policy was not justified by current scien­tific research. The judges concluded that requiring women like Chand to change their bodies to compete was unjustifiably discriminatory.

The panel sus­pended the policy until July 2017 to give the IAAF time to prove that the degree of the competitive advantage conferred by naturally high testosterone in women was comparable to men’s advantage.

If the I.A.A.F. doesn’t supply that evidence, the court said, the regulation “shall be declared void.” It was the first time the court had ever overruled a sport-governing body’s entire policy.

The IAAF issued new guidelines in the year 2018, the rules for athletes who have ‘differences of sexual development’ apply to 400m, 400m hurdles, 800m, 1500m. 1-mile races and combined events over the same distances. (Restricted Events)

However, races less than 400m and more than 1 mile are exempted from the rules.

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The new regulations require any athlete who has a Difference of Sexual Development (DSD) that means her levels of circulating testosterone (in serum) are five (5) nmol/L or above and who is androgen-sensitive to meet the following criteria to be eligible to compete in Restricted Events in an International Competition (or set a world record in a Restricted Event at competition that is not an International Competition):

• she must be recognized at law either as female or as intersex (or equivalent);

• she must reduce her blood testosterone level to below five (5) nmol/L for a continuous period of at least six months (e.g., by use of hormonal contraceptives); and

• Thereafter she must maintain her blood testosterone level below five (5) nmol/L continuously (i.e.: whether she competes or out of competition) for so long as she wishes to remain eligible.

If any female does not want to take medication to reduce her testosterone levels, she can compete in:

• International competitions in any discipline other than track events between 400m and a mile

• Any competition that is not an international competition

• The male classification at any competition, at any level, in any discipline

• Any intersex, or similar, classification

Are the new rules discriminatory?

The debate about the new rules is that they are set up targeting the South African athlete Caster Semenya, the current 800m Olympic champion. Caster has been subjected to unfair scrutiny since 2009 when she dominated the track and field events for that distance and won by more than 2 seconds.

The rules by IAAF regarding the gender verification are no doubt wrong on many parts, firstly hyperandrogenism is natural and something which a person possesses by birth. Punishing athletes who put their heart and sweat to the sport for something they are not responsible is in itself is unfair to them.

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Moreover, the athletes have to take medications to compete, thereby disturbing their natural occurring hormone. Judging a person’s gender and eligibility on such grounds are vague and uncalled for.

There are athletes like Michael Phelps, who has a biological advantage over other athletes, and no such rules are regulating them.

Also, the IAAF has not laid down any conditions for testosterone levels in men. This means that men with low testosterone levels and men with elevated levels of the same hormone can compete in the same events.

The IAAF should intervene only if there is any kind of manipulation of the naturally occurring testosterone, and if it is not a natural occurrence.

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The new rules formed by the IAAF has been in the news for quite some time now and there have been various debates as to the gender verification rule is racist.

Though IAAF has a strong reputation for not being a racist body these rules are not helping the reputation of the Authority.

(The author is a student of Damodaram Sanjivayya National Law University, Visakhapatnam)