Legal implications of sex testing in sport

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The presence of women taking part in sports has been steadily increasing in recent decades and the gap between men and women in their interest in sport has narrowed considerably over the last 50 years. This is one of the conclusions that can be taken from the latest Women and Sport report from Repucom (Nielsen, 2016). Sportswomen such as Yelena Isinbayeva, Serena Williams and Laure Manadou have taken the baton from pioneers such as Kathrine Switzer, Nadia Comaneci and Larissa Latynina and, nowadays, almost 50% of women worldwide are interested in sport. The mass media, first television and then the Internet, have brought sport closer to society, especially to women, as attendance at sporting events was long closed to them.

Sex testing is a method of determining genetic sex by examination. Sex verification in sports (also known as gender verification, or loosely as gender determination or a sex test) occurs because eligibility of athletes to compete within a certain category is restricted (in theory). As with majority of sporting events categorised according to sex, as well as when events are limited to mixed-sex teams of defined composition (e.g., most pairs events), sex testing became increasingly popular as it was a practice which ensured rules were abided by. Nonetheless, as a practice created to ensure fairness created controversy as a humiliating practice, despite its attempt to evolve to suit modern times, its use and the way it’s enforced up to date has been put into question.

Contrary to common belief, sporting organisations have relied on scientific and medical professionals to provide judgements on an athletes eligibility to compete in women’s national and international sporting events since 1936 (not, as is popularly suggested, the 1960s). According to a Time magazine article in 1936, two “hermaphrodite” athletes were a threat to the future of women’s sports, this was British shot putter and javelin thrower Mary Louise Edith Weston and the Czechoslovakian runner Zdenka Koubkova who had each been born with dual biological sex traits. Despite both these athletes retiring prior to the 1936 Olympics, Avery Brundage, President of the International Olympic Committee, “demanded examination for sex ambiguities in all women competitors.” Thus, the sex test was born.

Caster Semenya is a South African middle-distance runner with an Olympic gold in 800m from the 2016 Summer created controversy as begun circulating that the south African runner took on a “masculine”. Although she was cleared to continue competing in 2009, in April 2018, the IAAF announced new “differences of sex development” rules that required athletes with specific testosterone levels of 5 nmol/L and above to take medication to lower their testosterone levels, effective beginning 8 May 2019. Due to the narrow scope of the changes, which also apply to only those athletes competing in the 400m, 800m, and 1500m many people thought the rule change was designed specifically to target Semenya.

Although Caster Semenya’s is legally female, was from birth raised as female and identifies as a female the Court of Arbitration in Sport upheld a rule requiring athletes with certain forms of what they call “disorders of sex development” (DSD) – more commonly called “intersex” conditions – to lower their testosterone levels in order to still be eligible to compete as women in certain elite races. This means Caster Semenya will need to take hormone-lowering agents, or have surgery, if she wishes to continue her career in her chosen athletic events.

On 19 June 2018, Semenya announced that she would legally challenge the IAAF rules. On 1 May 2019, the court of Arbitration for sport rejected her challenge, paving the way for the new rules to come into effect on 8 May 2019. 

Similarly Dutee Chand, a 100m sprinter, was similarly dropped from the 2014 common wealth games last minute after the Athletic Federation of India stated that hyperandrogenism ( a medical condition characterized by high levels of androgens in females) made her ineligible to compete as a female athlete.

Chand appealed to the court of arbitration of sport and was represented by the Canadian law firm Davies, Ward, Philips & Vineberg, LLP. The IAAF policy on hyperandrogenism was suspended following the case of Dutee Chand v. Athletics Federation of India (AFI) & the International Association of Athletics Federations (IAAF), decided on July 2015. The ruling found that there was a lack of evidence provided that testosterone increased female athletic performance and notified the IAAF that it had two years to provide the evidence. This effectively removed the suspension of Chand from competition, clearing her to race again.

Overall, in past decades, while its needless to say the court of arbitration of sport have developed sporting laws imenseley, many of their recent decisions have stirred up great controversy showing they still have far to go to ensure sports remain fair. 


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One Reply to “Legal implications of sex testing in sport”

  1. Very interesting article Yemi Mary, well done.

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