International e-Conference on Gender Justice by

CLRS

Paper Title: GENDER DISCRIMINATION IN SPORTS: THE PROBLEM

WITH SEX TESTING

Authors: Author 1- Animesh (email: animeshomp@gmail.com, Phone:

+919560658196, Institution: Damodaram Sanjivayya National Law University)
Author 2- Aishani Chakraborty (email: misti1205@gmail.com, Phone:
+917980279527, Institution: Damodaram Sanjivayya National Law University)
GENDER DISCRIMINATION IN
SPORTS: THE PROBLEM WITH SEX
TESTING
ABSTRACT

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 is restricted (in theory) whenever
sporting events are limited to a single sex, which is generally the case, as well as when events are
limited to mixed-sex teams of defined composition (e.g., most pairs events). Practice has varied
tremendously over time, across borders and by competitive level. Issues have arisen multiple
times in the Olympic games and other high-profile sporting competitions, for example
allegations that certain male athletes attempted to compete as women or that certain female
athletes had intersex conditions that gave unfair advantage. The paper discusses the current
medical practice of 'gender verification' in sports from an ethical point of view. It takes the recent
public discussion about Indian athlete Dutee Chand, and South African 800 m runner Caster
Semenya as a starting point. At various levels of athletic competitions Chand, and Semenya were
challenged by competitors as being a so called 'sex impostor'. This paper will also discuss the
scientific integrity of the rules provided by IAAF for participation in female category for females
with hyperandrogenism and for female classification.
INTRODUCTION
Since women have started participating in international events, people have been looking for
opportunities to undermine them such that they become a liability for the sporting community.
When women continued to fare well in these events even after facing such discriminations,
people started to wonder if they were actually females or male in disguise. So, they started
testing “suspicious” female athletes which was just other terms to describe every successful
female athlete. The testing started with a very humiliating physical test where a group of doctors
would examine whether the athlete was biologically female, that is had female reproductive
organs. Soon this changed to chromosomal testing which determined whether the individual
possessed XX chromosomes like an average female or had any anomaly there. This effectively
brought into question diseases like Down’s Syndrome, Turner’s syndrome and Klinefelter’s
syndrome which could lead to chromosomal defects. So, the most recent trend of discrimination
is based on the testosterone level where they are made to undergo a test which calculates their
blood testosterone level. Any female having testosterone level higher than 5 nmol/L (2018
Guidelines) are not allowed to participate in any restricted events. This led to a majority of the
elite female athletes who have already won medals for their countries ineligible to participate and
defend their titles at the next event. These elite athletes include all the three finalists of the Rio
Olympics, 2020. International Association of Athletes Federation (IAAF) has stated that though
their methods are discriminatory, such discrimination is a necessity in the present circumstances.
Their president, Sebastian Coe states that they want athletes to be incentivized in ordered to
make the huge commitment and sacrifice that is needed to succeed in sports. He wishes for the
athletes to aspire for excellence but fails to notice that most of the people under scrutiny has
already achieved excellence after making unsurmountable sacrifices in both their personal and
professional lives. Focused and directed athletes like Dutee Chand do not need incentives in
order the achieve success. They have already proved their worth in the sporting community and
made their country proud and would continue to do so only if they would be given opportunities
and are not looked down upon at every chance just because they fail to fit into the stereotype of
what an ideal female should look like.
It is very inspiring to see how the continuous scrutiny and discrimination of IAAF has failed to
put shackles on any of these athletes. While IAAF is thinking of different wqays to prove that
none of these athletes should be allowed to perform as females they continue to run as well as
fight for their rights in the Court of Arbitration for Sports (CAS).

BIOLOGICAL OVERIEW

Genetic sex is determined at the moment of conception that is when two gametes, a sperm and an
egg fuse together to form an embryo. In ordinary cases the haploid gametes contain 22
autosomes and one X or Y chromosome. The two gametes fuse together to form an embryo
(44+XX or 44+XY), the formal leading to the birth of a male child and the later to a female
child.
For various reasons, approximately 2% of all live births can be classified as Disorders of Sexual
Development.1

CAIS (Complete Androgen Insensitivity Syndrome) women lacks androgen receptor in the body
and therefore with the exception of internal sexual organs, they are usually anatomically female
despite being genetically male. CAIS usually come into notice when women do not start
menstruating in appropriate age. As onset of menstruation can also be suppressed by vigorous
physical training, athletic women may never realize their condition before being subjected to
vigorous testing. Whereas a normal female would have 0.3 to 1 nmol/L which is about 1/10 th the
amount present in males. Relevant athletes may have a higher level of testosterone in their body
and sometimes those levels can even surpass the levels of testosterone present in an average
male.

According to the 2018 IAAF policy having high level of testosterone could ban you from the
women’s category and thus the policy has the potential of punishing a person unaware of their
condition.

RELEVANT ATHLETES

An athlete is called a relevant athlete if she has 5α – reductase type 2 deficiency, PAIS, 17β-
hydroxysteroid dehydrogenase type 3 (17β- HSD3) deficiency, ovotesticular DSD or any other
1
James L. Rupert, Genital to Genes: The History and Biology of Gender Discrimination in the Olympics, 28:2
CBMH/BCHM 339, 342 (2011).
genetic disorder involving disordered gonadal steroidogenesis as a result of which she has been
circulating testosterone levels in blood of five (5) nmol/L or above has sufficient androgen
sensitivity for those levels of testosterone to have a material androgenising effect.

IAAF POLICY AND ITS CRITICITION

On April 2018, IAAF came up with a new policy for Female Classification (Athlete with
Differences of Sexual Development) for events from 400m to the mile, including 400m, hurdles
races, 800m, 1500m, one-mile races and combined events over the same distances (‘Restricted
Events’).2 

For being able to compete in the Female classification in either a restricted event at an
international competition or to set a world record in any competition besides International
Competition, a Relevant athlete must satisfy the following eligibility criteria:

Must be recognized by the law as female or intersex and she must be reducing her blood
testosterone level below 5 nmol/L for at least 6 months by using hormonal contraceptives. As a
special transitional provision, a Relevant Athlete who has reduced her blood testosterone level
below five 5 nmol/L for a period spanning between 8 May 2019 to 28 September 2019 will be
considered to have met this eligibility criteria to compete in the female category in a Restricted
Event at the IAAF World Athletics Championships, Doha 2019.3

She must consecutively maintain this testosterone level for as long as she wishes to perform in
either a restricted event at an international competition or to set a world record in any
competition besides International Competition regardless of whether she is performing at that
precise time.4

The IAAF medical manager is allowed to investigate at any time the athletes (by collecting urine
or blood samples from them or any other examination deemed fit) who are completing or is

2
Press Release, IAAF introduces new eligibility regulations for female classification, (Apr. 26, 2016),
https://www.worldathletics.org/news/press-release/eligibility-regulations-for-female-classifica.
3
Eligibility Regulations for the female classification (athletes with differences of sex development), 2 IAAF
athletics 1 (2019), https://www.sportsintegrityinitiative.com/wp-content/uploads/2019/05/IAAF-Eligibility-
Regulations-for-the-Female-Classi-2-compressed.pdf.
4
Eligibility Regulations for the female classification (athletes with differences of sex development), 2 IAAF
athletics 3 (2019), https://www.sportsintegrityinitiative.com/wp-content/uploads/2019/05/IAAF-Eligibility-
Regulations-for-the-Female-Classi-2-compressed.pdf.
enrolling themselves to complete in the female section in the restricted event at an Eligibility
Regulations for the Female Classification. (Athletes with differences of sex development).

That athlete must agree to provide sample for this purpose and also that any sample that she will
provide or has already previously provided for anti-doping purposes may be used for this
purpose.

CRITICISMS

IAAF with the partnership of World Anti-Doping Agency funded a study authored by sports
physician Stéphane Bermon, and Pierre-Yves Garnier, saying that the level of testosterone in
human body is directly linked to athletic performance. 5 The conclusion of the study was that
female athletes with high testosterone level have a significant athletic advantage over females
with low testosterone levels in sporting events of 400 m, 400 m hurdles, 800 m, hammer throw,
and pole vault.

This study was also used by the IAAF as a justification in the arbitration proceedings of Caster
Semenya, and Dutee Chand, and was also used in the drafting of the new rules on DSD
regulations.

A lot of scientific inaccuracies were found in the study cited by IAAF.

1. Testosterone linked to athletic performance: It is true that high levels of testosterone in human
body has a significant linkage between athletic performance, but it is not the only factor.
Anthropologist Katrina Karkazis in her book “Testosterone: An Unauthorised Biography” 6 says
that there are not only more physiological factors linked to athletic performance, like heart size,
VO2 max, but there are other factors that don’t have to do anything with physiology. Factors like
coaching, nutrition, equipment, etc. also play a vital role in athletic performance of an athlete.
Hence only levels of testosterone in body cannot be singled out as a factor for athletic
performance.

5
Stéphane Bermon, Pierre-Yves Garnier, Serum androgen levels and their relation to performance in track and
field: mass spectrometry results from 2127 observations in male and female elite athletes , BRITISH JOURNAL OF
SPORTS MEDICINE;51:1309-1314 (2017).
6
KATRINA KARKAZIS, TESTOSTERONE: AN UNAUTHORISED BIOGRAPHY 159-200 (Rebecca M. Jordan-
Young, Harvard University Press 2019).
2. Criteria for difference in gender: Again, IAAF in its study and hence in its DSD regulations is
using the factor of testosterone for differentiating between male and female, as this fallacy has
already been explained in the book by Katrina Karkazis.7

3. Flawed data used in the study cited by IAAF: In the research paper by the authors Roger
Pielke Jr., Ross Tucker & Erik Boye in International Sports Law Journal, identify significant
flaws in the data used by IAAF leading to unreliable results. Further, these failures have not been
corrected by IAAF or the academic journal which has published them, leading to a
comprehensive failure of scientific integrity. They argue that the IAAF testosterone regulations
are based on a flawed scientific foundation and that this case offers more general lessons for the
sport governance community on the importance of upholding the standards of scientific integrity
expected in other areas of policy and regulation.8

REPURCATIONS OF THE POLICY

Numerous elite athletes like Eva Klobukowska, Dutee Chand and Caster Semenye are putting
under rigorous testing for a naturally occurring hormone in their body. Though testosterone has
an influence on the athletic performance of an individual its not the only deciding feature.
Performance also depends on body type, heart size, rate of oxygen consumption as well as ability
to withstand strain to mention a few physiological factors. Apart from these there are also
numerous external factors like physical training, nutrition and coaching as well. Almost all
athletes have certain features that help them have an advantage over others in the playing field,
be it height, muscle mass, larger feet or any other factors. However, the athletes are not
discriminated on these factors but on a naturally occurring hormone. They are forced to take
external medical treatment to lower the hormone level of their body which could potentially have
harmful side effects. The plight of a few athletes who have stood up against this discrimination
are described below.

DUTEE CHAND

7
Id. at 47-72.
8
PIELKE, R., TUCKER, R. & BOYE, E. SCIENTIFIC INTEGRITY AND THE IAAF TESTOSTERONE
REGULATIONS. Int Sports Law J 19, 18–26 (2019). https://doi.org/10.1007/s40318-019-00143-w.
The story of Indian sprinter Dutee Chand is important for our conversation on the ethics of sex-
testing in sports. In June 2014 Chand has received a call from the Director of Athletics Sports
Federation of India (AFI) saying to meet her in New Delhi. She was unaware of the following
bizarre events, that were going to take place in the lying future. She had already made her
country proud by winning Gold in both 200 meter-sprint and 4x4 relay at the Asian Junior
Athletics Championships in Taipei, Taiwan. Hence, she had high hopes for Scotland. 9 But due to
the extraordinary performance shown by Chand in Taipei, there began some rumours around the
gender of Chand. IAAF (International Amateur Athletic Federation) wrote a letter to the Director
of Athletics Sports Federation of India, to set in motion a gender determination test according to
the set guidelines given by the IAAF.

Chand’s reports confirmed high levels of testosterone and androgens (Male hormones) in her
body. Chand’s hormone levels are not publicly known due to maintenance of privacy, but it was
above the threshold of 10 nanomoles per liter of blood,10 set by IAAF for female competitors.
Hence, the officials said as her hormones levels are with within the range of male competitors,
she no longer can race in the female category.11

Since this incident of gender testing, Chand has been at the center of a legal battle that not only
contests her disqualification but also, fights the discriminatory policy for gender testing measures
taken by international sports authorities like IAAF and IOC. No governing body has so
tenaciously tried to determine who counts as a woman for the purpose of sports as the I.A.A.F.
and the International Olympic Committee (I.O.C.). Those two influential organizations have
spent half a century vigorously policing gender boundary. Their rationale for decades was to
catch male athletes masquerading as women, though they never once discovered an impostor.
Instead, the athletes snagged in those efforts have been intersex women — scores of them.12

9
Ruth Padawer, The Humiliating Practice of Sex-Testing Female Athlete, THE NEW YORK TIMES
MAGAZINE (June 28, 2016), https://www.nytimes.com/2016/07/03/magazine/the-humiliating-practice-of-sex-
testing-female-athletes.html.
10
IAAF Press release, IAAF introduces new eligibility regulations for female classification, WORLD ATHLETICS,
(APR, 26, 2018), https://www.worldathletics.org/news/press-release/eligibility-regulations-for-female-classifica.
11
Andy Bull, Caster Semenya and Dutee Chand run ragged by IAAF’s moving goalposts, THE GUARDIAN (Tue
23 Jan 2018 18.14 GMT: first published on Tue 23 Jan 2018 17.00 GMT),
https://www.theguardian.com/sport/2018/jan/23/caster-semenya-dutee-chand-iaaf-hyperandrogenic.
12
Rohan Sen, Dutee Chand proud of being first athlete to fight against hyperandrogenism rule, INDIA TODAY
(September 15, 2018 UPDATED: September 15, 2018 20:24 IST),
https://www.indiatoday.in/sports/athletics/story/dutee-chand-proud-of-being-first-athlete-to-fight-against-
hyperandrogenism-rule-1340706-2018-09-15.
Finally, the CAS gave their verdict in her favour. This led to another South African athlete who
was about to be stripped of her Olympic Gold medal in 2012 rising up for her rights.

CASTER SEMENYE

Female athlete of South African nationality specializes in the middle-distance races and has
achieved outstanding success at the international level. In the 800 m event she finished first place
at the 2009-2011 and 2017 IAAF world championships and the 2012 and 2016 Olympic games.
But the new policy bans her from participating in any more races till she takes hormone reducing
drugs to reduce her testosterone level below 5 nmol/L.

Caster Semenya and Athletics South Africa (ASA) approached the Court of Arbitration for Sport
(CAS) against the International Association of Athletics Federations (IAAF) concerning the
“IAAF Eligibility Regulations for Female Classification (Athletes with Differences of Sex
Development)” (DSD Regulations).

Caster Semenya and ASA requested that the DSD Regulations be declared invalid and void with
immediate effect as they were discriminatory, unnecessary, unreliable and disproportionate 13.
The IAAF contended that the DSD Regulations do not infringe any athlete’s rights, including the
right to equal treatment, but instead are a justified and proportionate means of ensuring
consistent treatment, and preserving fair and meaningful competition within the female
classification.

They accepted that the policy was discriminatory but the majority of the panel believes that such
discrimination is necessary to ensure the ulterior motive which is to preserve the integrity of
female sports.14

CONCLUSION

From this paper, we would like our readers to know about the discriminatory policies and
regulations used by international sport institutions to disregard some female athletes and defame
them by disregarding their gender identity and categorize them as male or transgender, in order

13
Press Release, IAAF introduces new eligibility regulations for female classification, (Apr. 26, 2016),
https://www.worldathletics.org/news/press-release/eligibility-regulations-for-female-classifica.
14
Andy Brown, Scientific inaccuracies in Study used in support IAAF’s DSD Regulations,
SPORTSINTEGRITYINITIATIVE, (Jul. 13, 2018), https://www.sportsintegrityinitiative.com/scientific-
inaccuracies-study-used-support-iaafs-dsd-regulations/
to exclude them from competing in high level sports, and sometimes even in junior level. We
have to reconsider what it means to be a male or a female in a coherent, manner without the
jeopardizing scientific integrity of science of sports. It has to be asserted that females with
hyperandrogenism and transgenders are not the same and this cannot be used as a basis for
discrimination in sports. It is found by the analysis of athletes like Dutee Chand and Caster
Semenya, how unethical and inhumane procedure of sex-testing is even though there are no
alternatives been found in the scientific community for ethically determining gender of a person.
The study cited by IAAF for justification of its regulation and hence the for apparent
discrimination is that, it has compromised scientific integrity, in exchange for exclusion of some
female athletes.