Women Athletes Subjected to ‘Sex Testing’ are Faced With Impossible Choices
The cases of Caster Semenya and Dutee Chand shed light on the invasive medical procedures endured by intersex athletes around the world.
Since she first won an international track event in 2009 at age 18, the South African middle-distance runner Caster Semenya has had every aspect of her body subjected to scrutiny. Semenya is one of many women around the world targeted by regulations that require women with naturally higher-than-typical levels of testosterone to submit to so-called sex testing and undergo unnecessary medical interventions to reduce hormone levels in order to keep competing.
Her case isn’t an isolated incident: After being dropped at the last minute from an international competition in 2014 because sports officials deemed her testosterone too high for a woman, the Indian sprinter Dutee Chand challenged the regulations at the Court of Arbitration for Sport in Lausanne, Switzerland. Chand won her case, but World Athletics, the international governing body in global track and field, fought back with a similar regulation targeting middle-distance runners like Semenya. Those regulations were revised again during a case taken to the same court in 2019 by Semenya, who then lost. The new regulations remain in force for now—and they continue to do lasting damage to the careers and dignity of competitive athletes globally.
A new report on “sex testing” of women athletes published by Human Rights Watch in December 2020 sheds light on a decade of experiences from those who have been directly affected by this discriminatory practice. The report followed Semenya’s announcement on Nov. 17 that she was taking her case to the European Court of Human Rights. It lays out in detail the human rights violations and personal harm caused by World Athletics’ regulations to women with naturally high testosterone, or “differences of sex development,” a medicalized term for intersex variations. People with any of a range of intersex variations have innate sex characteristics that have developed in ways that are atypical, and this puts them at particular risk of discrimination and other harm.
Moreover, women athletes from Africa and Asia are disproportionately harmed by World Athletics’ “sex testing” regulations, as they are less likely to have undergone routinized nonconsensual “normalizing” procedures—such as genital surgery and removal of reproductive organs—that are often performed on infants and children with such variations in higher-income countries.
Community organizations and United Nations bodies have condemned these procedures as violations of human rights when they take place under coercive circumstances or before someone can meaningfully consent—but the sporting regulations impose those same medical norms and interventions on women who have previously escaped them.
The report highlights how these athletes are scrutinized according to white, Western norms of femininity; expectations about gender presentation and behavior, body hair, and genital appearance all bear a history of racialized assumptions. At the same time, they are given little information about their options and the harms of such medical interventions. These circumstances reflect the complex web of impossible choices the athletes are subject to—choices that damage careers and lives.
So why does World Athletics impose these regulations? The rationale appears to be rooted in the notion that testosterone is the key to improved athleticism and performance differences. Policymakers argued that women with natural testosterone above a certain, scientifically arbitrary, threshold have an advantage over their fellow competitors. But this ignores a broad and complex literature on the relationship between testosterone and athleticism that defies such simple claims and undermines their stated rationale. There is no single attribute that makes a great athlete; it’s a combination of genetics, training, resources, psyche, and so much more. The rationale also raises ethical concerns about treating some women differently from others.
In a 2018 academic article, we highlighted the ways in which testing women athletes’ testosterone levels violates the dignity and privacy of athletes. Those ensnared by these regulations are subjected to unnecessary medical assessment and procedures—such as physical examinations of genitals, testing that can include imaging of internal organs, and chromosomal analysis. Depending on the results of these exams, they are then told that the only permissible ways they could compete are in the men’s category or in a heretofore hypothetical third-sex category. Alternatively, they could challenge the regulations, switch to competing in different events not subject to the regulations, or exit competitive sports altogether.
But outright resistance to the testing is seen as futile. As one athlete told Human Rights Watch: “I was told if you don’t, you are going to be stopped from running.” Asked if she wanted to undergo the tests, she said: “If I had said ‘No’ they would have told me, ‘You have to.’ You have to. You have to. You have to.’ … You don’t have any other choice.”
In all of these circumstances, athletes are given the false illusion of choice among an impossible set of alternatives. If their testosterone levels are found to exceed a specified threshold, these athletes must undergo unnecessary invasive medical interventions, such as taking drugs or having surgery to lower testosterone levels. And undergoing these medical procedures can have their own severe side effects—such as fatigue, weakness, and sleep disturbances—which can be debilitating for everyone but especially athletes. Surgical options not only require lifelong hormone supplementation but can also compromise fertility. In some cases, these options fuel misconceptions about women’s bodies and have influenced the athletes to question their own identities.
What’s more, the options to compete with men or in a third-sex category are best characterized as a stigmatizing red herring. Women subjected to these regulations are women, whose lifelong legal and social status should be respected. If an athlete does decide to compete in other athletics events, each switch requires a unique strategy, training regimen, and skill set, among other things. Halting competition, or quitting sports entirely, can lead to economic hardship, humiliation, and harm to mental and physical health.
If an athlete rejects each of these options, then a formal legal challenge is yet another possible path. Finding a forum for a legal challenge is complex as few courts have jurisdiction over World Athletics, a private association located in Monaco. The Court of Arbitration for Sport is tasked with hearing legal challenges to sports regulations.
Cases can cost upward of $1 million, an amount out of reach to affected women athletes who come from lower resource nations and backgrounds; the intersex organizations that advocate on issues such as these are similarly under-resourced. Moreover, the venue further limits access to effective remedy as the Court of Arbitration for Sport has a narrow scope for review that does not include international human rights law. Legal action also demands that athletes submit to public scrutiny of their most intimate private characteristics.
As Annet Negesa, a Ugandan runner who was ruled ineligible under the regulations and coerced into a medically unnecessary surgery, put it: “The regulations are a trap.”
The decades-old debate over sex testing of women athletes is tiresome and inherently sexist. Community organizations, the World Medical Association, U.N. High Commissioner for Human Rights, and now Human Rights Watch have each confirmed the harms that the regulations inflict, and they have called for them to be abandoned.
These are not the hypothetical damages of medals never won, but the actual damage of wounded bodies, livelihoods and life purposes stolen, identities and social and legal status litigated. A better approach would be to accept the inherent and natural diversity of women and amend the systems that both create sporting regulations and adjudicate them, to ensure that the human rights of athletes are fully respected.
Morgan Carpenter is a bioethicist and co-executive director of Intersex Human Rights Australia.