• Hannah Comiskey

Gender in Sports: Regulation, Ethics and the Law

As the 2021 Olympics draws closer, preparation, excitement, and pandemic-related uncertainty builds. However, for South African track runner Caster Semenya, this event marks yet another opportunity to fight her case to compete in the women’s category without medical alteration to her natural hormone balance.


Beyond the personal devastation, media scrutiny, and backlash suffered by Semenya, her case personifies the increasingly relevant issue of how men and women’s elite sports categories are defined, legislated, and enforced in the modern world. Sport, much like other important pillars of society, is currently struggling to catch up with changing attitudes toward gender. And while the struggle is valid for such a complex and sensitive issue, an adaptation in current sports regulation is inevitable and necessary in both a legal and cultural sense. This adaptation requires skillful navigation of the various ethical and legal challenges, as well as a reshaping of the idea of "fairness in sport" in order to cater to the valid arguments on both sides of Semenya’s argument.


Context


Semenya’s case represents decades of growing contention between International Association of Athletics Federations (IAAF) sports regulators and female athletes with differences in sexual development (DSD) which is characterised by elevated testosterone levels. Under the current IAAF legislation, legally identified females with Semenya’s hormonal condition, hyperandrogenism, are banned from competing in female categories below 400m if their testosterone levels exceed the designated testosterone threshold. This ban applies to Semenya in the same way as it does to transgender male-to-female transitioning athletes. In both cases, an athlete is only eligible to compete in the women’s category if they take suppressive medication to lower their testosterone levels below the threshold.


The IAAF argues this strong stance is not to cast doubt, judgment, or discrimination against transgender or inter-sex athletes but rather to protect female sport through the maintenance of distinguished sex-based categories. Crucially, regulators support that if an athlete chooses to identify as female, there is no controversy over whether that is their gender. But when it comes to eligibility to compete in sports classes, differentiating gender from sex is argued by the IAAF to be a "necessary and proportional" form of discrimination, in recognition of the athletic advantage male biology has over female biology.


Importantly, the basis for this sex-based categorisation is backed by widely uncontested science on the biological differences which underlie the disparities in female and male athletic performance. Differences in cardiac outputs, organ size, lean body mass (LBM), and glycogen utilisation between biological males and females all translate to greater power generation and, ultimately, an athletic advantage for men. In blatant terms, a middle-of-the-pack elite male athlete will most likely run faster, jump higher, and hit harder than even the most skilled and high performing elite female athletes at the top of their game.

Therefore, failure to distinguish these fundamental, biological differences between male and female baseline capacities is argued to jeopardise the integrity of women’s competitive sport. This creates an athletic environment where even the most competitive female athletes risk being pushed off podiums or out of elite sports by male biological advantages possessed by athletes identifying as female.


Semenya's Case and its Significance

Adhering to this argument, the current DSD regulations have since been upheld despite challenges from several high-profile hyperandrogenic female athletes, including Semenya. The Court of Arbitration for Sport (CAS) as well as the Swiss Federal Supreme Court dismissed Semenya’s legal fight against her ban from competing in women’s sport, maintaining the current controversial DSD regulations. By making it difficult for female athletes like Semenya to compete in the women’s category, this legislation aims to take a definitive stance on sex categorisation within elite sport moving forward.


Despite these rulings, Semenya’s case will likely not be the last gender categorising dispute in elite sports to challenge the current DSD regulations. Continuing her fight for all the "future Semenya’s", she now awaits a ruling from the European Court of Human Rights. In her application, she contests the DSD regulations based on violations of her human dignity and personality rights, as well as discrimination on the grounds of sex (and sex characteristics with female athletes with DSD compared to female and male athletes who do not have DSD).


The outcome will likely not come in time to have any bearing on Semenya’s eligibility for the 2021 Olympics. However, it will deliver a verdict that could have an influence in convincing World Athletics to adapt their strategy of policing sex categories in sport. It will also bring the issue of gender categorisation in sport back into the spotlight. Both would help to highlight a contentious issue on which current legislation is failing to provide clear answers and justification.


Limitations of Regulations and Legislation

However, in support of Semenya’s case, concerns regarding the discrimination against biological women with hormone conditions competing freely within their own sex classification are mounting. Such unease is only amplified by the minefield of conflicting evidence on the impact of testosterone in such cases. One such example is the finding of substantial overlap in testosterone levels between the sexes. Another is the significant differences in the hormonal profiles of elite athletes from the usual reference range. Both bring into question the legitimacy of testosterone as the sole biomarker used to distinguish sports classification. Additionally, this evidence further highlights the controversy of current ISAAF legislation which selectively regulates natural hormone levels in order to meet arguably arbitrary sex classifications.

Undoubtedly, this ISAAF testosterone requirement in the case of Semenya has serious ethical implications. For example, there are significant health concerns over the drastic medical interventions required to lower natural testosterone levels. Additionally, some argue that hormonal modification undermines the sporting principle of competing at a natural state without medical alteration.


Beyond these concerns, however, Semenya argues there is a lack of scientific backing for the claim that endogenously elevated testosterone levels grant hyperandrogenic female athletes a competitive advantage over other women. In the absence of concrete evidence, she argues there are gaping holes in the current justification for such targeted discrimination inflicted upon athletes like her under the current legislation.

Such sustained controversy over the current legislation has accentuated valid questions which remain over whether the testosterone rule is fit to adequately serve equality of opportunity objectives within sports. Even if we assume that testosterone grants athletes like Semenya an athletic advantage, her supporters argue that naturally elevated testosterone levels stand as a natural biological difference, in the same way as any other intrinsic biological variation which sets an elite athlete apart from the rest of the field. From Froome’s superior oxygen-carrying capacities to Bolt’s fast-twitching muscle fiberss or Phelps' freakishly long arms, these biological "mutations" are advantageous to these athletes and yet go unregulated in the way testosterone levels are in hyperandrogenic women.


Even other hormonal conditions, which boost growth hormones in acromegaly or aerobic capacity in mitochondrial variations, are unscrutinised and even celebrated in the athletic world. It would seem absurd to start regulating height in basketball players or lung capacity among athletes in general; yet to an elite female athlete at the top of her game, the prospect of taking hormone suppressants to lower her natural levels feels equally punishing. Assuming an athlete with a hormone condition can still be biologically considered female, we must question then why regulations should target this biological "advantage" above any other.


Conclusion

Whilst there remains a valid argument in protecting the integrity of women’s sport, the justification for current regulations seems to fail those intersex athletes who fall into a forgotten category. Despite prioritising sports accessibility for women within the privileged bounds of the testosterone threshold, regulations fail to protect that same accessibility right for DSD female athletes.

Amid a societal climate that is liberalising gender identity and moving toward becoming more gender-fluid, Semenya’s case has sparked a complex and sensitive debate surrounding the ethics of sex classifications within sports. Regardless of anyone’s particular position on this issue, as Samenya’s current dispute reaches the headlines yet again it stands to highlight the lack of decisive legal armour and adequate scientific backing behind the current stance of sports regulators.

As a result, current legislation must evolve to welcome both transgender and intersex athletes. To become truly inclusive it must make clear that it prioritises, respects, and values all athletes, irrespective of their gender or sex label. This would both protect female sport but also respect, accommodate, and open up new competitive avenues for transgender and intersex athletes.