On November 16, 2021, the International Olympic Committee (IOC) released its Framework on Fairness, Inclusion and Non-discrimination on the Basis of Gender Identity and Sex Variations (the “Framework”). This post will highlight some of the inconsistencies between the Framework’s principles and World Athletics “2018 Eligibility Regulations for the Female Classification (Athletes with Differences of Sex Development)” (“DSD Regulations”).
seeks to promote a safe and welcoming environment for everyone involved in elite-level competition, consistent with the principles enshrined in the Olympic Charter. The Framework also acknowledges the central role that eligibility criteria play in ensuring fairness, particularly in high-level organised sport in the women’s category.
The IOC is explicit that they are not creating rules and regulations. Instead, the Framework is meant to help sporting organizations, like World Athletics, develop criteria that are applicable in their context, like elite-level track and field. That said, the principles set out in the Framework call into question the legitimacy of World Athletics’ DSD Regulations, and begs the question: will World Athletics revoke them?
Before highlighting the inconsistencies between the Framework and the DSD Regulations, a bit of context. World Athletics (formerly the IAAF) is the governing body for the sport of athletics (e.g. track and field). They have been regulating who is eligible to participate in the “female” category at elite-level competition essentially since the beginning. Most recently, their regulatory efforts have used testosterone levels to define who is eligible to compete in the female category. Initially the threshold was set at 10nmol/L, but that was lowered to 5nmol/L in the DSD Regulations. Athletes who are identified (through invasive physical and mental assessments) to have differences of sex development and testosterone levels above 5nmol/l must reduce their testosterone levels to compete in the female category in middle-distance running events.
The DSD Regulations were created in response to the Court of Arbitration (CAS) for Sport suspending the 2011 IAAF Regulations Governing Eligibility of Females with Hyperandrogenism to Compete in Women’s Competition, following a complaint by runner Dutee Chand. Chand successfully argued that the 2011 Regulations were prima facie discriminatory and that World Athletics failed to adduce sufficient evidence to conclude that testosterone increased female athletic performance such that participation in female events was unfair. The DSD Regulations rely on two scientific “studies”, BG17 and BKHE18, to conclude that testosterone increases athletic performance for female athletes in middle distance running events (400m to 1mile) such that regulation is necessary to achieve “fairness” in the sport.
Caster Semenya, a South African runner and multi-Olympic and World Champion middle-distance runner, challenged the DSD Regulations to CAS in 2018. Joined by Athletics South Africa (her National Federation), Semenya argued that the DSD regulations were discriminatory, unreasonable, unnecessary, disproportionate, and arbitrary. Although CAS had some concerns with the regulations, it ultimately rejected her challenge. Her appeal to the Swiss Federal Tribunal was also dismissed. Her case is currently before the European Court of Human Rights (ECtHR).
Back to the inconsistencies between the DSD Regulations and the Framework. The Framework establishes 10 principles that:
should be taken into consideration by International Federations and other sports organizations when exercising their responsibility in establishing and implementing eligibility rules… ensuring safe and fair competition in the context of inclusion and non-discrimination on the basis of gender identity and sex variations.
Although the IOC states the Framework should be considered as a whole, this comment focuses on principles 1 to 3, 5 to 7, and 9. Principle 1 is the inclusion principle. It outlines that everyone should be welcome and able to participate in sport “safely and without prejudice” and that the sporting environment should be welcoming to people of all gender identities. It also states that where eligibility criteria are established, this should be done in a manner that respects the principles set out in the Framework. Because the DSD Regulations set out eligibility criteria, it should be reviewed for consistency with the Framework. As will become evident, the DSD Regulations oppose safety and inclusion because they single out athletes with DSD and subject to them to unnecessary medical intervention.
Principle 2 prioritizes athlete’s physical, psychological, and mental well-being in establishing eligibility criteria, and the need to prevent negative impacts on athletes through the design, implementation, or interpretation of eligibility criteria. As Semenya argued at the CAS, the DSD Regulations, and gender regulation in sport more broadly, cause severe harm. They exclude Relevant Athletes from competing in female events; they force women to undergo intrusive medical assessments, including measuring the size of their clitoris. Women will suffer psychological harm as a result of being stigmatized and labelled; women will most likely face public scrutiny since it is “virtually certain” that cases will become publicly known; and the Relevant Athlete will likely undergo medical treatment that has adverse mental and physical health risks, including cardiovascular disease, sterility, depression, fatigue, osteoporosis, muscle weakness, low libido, and metabolic problems. As a result, the athlete may require life-long hormone replacement treatments.
Principle 3 addresses non-discrimination. Eligibility criteria should not “systematically exclude” athletes based on their gender identity, physical appearance and/or sex variations. Further, “no athlete should be subject to targeted testing because of, or aimed at determining, their sex, gender identity and/or sex variations.” The DSD Regulations explicitly violate this principle. First, the common basis for a complaint that an athlete should be investigated for compliance with the DSD regulations is appearance—typically where the athlete’s appearance does not conform with the ideal of “western femininity”. Second, the regulations explicitly target and seek to identify athletes with DSD, which is classified as a sex variation. Third, testosterone regulation is a subset of the broader gender-regulation context, which has historically been about identifying who is/is not a woman.
Principles 5 and 6 speak to perceived athletic advantage and the need for evidence. Principle 5 requires that no athlete is excluded from participation based on an “unverified” competitive advantage and that athletes should not be deemed to have an unfair advantage until evidence determines otherwise, in accordance with principle 6, which sets evidentiary standards. The evidence should be based on “robust and peer reviewed research” that demonstrates a “consistent, unfair, disproportionate competitive advantage” that “exists for the specific sport” being regulated. BG17 and BKHE18, the two reports said to support the DSD Regulations, were not peer reviewed because the authors would not release the full dataset. They have been highly criticized, including by the World Medical Association, as being “highly flawed,” “weak,” and “clearly unreliable.” The studies were also performed by doctors associated with World Athletics, which is a conflict of interest.
Principle 7 relates to health and bodily autonomy. First, no athlete should be “pressured… to undergo medically unnecessary procedures of treatment to meet eligibility criteria.” World Athletics has a history of pressuring athletes to undergo treatment, including unnecessary surgical interventions. The most common way for athletes to maintain their eligibility is through oral testosterone suppressants. World Athletics successfully defended using oral contraceptives for this purpose at CAS. Although discriminatory, CAS ruled that the use of oral contraceptives was not disproportionate because there was insufficient evidence to show oral contraceptives alone caused social, mental, and psychological problems, and because the side effects are “not different in nature to those experience by the many thousands, if not millions, of other XX women, who take oral contraceptives.” CAS is not saying there are no side effects to the medically unnecessary treatment, just that women experience similar side effects in other contexts (importantly, not related to sports participation, but done for legitimate medical reasons like preventing pregnancy). Second, athletes should not be required to undergo gynaecological or other invasive physical examinations aimed at determining their sex, sex variations, or gender. The DSD Regulations explicitly require gynaecological and other physical examinations to determine whether athletes have DSD.
Finally, principle 9 addresses the right to privacy. It precludes the use of an athletes’ medical information, including testosterone levels, for purposes that are not disclosed to the athlete at the time of collection. For example, where medical information is collected for anti-doping purposes, it cannot be used to determine testosterone levels for non-anti-doping purposes, like determining whether an athlete is Relevant Athlete under the DSD Regulations. Again, the DSD regulations explicitly contravene this principle. Not only did BG17 and BKHE18 use samples obtained for anti-doping purposes to conduct their studies, but the DSD Regulations state that samples collected for anti-doping purposes are a reliable source to trigger an investigation into whether an athlete is a “Relevant Athlete under the Regulations.”
This is not an exhaustive assessment of how the Framework interacts with the DSD Regulations. That will follow in due time. However, this brief overview does highlight numerous inconsistencies between the two. In addition to Semenya’s human rights complaint, the United Nations identifying various possible human rights violations in the DSD Regulations, and the World Medical Association demanding their the immediate in 2019, the inconsistencies identified here emphasize that World Athletics should suspend the DSD Regulations.