Jasmyn Hardin, Associate Member, Immigration & Human Rights Law Review
I. Introduction
Ding, ding, ding! The bell rung after Angela Carini forfeited just forty-six seconds into a boxing match with Algerian boxer Imane Khelif during the 2024 Olympic Games.[1] This story dominated headlines as Carini later took to the media insinuating that Khelif was “biologically male” and further propagating misleading information that Khelif was previously barred for failing gender eligibility tests.[2] Khelif was, in fact, barred by the International Boxing Association (IBA) at the 2023 world championships; however, the IBA failed to provide any specifics on the nature of the test, what they were testing for, or what eligibility standards Khelif failed to meet.[3] The International Olympic Committee (IOC) later disregarded the IBA’s decision as “arbitrary” and permitted Khelif to compete in the 2024 Olympics after she complied with entry regulations.[4]
The use of sex testing in international sports has become increasingly common in an effort to regulate women’s sports.[5] International Sports Federations (IFs), which governs individual sports, have primarily focused their regulations on targeting women athletes with naturally high testosterone levels or differences in sex development (DSDs).[6] Officials often justify these policies by claiming that higher testosterone levels provide a competitive advantage in certain sports, but the science is inconclusive.[7] False allegations disproportionately target women athletes of color because they do not fit the stereotypical mold of what it means to be a “real woman.”[8]
Acknowledging the concern of competitive fairness, the IOC must first prioritize women’s human rights as people before athletes. Sex testing practices, often prompted based on mere suspicion and without informed consent, unjustly infringe upon a woman’s right to health, privacy, and human dignity. These fundamental rights are protected under the Universal Declaration of Human Rights (UDHR) and the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW).[9]
This article explores the discriminatory nature of sex testing policies enforced by international sports authorities. Part II provides background on the evolution of sex testing in women’s sports. Part III discusses how the regulations, stoked by fear rather than science, have infringed upon women athletes’ rights to health, privacy, and human dignity. Part IV concludes by calling for changes to world sports governing bodies that are informed by human rights law.
II. Background
In the 1940s, international sports authorities began implementing “systematic sex testing” policies in an attempt to quiet unsubstantiated claims of “men masquerading as women” in international sports competitions.[10] “Sex testing” includes a series of clinical exams and tests to “assess women athlete’s specific sex characteristics and, by proxy, their sex.”[11] To remain eligible to compete, women were required to present documents, such as an “identity card” or a “certificate of femininity,” from their physician.[12] Initially, these policies were informal and implemented on an ad hoc basis, but by the 1960s, they had become mandatory by sports federations such as the IAAF and the IOC.[13]
The earliest gender verification tests forced women to “parade naked in front of a panel of doctors” to determine eligibility.[14] Recognizing the invasiveness of such tests, international sports authorities shifted to chromosomal testing, which proved to be highly inconsistent and unreliable.[15] Following increased backlash alleging human rights violations, the IAAF and IOC discontinued mandatory sex testing for all women, instead focusing only on women who they deemed “suspicious.”[16] The IAAF and IOC often deemed women suspicious merely because they exhibited “remarkable athleticism, male-like muscles, and angular faces.”[17] These policies lacked any “clear criteria for inclusion or exclusion.”[18] Such arbitrary policies subject women athletes to “unwarranted and invasive” testing that infringes upon their fundamental human rights.[19]
For example, at only eighteen years old, Caster Semenya, a South African runner, two-time Olympian, and three-time world champion, became the center of controversy in track and field after rumors emerged that she was “biologically male.”[20] Subsequently, the track and field governing body, World Athletics, formerly the IAAF, forced Semenya to undergo “intrusive gender-verification tests,” including a gynecological examination and blood tests.[21] Testing revealed that Semenya has Swyer syndrome, a rare genetic condition in which a person looks female and has normal female reproductive organs but possesses X and Y chromosomes—the typical genetic makeup for males.[22] Because of her condition, Semenya has elevated natural testosterone levels.[23] To continue racing, the IAAF required Semenya to artificially lower her testosterone levels through either daily oral contraceptives, hormone-blocking injections, or surgery.[24] Semenya took the oral contraceptives for five years but discontinued the treatment as she began to experience a “myriad of unwanted side effects,” including weight gain, constant nausea, depression, and other symptoms associated with menopausal women.[25]
In 2018, World Athletics adopted new rules targeting women athletes with DSDs.[26] Despite the science being inconclusive, World Athletics argued that women athletes with testosterone levels “higher than the typical female range” receive an “unfair advantage.”[27] World Athletics prohibited Semenya from running in races over 400 meters, given her naturally elevated testosterone levels.[28] Semenya’s and Khelif’s stories are becoming increasingly common among elite women athletes, particularly women of color.[29]
In 2021, the IOC issued a “fairness, inclusion, and non-discrimination” framework that guides sports bodies in creating eligibility criteria for elite competition.[30] The IOC’s framework did not go far enough, as it left discretionary decisions regarding gender and sex verification policies to the respective governing bodies of each sport.[31] IFs, such as World Athletics, have since enacted more restrictive policies.[32] Athletes with DSDs must maintain their testosterone levels within a specified range for at least 24 months prior to competition in women’s events.[33] If a competitor’s gender is “questioned,” they will be referred for further gender verification testing, often without even being informed.[34] The IOC’s failure to provide binding regulation to protect the human rights of women athletes allows for the utmost violation of personal privacy and human dignity based on mere suspicion.
III. Discussion
Although the IOC and IAAF have spent nearly 50 years “vigorously policing gender boundaries,” they have “never once discovered an imposter.”[35] Discriminatory sex testing and gender verification policies stem from fear rather than science.[36] Sex testing practices disproportionately target women athletes with DSDs because they do not fit stereotypical norms of what it means to be a woman.[37] Such disparate treatment can cause depression, self-questioning, loss of livelihood, and public scrutiny, and it violates women athletes’ international human rights to health, privacy, and human dignity.
A. International Law Protects Women Athletes
The UDHR recognizes that everyone is “born free and equal in dignity and rights.”[38] Additionally, it protects against “arbitrary interference of [one’s] privacy,” upholding the right to “life, liberty, and security of person.”[39] Women athletes with “suspiciously masculine” physiques defy stereotypical norms of what it means to be a woman and are often subjected to intrusive gender verification tests without being given a choice, informed, or consenting to what is being done to them.[40] Semenya, for example, was subjected to her first gender verification tests at just eighteen years old.[41] The South African track federation sent a gynecologist to perform a genital examination and blood tests on Semenya without obtaining informed consent.[42] After winning the world 800-meter title, she received an “order by the IAAF” to report to a hospital and have more tests conducted.[43] Semenya was never provided a choice in the matter, nor was she adequately informed about what was being done to her and for what purpose.[44] The IAAF’s intrusive gender verification practices failed to treat Semenya as a human being deserving of human dignity, violating her right to privacy and the ability to make decisions regarding her own healthcare. The UDHR sets the standard to protect against such human rights violations, yet Semenya’s story is just one of many for women athletes.[45]
Article 12 of the UDHR protects against “arbitrary interference” of one’s privacy and attacks upon one’s honor and reputation.[46] Women athletes who are subjected to controversial gender eligibility tests face not only internal self-questioning but also the accompanying public criticism and shame that comes from being in the public eye.[47] Khelif describes being “born a female, living her life as female and competing as a female” before the IBA disqualified her for failing an unspecified gender eligibility test.[48] Khelif, though cleared by the IOC, continued to face intense “vitriol” alleging that she was male or transgender.[49] Above all else, athletes are human beings first and should not be required to forfeit their fundamental human rights to participate in sports. The UDHR, despite its significant impact on international human rights law, is not legally binding and, thus, does not have any direct legal enforcement power.[50] Subsequent violations by the IOC or other international sports authorities only result in diplomatic pressure, international condemnation, or potential investigation, which have clearly been inadequate in preventing human rights violations.[51]
Unlike the UDHR, the CEDAW, protecting against differential gender-based treatment, is legally binding, but only by countries that have ratified the treaty.[52] The CEDAW defines discrimination as “any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women…of [their] human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.”[53] Male athletes’ testosterone levels fluctuate as well, yet no corresponding regulation exists to test or limit their levels.[54] This discrepancy highlights gendered assumptions in sports policies, requiring more equitable and science-based approaches to manage eligibility criteria.[55] Despite an overreliance on the use of testosterone for determining eligibility, there is “no scientific consensus” on the perceived performance advantage of naturally elevated testosterone levels in women.[56] Female athletes of color have disproportionately been the target of false accusations surrounding their gender because they do not conform to the traditional “Western, white ideals of femininity.”[57] The discriminatory sex-testing policies of the IOC and other sports associations, resulting in the disparate treatment of women, operate in violation of the CEDAW.
Discrimination against women athletes has implications beyond sports.[58] Women deemed “too masculine” are thrust into the spotlight, becoming “targets of suspicion and gossip,” oftentimes without even knowing what is going on.[59] Women who have experienced this phenomenon describe “intense self-questioning,” shame, depression, suicide, and loss of their livelihood.[60] Semenya was once one of the world’s most dominant middle-distance runners and has now largely been shut out of international competitions because of hormone regulations.[61] Santhi Soundarajan, an Indian track sensation, won Silver in the 800-meter event at the 2006 Doha Asian Games.[62] One week later, Soundarajan “controversially failed a gender test and was stripped of her medal.”[63] Soundarajan battled public shame, suffering from “unimaginable pain and hardship.”[64] One year later, she attempted suicide.[65] Though not legally bound by the UDHR and CEDAW, the IOC and other international sports authorities must use the established guiding principles to develop objective, science-based eligibility criteria that balance competitive fairness concerns and promote women athletes’ human rights.
B. Changes Necessary to International Sports Policies
Gender verification policies lack uniform standards across Olympic sports, subjecting women athletes to inconsistent treatment.[66] IFs are non-governmental organizations with the primary responsibility for upholding the “integrity” of their respective sports on the international level.[67] The IOC’s framework is not binding and lacks enforcement mechanisms for IFs who fail to uphold the standard.[68] The IOC must implement an oversight body dedicated to upholding the fundamental right to health, dignity, and privacy of all athletes, particularly those with DSDs. This change will preserve the expertise brought by each federation with respect to their individual sports while simultaneously increasing oversight and regulatory authority to ensure that all athletes’ human rights are protected.
IFs, such as World Athletics, express a desire to be “as inclusive as possible,” yet their policies and actions suggest otherwise.[69] Gender verification practices subject women to intrusive medical examinations based on mere “suspicion” or “challenge.”[70] This policy language sets an exceptionally low bar for women to be subjected to intrusive testing, as it imposes a narrow, stereotypical view of what it means to be a “real woman.”[71]
Elite women athletes, such as Khelif, Semenya, Soundarajan, and many others, have been subject to “wave[s] of hateful scrutiny” over misconceptions and misinformation regarding their gender.[72] In the case of Khelif, her opponent later retracted her statement questioning Khelif’s gender after social media and popular news outlets further magnified the false claims.[73] Khelif has been vocal about the detrimental impacts of the scrutiny that she has received, arguing that it “harms [her] human dignity” and can “kill people’s thoughts, spirit, and mind.”[74] Retroactive acknowledgment of harm by the IOC and other international sports associations is both necessary and important. Still, these organizations must take prospective action to protect the human rights of women athletes before they have been infringed upon.
IV. Conclusion
As early as the 1940s, international sporting authorities began implementing “systematic sex testing” policies after a rise in unsubstantiated claims of “men masquerading as women” in international sports competitions.[75] IFs promote competitive fairness and inclusivity, yet their policies and actions suggest otherwise as they subject women athletes to invasive testing. These policies are full of vague and arbitrary language that lacks any “clear criteria for inclusion or exclusion,” disproportionately impacting women who do not conform to societal gender norms.[76] Women athletes with DSDs are involuntarily subjected to sex testing practices that violate their rights to privacy, health, and the preservation of human dignity based solely on a “hunch.” Beyond initial headlines, false allegations about a woman’s gender can have lasting, devastating impacts on her life, health, and livelihood. The principles of the UDHR and the CEDAW, though nonbinding on the IOC, must serve as a foundation for establishing policies and a human rights oversight body that balances the concern of competitive fairness while also providing oversight to ensure that women athletes do not compromise their human rights to participate in the sports they love.
[1] Carini stated that she had “never taken a punch like that.”; Rohan Sen, ‘Never Been Hit So Hard’: Tearful Angela Carini Shattered After Losing to ‘Biological Male’ Boxer Imane Khelif at Paris Olympics, Free Press J. (Aug. 1, 2024, 8:52 PM), https://www.freepressjournal.in/sports/never-been-hit-so-hard-tearful-angela-carini-shattered-after-losing-to-biological-male-boxer-imane-khelif-at-paris-olympics [https://perma.cc/CE4T-AMY2].
[2] Id.
[3] Id.
[4] William Brangham et al., False Accusations Surrounding Olympic Boxer Highlight Debate Around Gender and Sports, PBS News (Aug. 7, 2024, 6:30 PM), https://www.pbs.org/newshour/show/false-accusations-surrounding-olympic-boxer-highlight-debate-around-gender-and-sports [https://perma.cc/9ZK7-3TV7].
[5] “They’re Chasing Us Away from Sport”: Human Rights Violations in Sex Testing of Elite Women Athletes, Hum. Rts. Watch (Dec. 2020), https://www.hrw.org/report/2020/12/04/theyre-chasing-us-away-sport/human-rights-violations-sex-testing-elite-women [https://perma.cc/F7NN-NRV9] [hereinafter They’re Chasing].
[6] Gerald Imray, Semenya Misses Tokyo, May Be Forced Out of Olympics for Good, AP News (Jul. 3, 2021, 2:48 AM), https://apnews.com/article/africa-olympic-games-2020-tokyo-olympics-sports-c11b5fba248c03ea6ddd7e7089818eb0 [https://perma.cc/CH2M-WCU9].
[7] Id.
[8] They’re Chasing, supra note 5.
[9] G.A. Res. 217 (III) A, Universal Declaration of Human Rights, Dec. 10, 1948 [hereinafter UDHR]; G.A. Res. 34/180, Convention on the Elimination of All Forms of Discrimination Against Women, Dec. 18, 1979, [hereinafter CEDAW].
[10] They’re Chasing, supra note 5.
[11] Id.
[12] Id.
[13] Id.
[14] Id.
[15] Id.
[16] Id.
[17] Ruth Padawer, The Humiliating Practice of Sex-Testing Female Athletes, NY Times (Jun. 28, 2016), https://www.nytimes.com/2016/07/03/magazine/the-humiliating-practice-of-sex-testing-female-athletes.html [https://perma.cc/L4AX-V64F].
[18] They’re Chasing, supra note 5.
[19] Id.
[20] Gerald Imray, Documents Reveal New Details in Bitter Semenya-IAAF Battle, AP News (Jun. 22, 2019, 12:27 PM), https://apnews.com/documents-reveal-new-details-in-bitter-semenya-iaaf-battle-f844add98d02453ea926706f687c2fc7 [https://perma.cc/ABN9-T47Z].
[21] Id.
[22] See Swyer syndrome, Nat’l Cancer Inst., https://www.cancer.gov/publications/dictionaries/cancer-terms/def/swyer-syndrome [https://perma.cc/YVG8-EUJD].
[23] Imray, supra note 20.
[24] Imray, supra note 6.
[25] Imray, supra note 20.
[26] Id.
[27] Id.
[28] Id.
[29] Id.
[30] Thays Prado, Centre Statement: IOC Releases Framework on Fairness, Inclusion and Non-Discrimination on the Basis of Gender Identity and Sex Variations, Ctr. Sport Hum. Rts. (Nov. 16, 2021), https://www.sporthumanrights.org/news/centre-statement-ioc-releases-framework-on-fairness-inclusion-and-non-discrimination-on-the-basis-of-gender-identity-and-sex-variations [https://perma.cc/7C6W-ZEMC].
[31] International Sports Federations, Int’l Olympic Comm., https://olympics.com/ioc/international-federations [https://perma.cc/D3L8-H747].
[32] Id.
[33] World Athletics Eligibility Regulations for the Female Classification, World Athletics, Book C -C3.6 (March 31, 2023) [hereinafter World Athletics Eligibility].
[34] Id.
[35] Padawer, supra note 17.
[36] Jireh Deng, Opinion: Fear Mongering Around Sports Conceals Discrimination Against the Trans Community, LA Times (Aug. 3, 2021, 11:54 AM), https://www.latimes.com/opinion/story/2021-08-03/opinion-fear-mongering-around-sports-conceals-discrimination-against-the-trans-community [https://perma.cc/4QZM-HUVY].
[37] They’re Chasing, supra note 5.
[38] UDHR, supra note 9.
[39] Id.
[40] Padawer, supra note 17; Imray, supra note 20.
[41] Imray, supra note 20.
[42] Id.
[43] Id.
[44] Id.
[45] UDHR, supra note 9.
[46] Id.
[47] Brangham et al., supra note 4.
[48] Id.
[49] Id.
[50] Human Rights Explained: The International Bill of Rights, Austl. Hum. Rts. Comm’n (last visited Nov. 16, 2024), https://humanrights.gov.au/our-work/education/human-rights-explained-international-bill-rights [https://perma.cc/BN6T-F2WF].
[51] Reporting Violations, United Nations (last visited Nov. 16, 2024), https://www.ohchr.org/en/reporting_violations [https://perma.cc/9BEG-MMBR].
[52] CEDAW, supra note 9.
[53] Id.
[54] End Abusive Sex Testing for Women Athletes, Hum. Rts. Watch (Dec. 4, 2020, 12:00 AM), https://www.hrw.org/news/2020/12/04/end-abusive-sex-testing-women-athletes [https://perma.cc/M6W7-UM5R].
[55] Id.
[56] Id.
[57] Noreen Nasir, For Women Athletes of Color Outsized Scrutiny Over Gender is Nothing New, Historians Say, PBS News (Aug. 4, 2024, 6:52 PM), https://www.pbs.org/newshour/world/for-women-athletes-of-color-outsized-scrutiny-over-gender-is-nothing-new-historians [https://perma.cc/QN6N-8N5A].
[58] They’re Chasing, supra note 5.
[59] Id.
[60] Id.
[61] Imray, supra note 6.
[62] Manuja Veerappa, Stripped of Her Asian Games Medal and Banned from Competing, Santhi Soundarajan is Now Pushing Ahead with a Different Dream, ABC News (Dec. 16, 2022), https://www.abc.net.au/news/2022-12-17/where-is-santhi-soundarajan-now-asian-games-medal-stripped/101737534 [https://perma.cc/BV32-CFQ7].
[63] Id.
[64] Id.
[65] They’re Chasing, supra note 5.
[66] Myron Genel & Arne Ljungqvist, Essay: Gender Verification of Female Athletes, 366 The Lancet S41 (2005), https://doi.org/10.1016/S0140-6736(05)67843-9.
[67] International Sports Federations, supra note 31.
[68] Fairness, Inclusion and Non-Discrimination in Olympic Sport, Int’l Olympic Comm. (last visited Nov. 16, 2024), https://olympics.com/ioc/human-rights/fairness-inclusion-nondiscrimination [https://perma.cc/E4XW-8JJB].
[69] World Athletics Eligibility, supra note 33.
[70] They’re Chasing, supra note 5.
[71] Id.
[72] Kaddour Habbari & Greg Beacham, Olympic Boxer Imane Khelif Says Misconceptions About Her Gender ‘Harms Human Dignity,’ PBS News (Aug. 5, 2024, 11:07 AM), https://www.pbs.org/newshour/world/olympic-boxer-imane-khelif-says-misconceptions-about-her-gender-harms-human-dignity [https://perma.cc/697N-CY8G].
[73] Mathew Rodriguez, The Boston Globe Apologized for the ‘Significant Error’ of Calling Imane Khelif ‘Transgender,’ Them (Aug. 5, 2024), https://www.them.us/story/boston-globe-imane-khelif-retraction [https://perma.cc/6UUQ-YSWD]; Luke Baker, Angela Carini ‘Wants to Apologize’ to Imane Khelif for Aftermath of Controversial Olympic Boxing Bout, The Indep. (Aug. 3, 2024, 6:28 AM), https://www.the-independent.com/sport/olympics/angela-carini-imane-khelif-apologise-boxing-gender-test-b2590615.html [https://perma.cc/F2G2-FP9K].
[74] Habbari, supra note 73.
[75] Id.
[76] They’re Chasing, supra note 5.
