The Sports Law & Policy Centre | Gender Determination in Sport
271
post-template-default,single,single-post,postid-271,single-format-standard,ajax_fade,page_not_loaded,,select-theme-ver-2.5,wpb-js-composer js-comp-ver-5.0.1,vc_responsive

Gender Determination in Sport

By Nandan Kamath

Introduction

Historically, female athletes and sportswomen have been subject to an assortment of discriminatory practises that have affected their ability to participate in sporting events. The very first modern Olympic Games organised in 1896 at Athens prohibited women from competing, which restriction was lifted in the Paris 1900 Olympic Games. Since then, female athletes have featured in Olympic competitions in gender specific events as well as in several “mixed” disciplines, including sailing and equestrian events. It is understandable that, given the physiological differences that exist between men and women, and in the interest of fair play, most international sports federations organise their major competitions along gender restricted lines. For example, the International Olympic Council’s (“IOC”) “Regulations on Female Hyperandrogenism” which apply to the London 2012 Olympic Games, provide, “for men’s 2012 Olympic Games Competitions, only men are eligible to compete and for women’s 2012 Olympic Games Competitions, only women are eligible to compete.”

However, such segregated competition has created the possibility of controversy, as some female athletes have been accused of getting an unfair advantage as a result of ambiguity with regards to their gender. The recent allegations made against Asian Games gold medalist Pinki Pramanik and the prospect of her being stripped of her medals brings into focus the issue of “gender determination” which has proven to be controversial with regards to women and sports.

This article briefly discusses gender determination in sports focusing specifically on the standards used by the IOC and the International Association of Athletics Federations (“IAAF”) in the past and a summary of the regulations currently in use.

Background

Though ad hoc gender testing had been practiced since the 1936 Berlin Olympic Games, mass testing of the female athletes was first implemented by the IAAF in 1946. In 1948, the IOC followed suit and implemented its first formal policy for female gender determination. In these early iterations of gender determination, female competitors in sports events were required to provide “medical certificates of femininity”, to be eligible to compete. However, the IAAF and IOC provided no standard criteria and exercised no oversight for making this determination. The IAAF, in order to guard against the possibility of men entering women-only events, adopted standardized tests to determine gender in the late 1960’s, which required inter alia, that female athletes parade nude before a panel of physicians and submit to a series of gynaecological examinations in order to confirm their femininity. Gender verification of female athletes, thereafter, became a part of the pre-competition protocol in all IAAF certified events.

However, rising protests and criticism from female athletes against the IAAF-prescribed test standards for gender determination led the IOC in 1968 to devise an alternative, less invasive method to determine gender. Accordingly, all female athletes were required to undergo the “Barr body test”. This test consisted of acquiring a “buccal smear” from inside the athlete’s cheek and then examining the cells for the presence of a chromatin mass (known as the Barr body) which is found only in women. If the test was positive, the athletes were issued a “certificate of feminity.” However, if the test results were negative, a complete chromosomal examination was conducted on a blood sample of the female athlete, and was supplemented by a thorough gynaecological examination.

he Barr body test gradually phased out during the 1970’s and 80’s and the IOC, beginning with the 1992 Winter Olympics in Albertville, France, authorized a new protocol which consisted of the “polymerase chain reaction” (“PCR”) test that searched for the SRY (sex determining region Y) gene. The rationale for this test was, since of the SRY gene is found only on the Y chromosome, its existence would indicate that the individual was male. Although the PCR technique was supposed to identify unique male DNA sequences, further examination revealed that at least one of the DNA sequences used to prime the PCR test was in fact not exclusive to males, and may have contributed to a large number of false positive test results, such as the case of 8 female athletes in the 1996 Summer Olympic Games in Atlanta who were wrongly identified as male.

Interestingly, when the IOC switched over to the PCR test in 1992, the IAAF did not follow suit. Instead, the IAAF decided to abandon mandatory sex testing altogether and adopted a strategy equivalent to the medical examinations conducted prior to the 1968 Mexico City Summer Olympic Games. These new IAAF protocols granted authority to a medical delegate at an IAAF certified event to “arrange for the determination of the gender of the competitor should he judge that to be desirable.”Thus, the IAAF employed a “suspicion-based” medical examination rather than a universal examination for all female athletes and this was believed to serve as an adequate deterrent to males masquerading as females in athletic competition. In the wake of the Atlanta games fiasco, the IOC and most other sports federations abandoned all forms of routine gender testing of female athletes and switched to the “suspicion based” standard devised by the IAAF.

This option was invoked first in the case of Indian sprinter, Shanti Soundarajan, who failed a gender determination test conducted by Olympic Council of Asia (OCA) at the 2006 Asian Games in Doha, Qatar and later, infamously in the case of the South African sprinter, Caster Semenya, who was subject to a gender determination test after the 2009 IAAF World Championships. Although the IAAF later confirmed that Caster Semenya would be allowed to continue competing as a woman in future events, the stream of negative reactions and criticism directed at the IAAF for its handling of the case and its testing policies, forced the IAAF and IOC to devise a new policy to protect the integrity of women’s events in sports competitions.

Current Standards

After much deliberation and consultation with several medical experts the IOC and IAAF agreed upon a new set of standards for gender determination in the year 2011. The new protocols primarily address the issue of “female hyperandrogenism” present in an athlete, a condition that involves the excessive production of androgens like testosterone as women with naturally high endogenous levels of testosterone, are considered to have an advantage over women with lower levels of testosterone.

The “IAAF Regulations Governing Eligibility of Females with Hyperandrogenism to Compete in Women’s Competition” which came into effect on 1 May, 2011, provide that any female athlete with levels of testosterone that reach a male’s normal level would be barred from competing with other female athletes, if it is found that the athlete’s body is responsive to androgens. A male’s normal level of androgen according to the regulations is fixed at “≥10 nmol/L” (nanomoles per liter). Additionally, the IAAF regulations provide for the setting up of an “expert medical panel” to determine the athlete’s eligibility and make recommendations in accordance with the rules prescribed in the regulations. The IAAF regulations also provide an exception to the above rule in case the athlete is able to establish to the satisfaction of the expert medical panel “that she has an androgen resistance such that she derives no competitive advantage from androgen levels in the normal male range”

The IAAF regulations however refrain from defining what constitutes a “competitive advantage” under the rules and instead state that the proof required to qualify under this exception would be based on a “balance of probabilities”. Likewise, the “IOC Regulations on Female Hyperandrogenism” (which apply to the London 2012 Olympic Games) are based on the principles identical to those in the IAAF regulations and rely on a similar test for determining female hyperandrogenism. However, unlike the IAAF regulations, the IOC regulations fail to specify what a male’s normal level of androgen might be. Further, the “expert medical panel” according to the IOC regulations would consist of at least 3 experts – a gynaecologist, a genetic expert and an endocrinologist – and would be empowered to conduct a complete medical and chemical evaluation of the female athlete if required. Further, the IOC Regulations also place a responsibility on the National Olympic Committees (NOC) to ensure that all athletes sent to the Games are eligible for participation by requiring them to investigate any “perceived deviation in sex characteristics” and maintain the records of the findings.

Furthermore, the IOC regulations and IAAF regulations state that, women athletes who are known or suspected to have hyperandrogenism will be allowed to compete in the future only if they agree to medical intervention such as surgery, or if they are found to be “insensitive” to androgens. In addition to the regulations based on hyperandrogenism, the IOC and the IAAF in recent years also have also passed regulations which now permit female athletes who have undergone sex reassignment surgery to compete in future Olympic Games and IAAF certified events, as long as they meet certain criteria on the duration of hormonal treatment and the timing of surgery. The IAAF Regulations Governing Eligibility of Athletes Who Have Undergone Sex Reassignment to Compete in Women’s Competition go on to state that an “expert medical panel” will have the discretion to determine whether an athlete is eligible for participation in women’s competitions if it concludes that the medical treatment was provided to the athlete post the sex assignment for an appropriate amount of time and in a manner that can be authenticated.

A standout feature of these new rules is that they only seek to address cases where the athlete has undergone male to female sex reassignment. The procedure for an athlete who has undergone female to male sex reassignment is in contrast, far simpler. The requirement for such athletes to compete in men’s events is that they have to produce a “sex recognition certificate or any other form of identification confirming that he is recognized in law a male.”

Conclusion
It is evident that issues of gender identity in sport have focused almost exclusively on situations in which males (or former males) may potentially upset the level playing field of female competition. This reflects the practical reality faced by sporting authorities in the wake of cases such as Caster Semenya, Shanti Soundarajan and Pinki Pramanik. Women with ambiguous gender traits have often been scapegoats for widespread anxiety over the fairness of women specific sports events. The focus on hyperandrogenism for the purpose of gender determination might seem to be an improvement over previous tests as the stated aim is to ensure fairness and not to eliminate athletes with an indeterminate gender. However, it remains to be seen whether the new regulations will serve their purpose or will become another tool for indiscriminate use against people who are not gender-conforming.

_

© The Sports Law & Policy Centre