Shortly before the start of the 2012 Olympic games in London two of the world’s largest and most powerful governing athletic bodies; the International Association of Athletics Foundations (“IAAF”), responsible for regulating international track and field competition, and the International Olympic Committee (“IOC”), the governing body of the Olympics, enacted new rules that may significantly alter women’s sports. The organizations enacted rules that target women withafter the world embarrassingly questioned the sexuality of Caster Semenya, a young South African runner, pictured below. In August 2009, Semenya raced in and won the 800-meter event at the Berlin World Championship in Athletics by a margin of 2.45 seconds. Her competitors immediately vocalized their concerns about her sexuality. These concerns sparked a media frenzy which led to the extensive testing and the release of embarrassing details about Semenya’s sexuality. The scrutiny was so intense that it forced Semenya into hiding and to seek counseling. After the IAAF banned Semenya from competition while it conducted its investigation, the IAAF eventually let Semenya’s victory stand. Her victory was upheld because Semenya was not cheating, nor was she a man. She was diagnosed as having a condition known as hyperandrogenism. With the damage done to Semenya’s privacy and her career, the IAAF and IOC set about devising rules that would prevent such public humiliation and maintain the integrity of female competition. Unfortunately, the new rules have missed the mark. The rules on hyperandrogenism are based on unproven scientific assumptions and limited views of gender and sexuality. This essay attempts to expose the new rules and calls for their appeal.
In our quest for what is fair and righteous, lawyers like to start with the law. So start with the law I shall. The IAAF establishes two methods by which hyperandrogenic women come under the purview of the new rules. Either a woman who knows she is hyperandrogenic can report herself to the IAAF, or another party who is suspicious that an athlete is hyperandrogenic may report the suspected athlete. In order to compete, athletes who are known to have hyperandrogenism must submit to medical treatments designed to “normalize” testosterone levels. If the athlete declines such treatments, she is banned from competition. If IAAF officials believe that an athlete is hyperandrogenic, the athlete must submit herself to any combination of three tests that analyze the athlete’s androgen levels and overall physical and mental health. These tests and the results are submitted to a panel of medical “experts” for review and determination of eligibility. If an athlete’s testosterone levels are found to be “below the normal male range” or “within the normal male range but [she] has androgen resistance,” then she is allowed to compete. If not, however, the athlete is ineligible to compete unless she is willing to subject herself to medical treatments designed to bring her body under conditions suitable for competition. The full codification of the rules can be found here. IOC’s rules are similar to the IAAF’s, and maybe found here.
The Science…or Lack Thereof
Hyperandrogenism (hy-per-an´dro-jen-izm) refers to a condition in which a person experiences excessive androgen secretions. (From here on, HA will be used to refer to hyperandrogenism) Androgens are steroids that control the development and maintenance of masculine characteristics. For purposes of this discussion, HA refers to the condition where a female naturally produces excessive amounts of testosterone. The increased amounts of testosterone cause hyperandrogenic females to have features commonly associated with males, but there is no question that they are female. So what’s the big deal? Why are there new rules for women with HA?
Many have been taught that testosterone gives males athletic abilities that are superior to females. Supposedly, it allows them to throw farther, jump higher, and run faster. Following that train of thought, if a female naturally produces more testosterone then most females, as do females with HA, the theory is that they will display athletic abilities that are superior to other females. The new rules seek to prevent females with naturally elevated levels of testosterone from competing against females with normal testosterone levels. Well, one big, better yet HUGE, problem with this theory is that the link between testosterone and athleticism, especially in females, has not been proven. Stated another way, there is no evidence that shows that successful athletes have higher testosterone levels than less successful athletes. That is not to say that there is no evidence that testosterone does not help individuals increase their muscle size, strength and endurance, because there is. But no study has shown that testosterone makes people more athletic. Athleticism requires more than strength. Think about the extra buff, body builders who are strong but not necessarily athletic. What has been proven is that individuals have different responses to the same amounts of testosterone, females do not react to testosterone the same way that males do, and that testosterone is just ONE component in the complex neuroendocrine feedback system that may affect athletic performances.
In an effort to prove my point let’s consider females with two different diseases that relate to testosterone. First, there is Complete Androgen Insensitivity Syndrome (CAIS). Females with CAIS have tissue that is completely unresponsive to testosterone. Despite this, females with CAIS are overrepresented among elite athletes. Testosterone plays absolutely no role in their athleticism, but they dominate their sports. [See hurdler María José Martínez Patiño] Second, there is Congenital Adrenal Hyperplasia (CAH). Females with CAH have high levels of testosterone; however, they are disproportionately affected by short stature and obesity, the antitheses of athleticism. These conditions support the arguments that while testosterone functions similarly in females and males, testosterone’s effects on athletic abilities are different in males and females and testosterone probably is not what makes one female more athletic than another. In sum, relying on testosterone to determine athletic ability, especially in females, is not supported by actual science. At least until science supports the theory that increased testosterone in females provides a competitive edge, I think the rules should be repealed.
My analysis of the rules could have stopped at the fact that they are based on incomplete science, but that just wouldn’t drive my point home strongly enough. The problems with the rules add up…
First, there are two justifications for the new rules, both of which are unsupported. One justification is health. The IAAF’s preface to its rules suggests that the rules were designed out of a concern for the health of athletes who have HA. Actually, there are many instances where there are no clear health risks for females with HA. If a hyperandrogenic athlete competes successfully, chances are that her condition is not negatively affecting her health at all. Furthermore, after an athlete is diagnosed with HA nothing in the rules suggests that the IAAF will offer any financial aid towards medical treatment. The rules’ second and most publicized justification is competitive fairness. The IAAF and the IOC both use competitive fairness as one of the main motivators behind the new rules; however, as I have already explained there is no evidence that testosterone is solely responsible for providing athletes with a competitive edge. The IAAF and IOC seem to suggest that HA gives females superwoman-type of abilities; however, the facts just don’t support this line of thought. For example, while Semenya’s Berlin results showed an improvement over her earlier times, her performance only ranked 26th overall for women and 7th for girls. Plenty of females had run faster than Semenya, and her times did not even rank on the men’s or boy’s lists. Her HA certainly did not turn her into a super-competitor. The legitimacy of the IAAF and IOC’s motives for the new rules just don’t withstand a rational test. After analyzing the organizations’ weak arguments for the new rules, it becomes more apparent that the rules are a danger to female sports.
Another issue of significant concern is the blatant sex discrimination that the new rules sanction. HA affects both females and males. If increased of testosterone gives females with HA a competitive edge, why would the same not be true for males? Why not enact a similar series of rules, tests, and bans for males? After all, it would be no fairer for “normal” males to compete against hyperandrogenic males than it is for “normal” females to compete against hperandrogenic females, right? That females are held to a completely different standard than males is quite disturbing, especially when the rules are supposedly based on fact and science.
Not far removed from the issue of sexual inequality in testing, is the fact that the IAAF and IOC have somewhat arbitrarily decided on an acceptable range for testosterone levels in female competitors. The rules require that female competitors have testosterone levels lower than the “normal” male range. The “normal” male range is ≥10 nmol/L. The rules simply require that the females’ testosterone levels be less than 10 nmol/L without providing an actual range for normal female testosterone. Supposedly, the average female has testosterone levels that are one-tenth of the average male levels, or 1 nmol/L of testosterone. If, as the rules suggest, above average testosterone gives females a competitive edge, why are females who register at 9 nmol/L, for instance, more worthy of competing than females who register at 10 nmol/L?
The legtitimacy of the rules is again questioned when other genetic defects are taken into account. Though not commonly known to the masses, many elite athletes are born with exceptional biological variations that give them athletic advantages. Some runners and cyclists have rare mitochondrial variations that give them extraordinary aerobic capacity and resistance against fatigue. Some elite athletes have variations in genes that affect muscle growth and efficiency and blood flow to skeletal muscles. In fact, many speculate that Olympian Michael Phelps has Marfan’s syndrome, a rare genetic mutation that results in exceptionally long limbs and flexible joints, that helps to make him an exceptional swimmer. These are just a few examples that show that there are many elite athletes who have genetic variations that give competitive edges. These athletes are, however, allowed to compete. HA, if it gives a competitive advantage at all, is no different than any other genetic variation. Hyperandrogenic females have not introduced any foreign substance into their bodies and should not be banned from competition or be forced to endure treatments to alter their natural biology as if they have. 99 problems lead to the question: Why such different treatment for HA?
Gender: Not Woman Enough
I believe that gender discrimination is at the heart of the new rules. The new rules are solely about gender and discriminate against females who phenotypically appear to be less female than many of their counterparts. Gender refers to the psychological and behavioral traits that are designated as “masculine” or “feminine,” i.e., traits considered more common for or appropriate to boys and men versus girls and women. Sex, on the other hand, refers to the biological and anatomical traits that are used to label a person as female or male. IAAF and IOC rules are not aimed at sex testing. Both organizations accept the fact that athletes with HA are in fact female, and that they have not introduced any foreign substance into their bodies. The rules target females who look like males, not those who have the athletic abilities of males.
When Caster Semenya was forced to undergo tests for HA, the tests were driven, not by her performance, but by concerns for her image. In speaking of Semenya following her now famed Berlin run, writers referred to her as “breathtakingly butch” and a “hermaphrodite.” Her competitors called her a man saying, “these kinds of people should not be allowed to run with us.” She was placed under the microscope not because she had done some remarkable feat, but because her look, too masculine for some, made competitors uncomfortable. Remember, her times were nothing extraordinary. The rules, prompted by the Semenya incident, which allow athletes and coaches to report females they believe have HA opens the door for females to have to submit themselves to testing simply because they do not fit into the socially accepted norms of femininity; not because of a legitimate concern about fair competition. Attacks on the outward appearances of female athletes will not ensure a fair playing field, but will reinforce paternalistic definitions of what a female should be. Instead of giving female athletes the freedom to be themselves and compete to the best of their abilities the rules pressure them to conform to popular notions of gender or shy away from competition all together to avoid scrutiny.
Attacks on gender have the potential to seriously detract from the growth and prominence of female sports. Instead of focusing on performance, the rules encourage debate about femininity. For years women and girls have fought to have their athletic accomplishments legitimized. The rules open the door for athletes and the public to challenge the legitimacy of athletic performances simply because a competitor does not fit the mold not because legitimate evidence of competitive unfairness exists. They condone boxing athletes into arbitrary perimeters of what a female should look like, and promote fears about those who do not fit some image of the “model women.”
The image of a woman as feminine and docile has been defined from a largely white, male perspective that leaves little room for acceptance of different definitions of womanhood. Confined definitions of womanhood promote discrimination when a female does not fit the mold. Compare the public’s reaction to Semenya’s victory to that of Nadzeya Ostapchuk, the Belarus shot putter. Ostapchuk, pictured below, won the gold medal in the shot put in the 2012 Olympics in London. While arguably Ostapchuk looks no less masculine than Semenya, none of Ostapchuk’s competitors questioned her sexuality. However, after testing positive for steroids, Ostapchuk was stripped of her gold medal. Ostapchuk’s tests were not a result of a public outcry about her appearance as too masculine, but as a result of the testing that every athlete must submit themselves to after winning an Olympic medal. Here we have a situation where a complete new set of rules was established because a South African runner, who had introduced no foreign substance into her body, did not look the part while no one questioned the woman from Belarus who too lacked the feminine touch but was in fact cheating. Could it have been Semenya’s skin color, dark like her ancestors from Africa; her hair, braided in a style less embodied by Europeans; or her build, strong and chiseled, that made her susceptible to public scrutiny? If any one of those things led to the disparate treatment between Semenya and Ostapchuk, it shouldn’t be so. One individual’s athletic performance should not be scrutinized based on her appearance, and the IAAF and IOC rules allow for just that.
I do not doubt that the IAAF and IOC had admiral intentions when enacting the new rules on HA in female competitors. I believe however that engrained ideals of masculinity and femininity drove the organizations to rely on incomplete science to silence public outcry. While the rules have the potential to harm female sports and female athletes who do not fit the accepted norm of womanhood, it is not too late for the rules to be repealed. No one thing makes us females. Females come in all shapes, sizes and colors; with different athletic, mental and social abilities; and should not be hindered by antiquated beliefs about what they should do and how they should look while doing it. The new, and unjustified, rules on HA lack scientific backing, they discriminate against females and athletes with unusual genetic mutations, and they promote gender discrimination. With so many problems and no solutions, we have to ask, what’s taking so long for the rules to be repealed?
Karkazis, Katrina. Out of Bounds. The American Journal of Bioethics, 12(7): 3–16, 2012. Available here.