Can You Tell Me If I Am a Woman?

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Since time immemorial, generations are being trained to identify men and women in a certain manner. Men are supposed to be strong, muscular, broad-shouldered, with a deep husky voice, while anyone with a curvy shape, long, wavy hair, and a high-pitched voice is presumably a woman. Added to this, are the organs like testis and ovaries and the last but not the least, the “male” and “female” hormones. But what if a woman is born with a deep husky voice or a man is born with a petite “woman­‐like” body or yet another woman who is born with a natural tendency to produce more of a specific “male” hormone? Does that make such a man a woman and vice versa?

This is the question that has been repeatedly asked by the supporters of Caster Semenya. Not just her supporters, but human rights and gender advocates around the world have been asking – why does a woman have to prove that she is a woman or that she’s a “normal” woman within the parameters set by the World Athletics (formerly known as the International Association of Athletic Federations (IAAF)) in order to compete against her peers in international sports.

In order to understand what led to the decision restricting Semenya from competing in the 400m, 800m, and 1500m, let us delve a bit into the history of sex and gender verification in world athletics.

History of Gender Verification Tests

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Traditionally, women were not allowed to compete in sports for certain “obvious” reasons, some of which was not unheard of even in the 1980s and 1990s. Reasons like playing sports can harm women reproductive system, women who compete in sports wouldn’t be able to bear children or sports need strength while God created women for raising children which makes them the flag bearers of emotions and love, but the term strength is something that has always been synonymous to “men”.

Later, when with time women were allowed to compete in sports, international sports competitions were divided into men’s and women’s categories. And to certify whether a particular sportsperson belonged to the gender category claimed by the said sportsperson, various “sex verification tests” began to be adopted by the federations and councils. In 1950, IAAF began sex verification tests of participating women athletes who were all tested in their respective countries, and thereafter official tests began in the year 1966, followed by similar tests by International Olympic Committee (“IOC”) at the 1968 Summer Olympics. Early sex verification tests comprised of nude parades, physical examinations, and chromosome tests.

An early example of a sex verification test is that of the Polish sprinter Ewa Klobukowska, who failed the IAAF chromosomal gender test and was banned from competing in any professional competitive sports.

Abandonment of Gender Verification Tests and Present Situation

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While the sports bodies have abandoned gender verification tests, the regulations of these bodies (including IAAF and IOC), still give them a right to conduct such a test if deemed necessary. The situations that necessitate such tests are usually complaints and observations made by fellow athletes or sports body members, referees, and other probable “observers” regarding the physical traits, muscular frame, and physical demeanour of a particular athlete. To simply put, if there is a concern that a particular woman athlete has a “manly” body frame or looks more like a man, the sports bodies reserve a right to conduct a gender verification test of the athlete in question.

Two of the most talked-about such cases are that of Dutee Chand and Caster Semenya.

Case of Dutee Chand – Hypernandrogenism Regulations 

Dutee Chand, an Indian athlete, challenged the validity of the IAAF Regulations Governing Eligibility of Females with Hyperandrogenism to Compete in Women’s Competition (the “Hyperandrogenism Regulations”) before the Court of Arbitration for Sports (CAS). The Hyperandrogenism Regulations, then in place, restricted female athletes with high levels of naturally occurring testosterone from participating in competitive athletics. The primary basis for Chand’s challenge was that the Hyperandrogenism Regulations are based on flawed factual assumptions about the relationship between testosterone and athletic performance.

The most precarious criteria used in the Hyperandrogenism Regulations that render a woman ineligible to compete in female category included a level of testosterone greater than 10 nmol/L and a physical examination to assess androgen sensitivity/androgen insensitivity or body’s responsiveness to testosterone. The argument put forth by IAAF was that testosterone levels greater than 10 nmol/L in female athletes, put such athletes in a position of advantage vis-à-vis other women athletes with “normal” levels of testosterone and therefore, such hyperandrogenic female athletes should not be allowed to compete with other female athletes. Following the challenge by Dutee Chand, CAS delivered an interim award suspending the Hyperandrogenism Regulations for a period of 2 years (up to 2017) and providing that IAAF could submit further evidence and expert reports supporting their claim.

Case of Caster Semenya ‐ Differences of Sex Development Regulations

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In 2018, IAAF approached CAS and submitted that it wished to replace the Hyperandrogenism Regulations by new regulations underlining eligibility criteria for female athletes with Differences of Sex Development (DSD Regulations). As per the DSD Regulations, a female athlete with circulating testosterone levels in the blood of 5 nmol/L or above is restricted from participation in all track events over distances between 400m and one mile (inclusive).

The new DSD Regulations had a colossal impact on Semenya, who once again came under the cruel radar of sex verification and related restrictions. Semenya was earlier banned in the year 2009 under the erstwhile Hyperandrogenism Regulations, which kept her out of action until 2010. After her re‐entry in 2011, a fresh blow came her way in 2018 with DSD Regulations.

With the advent of DSD Regulations, the proceedings in Dutee Chand’s appeal were suspended as due to this new development, the events in which Chand participates that is, 100m and 200m track events were outside the purview of DSD Regulations. The new development, however, almost entirely wiped Semenya off the world athletic map.

As is evident from the history of sex determination tests and the development of gender and sex determination standards until now, there’re neither any uniform standards that have been developed by international sports bodies nor have they been able to prove any direct relationship between naturally high testosterone levels and the athletic performance. The inconsistency of the rules, regulations, and methods is evidence enough to show that there is no actual advantage that such athletes get over others. The only thing that appears to be concrete and consistent is the quest to control and restrict these exceptional women with natural talent.

As per IAAF, DSD Regulations are based “on a strong scientific, legal and ethical foundation”; that high levels of testosterone are the primary cause of physical advantage. The DSD Regulations are the only way to protect other female athletes with regular “acceptable” levels of testosterone. IAAF also provides that a female athlete restricted under the DSD Regulations must take medications to lower the levels of testosterone in her body before she can be allowed to participate again.

It is pertinent to mention that the medications that need to be taken to suppress and lower the testosterone levels are essentially oral contraceptives, and prolonged use of such contraceptives may lead to other health concerns for female athletes. A clear testimony was given by the gynaecologist who Semenya was referred to during her 2009 ban. She said Semenya agreed to take the medication, but soon felt the ill effects of these contraceptives. The doctor went on to state that IAAF’s preferred way of “treating hyperandrogenism was gonadectomy or castration”. However, she strongly recommended against these procedures, as there is extensive evidence available that it would cause “dramatic physical and mental deterioration”.

There were a few other doctors who testified that there is no direct correlation between testosterone levels and athletic performance and that DSD Regulations are ‘discriminatory, unnecessary and harmful”. It was also pointed out that in some cases, the humiliation and mortification faced by athletes who are singled out and isolated in this manner can have grave repercussions leading to “severe depression, substance abuse, alcoholism, and even suicidal tendencies”. It was seen in the case of an Indian athlete who committed suicide due to constant at the hands of her coach who threatened to make her intersex status public.

Even though such strong testimonies were given by the witnesses and although CAS found DSD Regulations to be discriminatory, they were nevertheless upheld by CAS and the arbitral award was issued in favour of IAAF. The tribunal also chose not to give any decision on the question of whether the DSD Regulations violate domestic and international human rights.

Semenya also lost her final appeal in the Swiss Federal Tribunal (SFT) however, given the courage and valour she has, she has vowed to “continue to fight for the human rights of women athletes”.

Natural Physical Advantage ‐ Boon or Bane? 

An important question that arises from this analysis is whether this “natural physical advantage” is a boon or a bane? It may well be concluded that for some or let’s just say for men competing in professional sports, such a “natural advantage” is seen as a “god gift” or “natural talent”; quite contrary to the views expressed over female sportspersons like Caster Semenya, Dutee Chand, and Serena Williams. The world has seen many such legends who were born with natural talent and advantage over their peers. Would it not be unfair to be competing against the likes of Lionel Messi, Rory Mcilroy, Rafael Nadal, and Usain Bolt?

If the answer to the above is yes, then why is it that equal opportunity and preservation of equality and integrity become prime objectives for female elite sports? Why is it that women who have been born and raised as women and have identified themselves as women are asked again and again to prove their “femininity”? Is it not a violation of their basic human rights when women are discriminated against based on their gender?

And lastly, based on a fragile theory supported by insubstantial facts and evidence, can a woman be told that she isn’t a woman; that her gender will be decided not by her upbringing and her thoughts, but by the chemical composition of her hormones and chromosomes; that her natural talent and advantage is not exactly a god gift but it is a tool that can be used against her to restrict and restrain her.

Conclusion

These are some of the questions, which were left unanswered by CAS while delivering the arduous award against Semenya. Those who know the resilience and perseverance inherent in Caster Semenya are certain that she would find a way to bounce back. However, we just hope that when she does, she is given the rightful recognition of her natural gift and she is successful in reclaiming her glory.

We also hope that with the continuous fight from brave hearts like Dutee Chand and Caster Semenya, we will certainly witness the day when supporters of promulgators of such policies will realize that no hormones or tests can testify and attest someone’s womanhood; it is way beyond long locks, curvy body, ability to bear children and some random laboratory test results of hormones and chromosomes.


Karteekka Tyaggi is a corporate attorney, who started her career with civil and criminal litigation in India. She then moved on to work in the United Arab Emirates and gained experience in claims related to employment, divorce, child custody and women’s rights. Around the same time, she also gained substantial experience in arbitration as well as commercial and corporate legal practice, having advised multi-jurisdictional corporates, government entities and individuals on a wide range of matters including, cross-border disputes, commercial transactions, compliance and corporate social responsibility. During this time, she dealt with several cross border issues and matters having worked with clients from Europe, Middle East and Asia. In December 2019 Karteekka moved to Geneva and is now managing her legal practice between Geneva, India and UAE. At the same time, she is working with respect to issues related to sexual harassment, gender issues, children’s rights and human rights claims.


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