By Abhinav Gupta
Rules and regulations of sports competitions separate participants into various categories and prevent them from competing against participants from other categories in competitions and events. For instance, participants are segregated in boxing and wrestling on the basis of their weight and competitions at junior levels are segregated on the basis of age. These segregations are uncontroversial, foster increased participation and permit recognition of accomplishments at varying levels of capabilities. On the other hand, competitions are also segregated into men and women categories on the basis of gender and sex.
This blog-post does not deliberate upon the broader concern regarding binary segregation wherein past literature has argued for abolishing such distinction and establishing unisex competitions. Instead, this post shall focus on the concerns regarding the prevailing structure in sports competitions where the female category is based on testosterone levels in women athletes. The current structure shall be scrutinised from a human rights perspective wherein an attempt is made to engage with the arguments made by the proponents of the said structure and to provide a fresh perspective to the problem.
Tracing the Development and Controversies Surrounding The Current Structure
Traditionally, men’s competitions are reserved for people with biologically, both hormonally and physiologically, male bodies, while women’s competitions are reserved for biologically female bodies. For females specifically, ‘sex testing’ was introduced in the 1930s where athletes and the team’s physician had to present an affidavit confirming that the participant was in fact a woman. In the 1960s, the International Olympic Committee (‘IOC’) and the International Association of Athletics Federations (‘IAAF’) introduced a more rigorous chromosomal verification test which was based on the assumption that a person’s sex could always be determined by the biological information derived from the DNA. Due to the scientific flaws with this test that were highlighted later, this form of testing was dropped and was replaced by a visual health check by doctors wherein female athletes were paraded naked. Facing further scrutiny, it was only in the late 1990s that the IOC and the IAAF did away with systematic sex testing for females.
Presently, female athletes are scrutinised when someone disputes or challenges the sex of the female athlete. The procedure followed by both IAAF and Athletics Federation of India (‘AFI’) is the determination of high testosterone level or hyperandrogenism in female athletes. According to IAAF policy, which has to be followed by AFI in order to send its athletes for international competition, a female has to have a blood testosterone level below five nanomoles per litre for at least a continuous period of six months before the competition. Females who have a higher testosterone level are disqualified from competing on the premise that they have an ‘unfair’ advantage over their female counterparts.
Such regulations and laws of sports have raised numerous controversies in both India and abroad. One of the most publicised has been the case of South African athlete Caster Semenya who is a two-time Olympic gold medalist. Semenya was charged with possessing a higher testosterone level than permitted for women. The Court for Arbitration for Sports ruled 2:1 in favour of the said cap on testosterone level set by the IAAF. The Tribunal concluded that such segregation was necessary for protecting the rights of other female athletes. Subsequently, Semenya was forced by authorities to take steroids and testosterone-lowering drugs in order to participate in competitions as a female.
In India, the case of Dutee Chand is an example of scrutiny by the IAAF, AFI, and the Sports Authority of India (‘SAI’), on the issue of hyperandrogenism for her supposed ‘masculine stride and musculature’. The doctors declared Dutee Chand as intersex following which the IAAF and AFI decided that she could not compete as a female athlete. Intersex conditions occur around the world wherein a person’s biological or physical characteristics cannot be categorised into male or female. IAAF, much like the case of Semenya, conditioned Dutee Chand’s participation on her taking testosterone-lowering drugs. Numerous other women such as Shanti Soundarajan have been subject to such testing by the Indian authorities and the IAAF. Shanti won a silver medal in the 800-meter race in the 2006 Asian Games but was later informed that she had failed her sex determination test that was conducted due to objections raised by her opponents. Following this determination, Shanti was barred from competing in future sporting events, and her silver medal was taken by the IAAF.
This procedure of determination of a female’s sex by the Indian and foreign authorities arguably has human rights implications. The same are discussed in the next section.
Human Rights Implications Of The Current Structure
Intersex conditions occur around the world, such as in the case of Semenya, Chand, and Shanti. Despite such immense diversity in gender and sex across cultures, the sports world and its law and regulations have remained largely restrictive.
The supposed purpose of introducing limits to testosterone levels for women is to reduce the impact of insuperable physical abilities in determining the results. This purpose is said to be served by categorisation that is linked to biology or physiology. Thus, from the authorities’ perspective, classification based on gender identity or gender expression alone would be worthless unless it is linked to biological sex. It is because this will reintroduce the problem of insuperable physical abilities, which was supposed to be eliminated by having separate men’s and women’s categories. Another argument that the proponents of such segregation make is that the current structure per se does not deny anyone an opportunity to compete on the basis of gender or sex. Instead, requiring a person to compete in different categories from what they might have preferred is not the same as denying them from competing.
However, these arguments hold little grounds when looked at from human rights and anti-discrimination perspective, especially since it pertains to rights that protect gender identity and expression. It is argued that when the authorities, through testing, restrict the participation of an athlete in a particular category that contradicts the chosen identity of the individual, the right to recognition and treatment that is consistent with the person’s expressed gender identity is violated. Such forced testing can be construed to be manifestly arbitrary under Article 14 of the Indian Constitution for wrongful discrimination against intersex athletes. The doctrine of manifest arbitrariness refers to actions performed by the State that are capricious, excessive, irrational, disproportionate, or without any determining principle. Chandrachud J. in Joseph Shine v. Union of India stated that State measures could be subjected to stricter scrutiny under manifest arbitrariness if they impact subjugated classes. Consequently, the court has used this doctrine to legalise the rights of non-heterosexual gender identities and strike down adultery.
The current policies of AFI and SAI subject intersex athletes, who are already subjugated by society, to a special burden of demonstrating their eligibility as a female, which acts as a disrespect to their expressed gender identity. Further, there is no conclusive evidence that such increased testosterone level in inter-sex athletes give them insuperable physical abilities or substantial advantage, as claimed by authorities.
On the other hand, many male sportspersons with hormonal or genetic variations that bring certain advantages in sporting events are not subjected to such scrutiny. One of the well-known examples is of Michael Phelps, who has Marfan syndrome. This syndrome enables Phelps to have a body proportion that cuts through water more easily than other normal bodies. Further, Phelps’ body also produces half the lactic acid than in a normal athlete. Lactic acid produces fatigue in the human body and thus gives Phelps an undeniable and enormous biological advantage over his competitors. Neither has such biological conditions been questioned by the authorities, nor has Phelps been called out for ‘not being male enough’.
Yet, when it comes to female athletes such as Dutee Chand and Shanti Soundarajan, biological variations that may or may not be advantageous are easily questioned and less accepted by the sports authorities. This highlight the disproportionate measures of the concerned authorities. Evidently, from the above discussion, it can be observed that the measures from the sports authorities do not stem from any rational arguments that can counter the fundamental rights of such athletes. The regulations seek to define gender based on an artificial threshold of testosterone level. They are disproportionate, capricious and manifestly arbitrary and violate the fundamental rights of the sportsperson under Article 14 of the Constitution.
The United Nations Human Rights Council has also voiced its concerns stating that these regulations are not compatible with the international human rights and standards, including the rights of women who have a different sex development. Further, it also opined such classification to be based on illegitimate and non-justifiable evidence, thus not being reasonable and objective.
The proponents of testing for hyperandrogenism may also argue that allowing participants to compete based on their gender identity might open the doors for women who possess male biological characteristics to compete along with other women. This would result in such individuals dominating the sport in their respective category. Thus, it will undermine the purpose of sex segregation that is to ensure that women have an equal opportunity to gain benefits associated with the competitions, such as winning.
However, this argument again misses the purpose of anti-discrimination rights and gender identity. The proposition that self-determined gender classification would hinder the objects of empowering and promoting women in sports assumes that women who possess male biological characteristics are not really women and are not the type of women that were intended to benefit from sex segregation in the first place. Thus, this differentiation between ‘real’ women and those who are ‘merely’ women conflicts with the notion of respecting gender identity and expression.
The assumption – already countered by empirical research – that females with high testosterone level might dominate the field of sports fails to answer the current structure’s concerns, which does not respect gender identity rights and expression. Such policies are shown to be manifestly arbitrary and against the notion of equality under Article 14 of the Constitution. The Indian State authorities such as AFI and international organisations such as the IAAF need to formulate policies and regulations that ensure all genders and sexes have equal opportunities to participate in sports without facing human rights abuse. Gauging the experience of sportspersons such as Dutee Chand and Shanti Soundarajan, there is a need to progressively implement policies that are not arbitrary but inclusive of intersex individuals.
While establishing the different categories in sports, the authorities must consider the concerns of gender minority individuals alongside other competitors. The sports authorities have tried to create an artificial threshold for female athletes while having no such limits for male athletes who have biological advantages over their competitors. The policies and stipulations need to be inclusive, appreciative and respectful towards the gender identities of the female inter-sex athletes.
The author, Abhinav Gupta, is currently a law student at the National University of Juridical Sciences (NUJS), Kolkata.
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 Supra note 37.