3.1. Integrity & Solidarity
The relevant ASOIF guidelines on implementing integrity primarily rest on the ethical principles set out in the IOC Code of ethics (ASOIF, 2016 [25
]). Article 1 of the IOC code sets out fundamental principles and states that ISFs should have respect for the Olympic spirit, requiring mutual understanding with a spirit of friendship, solidarity and fair play (International Olympic Committee, 2016, Code of Ethics, Article 1.1. [26
The Sports Governance Observer explains solidarity as recognizing responsibility towards internal and external stakeholders (Geeraert, 2015 [2
]) and, it is suggested, encapsulates the need to support all internal stakeholders (including athletes), to promote inclusivity as well as recognition of a wider obligation towards society. As such it makes sense to consider the principle of solidarity together with integrity as they raise similar concerns in the context of the Testosterone Regulations.
Article 1 states that ISFs should have respect for international conventions protecting human rights which ensure, in particular, respect for human dignity and the rejection of discrimination of any kind on whatever ground (Art. 1.4). It is worth emphasizing that the wording is unequivocal and there is no qualification to the objective of rejecting discrimination; there is nothing to suggest that discrimination is acceptable in some circumstances or in relation to some characteristics.
The IAAF’s has, to some extent, embedded these principles in its constitution, the current version of which recognizes that one of its purposes is to ‘preserve the right of every individual to participate in Athletics, without unlawful discrimination of any kind undertaken in the spirit of friendship, solidarity and fair play’ (IAAF Constitution, 2019) Art 4.1 (j) [19
As such, there is a slight mismatch between the more complete statement of IOC Code of ethics and the IAAF’s recognition of its constitutional obligations to ensure integrity.
In identifying potential human rights concerns raised by the Testosterone Regulations the Universal Declaration of Human Rights (UDHR) provides an obvious and extremely useful framework against which to identify such concerns (Larson, 2011 [27
]). Of particular relevance are Articles 1, 7, 12, 22 and 29 of the UDHR [28
Article 1 makes an explicit acknowledgement that ‘all human beings are born free and equal in dignity and rights and should act towards one another in a spirit of brotherhood’. Article 22 recognizes that everyone is entitled to realize their economic, social and cultural rights indispensable for their dignity and the free development of their personality (emphasis added).
Article 12 expressly protects an individual’s rights to privacy and from suffering attacks on their reputation.
Article 7 and 22 both recognize that individuals should not be discriminated against. Article 22 makes specific reference to the need to ensure that individuals have their rights and freedoms protected without distinction of any kind, such as race, colour, sex…birth or other status.
Article 23 protects the right to work and free choice of employment
Article 29 recognizes the possibility of limitations on these freedoms, but only lawful limitations ‘solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements or morality, public order and the general welfare in a democratic society’.
This is far from the only relevant international convention relating to the protection of Human Rights. The UNESCO International Charter of Physical Education, Physical Activity and Sport recognizes as a fundamental principle that access to sport should be without discrimination and that sport should be inclusive and promote equal opportunities for all. The International Covenant on Civil and Political Rights and the European Convention on Human Rights also protect against non-discrimination. Beyond embedding these commitments in their constitutions, Schwab makes the point that ISFs need to translate the general commitments into actions and decisions taken by conducting due diligence in assessing and mitigating against human rights risks; and dealing with human rights issues transparently (Schwab, 2017 [29
Thus, if the IAAF is to adhere to ASOIF principles of integrity and solidarity, it has an obligation to ensure protection of every individual’s rights to dignity, privacy, non-discrimination and the development of their personality not only in the creation and implementation of regulations and policies, but also in their application and implementation on a day to day basis. According to the UDHR, failure to adhere to this obligation is only be permissible if it is to secure the rights and freedoms of others.
The historic treatment of Caster Semenya (and other athletes with DSDs) resulting from the introduction and implementation of policies and regulations designed to police female eligibility raised serious concerns about human rights violations. Using Semenya’s case as an example, specific potential violations by the IAAF might have included: restricting the free development of her personality by the assignment of biological sex (against her own perceptions), which would also likely interfere with her dignity; being forced to undergo invasive assessment to verify biological sex (dignity, privacy), having no control over information about your own medical conditions (dignity, privacy), being forced to divulge information about extremely personal medical issues that go to a sense of identity (dignity, privacy), being prevented from competing without taking medication (expression of personality, dignity, freedom to work); having the whole issue played out in public (privacy); being required to undertake the process of sex verification when others are not (discrimination); having your reputation muddied by being labelled a cheat (reputation). Add to this the potential psychological damage resulting from such violations and the fact that the verification only applies to selected women (and no men) and you have a lengthy list of human rights concerns.
Of course, the IAAF sought to address some of these concerns through the use of testosterone levels to determine eligibility for competing in female events rather than testing for biological sex per se. However, as already discussed, it is difficult to distinguish the effect. From the perspective of an athlete with a DSD, the distinction between being told you are not biologically female and being told you are not ‘athletically’ female is one that is likely to get lost in explanation.
The Testosterone Regulations have explicitly recognized the need to protect the dignity and privacy of relevant athletes (DSD Regulations, Art 3.4 [7
]) and the process of investigation has been made clearer, including an attempt to define the basis on which an investigation would begin (DSD Regulations, Art 3.3 [7
]). However, this does not change the fact that the substance of the regulations mean that there will always be significant interference with the athlete’s right to express her personality, her dignity, her right to privacy, her right to not be discriminated against and her right to realize her economic potential. For example, an athlete is still required to report sensitive, private medical information to the IAAF and, although ‘reasonable grounds’ are required, an investigation can still be undertaken on the instigation of the IAAF, provided it has a ‘reliable source’ (leaving plenty of scope for subjective selection of athletes and influence from those with their own motives).
The IAAF constitution recognizes that discrimination might be ‘lawful’. As illustrated in Semenya
, lawfulness of discrimination is considered a question of ‘proportionality’ and is limited to considering whether the regulations are necessary and proportionate to the legitimate aim to be achieved. In Semenya
, the CAS, starting from an assumption about the legitimacy of the aim, found that it was proportionate. Whilst the legal principle recognizes that there is a ‘margin of appreciation’ for rule creators to determine both what is a legitimate aim and what is necessary to achieve that aim, that freedom is not absolute (Rivers, 2006 [30
]) and the appropriate exercise of that freedom was not considered in Semenya
. Outside the narrower question of lawfulness of the discrimination, there is also a wider ‘good governance’ question posed by the UDHR, which acknowledges that an individual’s rights and freedoms should only
be infringed in the interests of protecting the rights and freedoms of others. In other words, the fundamental question is whether the Testosterone Regulations strike an appropriate balance between protecting the rights of athletes to whom the regulations will be applied and protecting the rights and freedoms of others. The difficulty of the balancing exercise for the IAAF, which was not considered in Semenya,
is that it is not immediately obvious which UDHR rights and freedoms are being infringed by DSD athletes being allowed to compete. Presumably the IAAF would consider that the right of others (i.e., ‘normal’ females) to compete on a ‘level playing field’ trumped the various infringements of the rights of athletes with DSDs and is necessary to ensure ‘fair play’ (Krech, 2017 [11
]). However, referring to the IAAF’s own scientific evidence and considering what ‘normal females’ would be losing by competing against athletes with DSDs, it is far from clear that it would be much more than a reduced opportunity of winning. As a pure human rights question, it seems difficult to justify, that a reduced opportunity of winning should outweigh the potential serious infringements of the rights and freedoms of individual DSD athletes, a task made even harder when you consider more fully the whole notion of fair play in sport.
3.1.1. The Meaning of Fair Play
Whilst it is not the purpose of this article to re-enter the debate about the concept of ‘fair-play’, it is important to make some observations about key aspects of it. First and foremost, fair play incorporates the requirement to play by the rules, at least in terms of the spirit or ethos of them, if not always the ‘letter’ of them (Butcher and Scheider, 2003 [31
]). Secondly, and importantly in the context of the Testosterone Regulations, it would also seem to import an idea of equality of opportunity. This is, of course, at the heart of the IAAF’s reasoning for pursuing both the retention of the male/female classification and the imposition of the Testosterone Regulations. However, it is important to recognize that equal opportunity does not require
segregation of events into male and female classifications and that doing so is an ongoing choice by the IAAF and a means to achieve the wider aim of fair play. That choice of means may be justified when considered against other possible means of achieving the aim and against the other aims and purposes of the IAAF (such as development of the sport), but it is an ongoing value judgement that needs to be recognized as such and re-evaluated from time to time.
Third, fair play encapsulate abstract, non-sport specific values that are seen by society, generally, as positive; the types of values that have historically been used to justify playing and watching sport as a social or public good, such as understanding and empathy for others (Butcher and Scheider, 2003 [31
]) and an appreciation that winning is not everything. Embracing such values is important in demonstrating solidarity by promoting values and practices that contribute towards a better society (Geeraert, 2015 [2
]). Although these values are not always present in sport there are enough examples of conduct which is rightly lauded for demonstrating ‘fair play’ and which have the power to showcase and encourage positive social values (the memory of Paulo Di Canio playing for West Ham and catching the ball when the opposition goalkeeper collapsed to the turf instead of heading the ball into an empty net sticks in the author’s mind).
Accordingly, when ISFs are considering how to promote and achieve ‘fair play’, it should be appreciated that the concept itself encapsulates more than ensuring approximate equality of opportunity and playing by the rules and, as such, there is an inherent difficulty in using ‘fair play’ to justify infringements of human rights and human dignity before you even consider wider purposes such as ensuring solidarity and integrity.
3.1.2. Medical Care and Solidarity
It should be appreciated that, as a matter of solidarity, the IAAF have stressed that the Testosterone Regulations will help athletes receive medical care for conditions of which they were unaware (Chand
, DSD Regulations, 2018 [3
]). However, it is submitted that this justification does not really support the need for testosterone based regulations that exclude athletes from competition. Medical diagnosis and support could clearly be provided without the need to determine eligibility based on testosterone levels.
3.3. Sports Development
The development of individual sports and sports in general, in terms of participation, attention and securing resources are reflected in the ASOIFs principles and in the IAAF’s constitution (IAAF Constitution, 2019, Art 4.1 (b) and (l)).
In the context of the Testosterone Regulations, the potential development effect on participation of females in elite athletics if they were required to compete against men has always formed an important part of the rationale for segregation by sex (IAAF Explanatory Notes 2019; Chand
]). However, it is difficult to see how that rationale supports the Testosterone Regulations themselves, unless
it is backed up by evidence that athletes with DSDs enjoy such an advantage that normal female athletes could not and would not compete at all or, at least, that there would be a significant reduction in participation. Whilst it may be plausible to accept (without any empirical evidence) that few, if any, females would be seen in the majority of elite athletic events if they had to compete against men it does not follow that we should accept, without evidence, that there is or would be an significant effect on participation in elite female athletics if athletes with DSDs were allowed to compete without restriction. Without such evidence, the justification is no more than a hunch, raising an important question about the role of factual evidence in the IAAF’s decision making. This concern is particularly warranted given that the IAAF’s evidence about performance advantage of females with high levels of testosterone does not seem to suggest, from what we have seen at present, that athletes with high levels of testosterone benefit from close to the 10–12% ‘male’ performance advantage.
Whilst the ‘development’ of athletics might have been a relevant factor justifying the segregation of male and female athletes historically, it should not be confused with a relevant justification for the Testosterone Regulations, which it is suggested can, at present, only be justified by reference to the notion of fair play. In using the ‘sports development’ or ‘protection of female athletes’ argument as a justification for the Testosterone Regulations, the IAAF is conflating two different issues.
3.6. Testosterone Based Regulations; an Appropriate Policy to Further the IAAF’s Stated Purposes?
In the DSD Regulations and the explanatory notes that accompany them (IAAF, 2019 [7
]) the primary reasons for adopting the policy were (1) to ensure ‘fair competition in female athletics’ and (2) to protect ‘the protected class’ of female athletes. These reasons were also highlighted by the CAS in Semenya
as the legitimate objective that the IAAF was pursuing (CAS, 2019 [18
However, it should be appreciated that the IAAF constitution contains no specific purposes which relate to ensuring fair competition in only
female athletics or to ensuring a male/female categorisation is retained in order to protect female athletes. The relevant provision would seem to be Article 4.1(j) which illustrates that the purpose that the IAAF should be seeking to achieve is to (1) ‘to preserve the right of every individual to participate in Athletics without unlawful discrimination of any kind’, and (2) to ensure that athletics is ‘undertaken in a spirit of friendship, solidarity and fair play’ (IAAF Constitution, 2019 [19
]). This is important as it clarifies that both the decision to retain separate male/female categories and to pursue the Testosterone Regulations are merely possible
means towards achieving the IAAF’s wider purposes. Whether they are an appropriate means requires a value judgement based on a proper consideration of all of the IAAF’s stated purposes (including adherence with external principles of good governance) and the impact of the means on achieving its stated purposes. That judgement requires full consideration of other possible means of achieving those purposes, and particularly, any means that might cause less conflict with other purposes such as non-discrimination, integrity, solidarity and which also underpin (the wider notion of) fair play.
Other possible means of achieving those purposes might have been: classifying by legal gender; classifying by lean body mass; classifying by testosterone levels alone; introducing a handicap system within sub-categories or a handicap system that applies to all athletes regardless of sex or gender. From the decisions in Chand and Semenya, we can observe that the IAAF rejected classification by legal gender on the basis of potential for unfair advantage. However, due to a lack of transparency about the decision making process, it is impossible to know what other possibilities have received serious consideration as a potentially ‘better’ means of advancing the IAAF’s purposes as a whole and the reasons for their rejection. Inevitably, this raises questions about the quality of decision making and whether ‘external’ motivations are driving the policy. This is particularly so given the evident conflicts of purpose and principles of good governance that the current policy creates with regard to integrity, solidarity, non-discrimination and fair play.
Furthermore, as already pointed out, the protection of the female athletes cannot form the basis of a justification for the testosterone regulations unless there is reliable evidence that the unrestricted participation of athletes with DSDs would result in reduced participation and interest in athletics. It is possible that such evidence exists, but it does not seem to have been referred to in any rationale that the IAAF has put forward. As such the only plausible justification has to rest on the notion of fair play.
3.7. The Problem with Integrity, Solidarity and Fair Play
As already alluded to, it is difficult to see how the possible reduction in the likelihood of ‘normal’ female athletes winning could ever be appropriately balanced against the consequential interferences of human rights associated with the application of the Testosterone Regulations. This is so even if you accept the argument that the medical intervention required to reduce testosterone to eligible levels will amount to no more than taking oral contraceptives (something that seems to have been accepted by the CAS in Semenya). This balancing exercise becomes even harder still when you consider the evidence that the IAAF has relied on seems to demonstrate, at best, a relatively small performance advantage (0.3–3.1%) for women in the highest tertile of testosterone levels over those in lowest tertile of testosterone levels, and then only in the handful of events to which the regulations apply (Bermon et al., 2018; Bermon and Garnier, 2017). It is suggested that, in order to ‘warrant’ the discrimination and other human rights interferences, it would be necessary to demonstrate the advantage that females with DSDs enjoy is so large that ‘normal females’ cannot compete at all. Only then will ‘normal’ female athletes be losing something that could be recognisable as a human right or freedom.
At the very least, forced medication (even if it is ‘only’ oral contraceptives) with, presumably, unknown effects on individual athletes, seems an odd way of balancing human rights issues. If the effect of testosterone is to provide a quantifiable performance advantage; wouldn’t a less invasive solution be to compensate by reference to time? The IAAF has referred to evidence that female athletes who took medication to suppress testosterone levels from 21–25 nmol/L to 2 nmol/L had a reduced performance of 5.7% (IAAF Explanatory Notes, 2019 [5
]). If that evidence is scientifically reliable, then why not require a percentage time handicap?
A particular concern is that historical, cultural and institutional barriers are unduly influencing the approach that is now being taken. When little was known about either the underlying reasons for the ‘male advantage’, or the complexities of biological sex, categorisation by biological sex may well have been appropriate (or at least practical) as a proxy for ensuring both fair play and the protection of female athletes, but that does not necessarily make it so now. If, as the IAAF suggests, testosterone levels are the primary reason for the ‘male advantage’ and seemingly, provide a measurable and quantifiable advantage (key to the reasoning of the IAAF and the decisions in the CAS (Pielke et al., 2019 [15
]) then we have gone beyond crude observations about men being faster than women and the consequence would seem to be that segregation by sex is no longer needed as a proxy means of ensuring fair play or ‘protecting’ female athletes. Segregation by sex is, therefore, more clearly shown for what it is, a policy choice
of the IAAF. If that choice creates significant conflicts with the IAAF’s stated purposes then other options that better reflect its purposes (and good governance principles), should be considered. Perhaps the prospect of men and women competing against each other is too radical, but why that is a problem and the basis of the decision ought to be properly justified in a transparent and democratic way.
Furthermore, to reflect its stated purposes, the IAAF’s wider policy should be about protecting against ‘unfair’ advantages regardless of sex or gender. The concern should not be about protecting only female athletes, it should be about protecting all
athletes from those that might have an unfair advantage. It is that purpose which should inform a search for scientific evidence to determine the size of the advantage enjoyed and, only then, regulation to address any significant unfairness. If the scientific evidence supports the conclusion that testosterone (or indeed any other genetic factor) provides a sufficiently large advantage and possibly affects women and men significantly differently, then subsequent regulation may be necessary and might need to reflect that. However, from the historical background to the Testosterone Regulations and from the scientific evidence on which the IAAF purports to rely, that does not appear to be the approach that has been taken. For example, in the Bermon and Garnier studies (Bermon et al., 2018; Bermon and Garnier, 2017 [16
]) on which heavy reliance is placed, the data in relation to male performance differences based on testosterone levels is far less than the female data (the female data is taken from both the Daegu and Moscow IAAF world championships, but the Daegu world championships is not used in relation to male athletes) and there is a fairly blunt conclusion that there is no significant performance difference between the males with low testosterone levels and those with high levels. Since the whole basis of the Testosterone Regulations is that increased testosterone does
provide a performance advantage, it seems strange that the IAAF have not sought to explain or investigate this further, especially given that other academic evidence relied on by the IAAF suggests increases in testosterone in healthy adult males increases muscle strength and size in a linear fashion (Auchus, 2018 [9
]). When you also take into account that the revised figures produced by the amended Bermon & Garnier 2018 study suggest that there is no statistically significant performance advantage for females in the higher tertile of testosterone in three of the four events that are now regulated (Pielke et al., 2019 [15
]), this seems to suggest a blinkered agenda. Quite why the cut-off point for eligibility is 5 nmol/L to ensure that women with PCOS are not caught is not fully explained (despite noting the higher level of testosterone and the disproportionate numbers in elite athletics) and again is suggestive of an agenda beyond simply levelling out unfair performance advantages.
Finally, if the Testosterone Regulations are to be ultimately justified by the level playing field argument it is difficult to see why one natural biological advantage is unfair without having evidence of the advantage that other natural biological advantages actually play. The answer seems to be to refer to the fact that ‘the male advantage’ is the single most significant biological factor in determining athletic performance and testosterone is the primary cause of that advantage. However, if ensuring fairness is the aim, the only question should be whether the performance enhancing effects of testosterone provide a significant advantage beyond other genetic advantages. It is totally irrelevant whether testosterone is the primary reason for the ‘male advantage’; the only question should be what performance advantage it provides and whether it is out of sync with other genetic advantages. So if, as the IAAF evidence suggests, a female with high testosterone levels has a 5.7% performance advantage (IAAF Explanatory Notes, 2019 [8
]), surely the question should be how that compares against other genetic advantages, such as having the ‘sprinting’ gene for example.