In July 2015, Dutee Chand, a sprinter from India, challenged regulations prohibiting female athletes with hyperandrogenism^[i] from competing in international competition.^[ii] According to the definition of female, which is “of, relating to, or being the sex that bears young or produces eggs,”^[iii] Dutee undoubtedly qualified as female based on the presence of ovaries, a uterus, and female genitalia. However, the regulations barred her from competing because of high levels of naturally-occurring testosterone.^[iv] Questions from cases like this arise: Is a binary sex paradigm appropriate to categorize individuals with biological, chemical, or social traits that range across a spectrum?^[v]  If so, what factor(s) should international sporting organizations, such as the Internal Olympic Committee (IOC),^[vi] use when placing individuals into this binary paradigm? These questions arise because the concepts of male and female are defined in a number of different and conflicting ways.

This paper argues that the binary sex^[vii] framework currently used by the IOC to categorize athletes as male or female –with the goal of ensuring fairness, replicability, and harmonization— does not consider the complexity of sex. Part I discusses the various ways sex is understood, including cultural, anatomical, biological, hormonal, chromosomal, and personal approaches. Part II discusses the historic role of sex testing in sports, describes the current methods for testing, and provides an example of how testing takes place in practice. Part III argues that current sex testing practices jeopardize the IOC’s goals of fairness, replicability, and harmonization because it relies on single, uncomprehensive factors to determine an athlete’s categorization.

I. Approaching and Understanding Sex

There are a number of recognized approaches to determine an individual’s sex, including culturally assigned sex, anatomical/reproductive sex, genetic/chromosomal sex, hormonal sex, and personal sexual identity.^[viii]

A. Cultural

Sex is a culturally constructed paradigm that reflects the binary categories of male or female and man or woman. Historically, sex was viewed as a this-or-that categorization, with a clear-cut division between the sexes.^[ix] Despite emerging understandings that biological sex varies on a spectrum, societies continue to embrace the binary system of sex, making it a product of culture rather than science.^[x]

Governments have a large impact on how sex is culturally and societally defined, beginning with the requirement of including sex on birth certificates.^[xi] For individuals, a legal categorization of male or female can define capabilities and opportunities, with concrete ramifications on choices made based on the category in which the individual is placed.^[xii] For example, to qualify for some scholarships or be admitted to some schools, an individual must be categorized as male or female. Despite how the individual identifies, a legal categorization may limit the individual’s ability to apply for those scholarships or schools.

In addition, governments and laws rely on politics and slow-moving legislative action, where “legal definitions can become outdated or unreasonable, resulting in serious difficulties for those affected by the legal determination.”^[xiii] This can be especially problematic for individuals when a legal definition or determination does not correspond with those individuals’ sexual identities or choices.^[xiv] An example would be debates regarding the use of bathrooms by transgender individuals. In 2016, House Bill 2 was passed in North Carolina, requiring individuals to use the bathroom corresponding to the sex listed on their birth certificates, regardless of the individuals’ sexual identity.^[xv] That bill was repealed because of its economic effects and an Obama administration’s directive requiring public schools to allow students to choose bathrooms based on gender identity. However, officials in other states, such as Texas, are defying the directive and considering similar bills.^[xvi]

Cases such as these, and the availability of only two legal options (male or female) in many countries, suggest to citizens that they must fit into one of the categories despite physical, emotional, or psychological disagreement with either or both of the options.^[xvii]

B. Anatomical

Men and women are most commonly defined by their apparent anatomy.^[xviii] However, using anatomy as a main factor to determine sex can be problematic. Some individuals are born with apparent anatomy of both sexes, referred to as hermaphrodites or androgynous individuals.^[xix] When an infant’s apparent anatomy is ambiguous, sex can be assigned based on “sex-role stereotypes,” and surgical modifications can be undertaken to align them with either the male or female category.^[xx] Since the decision to surgically assign sex is made at such a young age, the decided sex can conflict with the individual’s subsequent gender association, causing distress and confusion later in life.^[xxi]

Elective surgical sex changes are gaining recognition in some United States jurisdictions (and other countries) as a legitimate transfer from one biological sex to another,^[xxii] but the unavailability of these procedures in other localities creates disparities for individuals for whom these procedures are unavailable. Using anatomy as a baseline must also take into consideration necessary or preemptive procedures, such as mastectomies, hysterectomies, or gonadectomies, that may alter a person’s apparent sexual anatomy and create ambiguous sex identification based purely on anatomy.

C. Chromosomal

Traditionally, women and men have also been differentiated by chromosomal pairings; XX equals female and XY equals male.^[xxiii] However, there are other “commonly occurring sets of gender chromosomes,” such as XXY (Klinefelter Syndrome), XXX, YYY, XYY, and XO (Turner Syndrome).^[xxiv] Some individuals are born with four or five sex chromosomes, and some individuals have cells with XX and XY chromosome pairs.^[xxv] The common use of XX to denote a female and XY to denote a male, therefore, is not a complete and accurate representation of sex.^[xxvi] Because of these anomalous chromosome pairings, and because chromosomal testing is expensive and rare,^[xxvii] reliance on chromosomal factors to determine sex risks miscategorizing or overlooking intersex individuals.^[xxviii]

D. Chemical

Another factor to determine sex is the level of naturally-occurring hormones; namely, testosterone and estrogen.^[xxix] However, the presence and level of such chemicals are not dispositive of the sex categorization because “the varying degree of hormonal presence between people suggest varying degrees of gender,” a realization that defies the binary sex framework.^[xxx]  For example, whereas the average testosterone range for a nonathletic women is very narrow (1.463-1.724 nmol/l),^[xxxi] some studies suggest that a ‘normal’ range for elite female athletes is much larger (.4-7.7 nmol/l), a range that would significantly overlap with the ‘normal’ range for men.^[xxxii] The variance in ranges and the overlap of ‘normal’ levels for males and females suggest hormones are a variable factor that should not alone be used to determine sex.^[xxxiii]

E. Identity

Sexual identity is a personal and complex concept “produced through relational, contextually influenced, interpretative processes.”^[xxxiv] The legal and government framework in which an individual lives and interacts can largely impact that person’s understanding of his or her self-identification.^[xxxv] Based on dynamic cultural understandings of sex, the binary system does not represent the reality of individuals’ sexual identities.^[xxxvi] Instead, because of the binary paradigm used by most societies, a sexual identity incongruent with accepted categorizations can lead to uncomfortable or disruptive experiences that impact individuals’ interactions and lifestyle choices.^[xxxvii] This could cause individuals to be placed in an “other” category.^[xxxviii] For example, transgender individuals may be “excluded, discouraged, or simply made to feel uncomfortable participating in [activities] for their natal sex, which are inconsistent with their gender identity and gender expression,” resulting in some activities that feel “effectively off limits.”^[xxxix] These activities include sports and athletics.^[xl]

II. The Single-Factor Sex Determination in International Sports

A. Historical and current “Sex Verification”

1. History of sex verification

Sex verification^[xli] tests for international sport competitions began in the 1960’s out of concern that males may pose as females to gain a competitive advantage.^[xlii] From its inception, sex verification tests received heavy criticism from geneticists, endocrinologists, and other medical experts, who stressed that sex verification tests “fail to exclude all potential imposters [], are discriminatory against women with disorders of sexual development, and may have shattering consequences for athletes who “fail” a test.”^[xliii] Despite these criticisms, sex verification has lasted for decades.

In the early 1990’s, the International Association of Athletics Federation (IAAF) sponsored symposia and workgroups to discuss the issue, leading to the conclusions that: “1) Individuals with sex-related genetic abnormality raised as females have no unfair physical advantage and should not be excluded or stigmatized …; 2) Gender screening based on finding Y chromosomal material should be abandoned; and 3) Only masquerading males (individuals reared and living as men) should be excluded.”^[xliv] These conclusions led the IAAF to discontinue laboratory-based sex testing.^[xlv]

At the 1992 Winter Olympics, the IOC replaced the X chromatin analysis with a “technically preferable” method of sex-determining region Y (SRY),^[xlvi] which identifies a gene found on the Y chromosome that controls the genetic development of individuals into males.^[xlvii]  At those games, only eight of 3,387 female athletes were found “SRY positive,” indicating they were genetically “male,” but all were eventually cleared for competition.^[xlviii] After discontinuing laboratory-based sex verification testing in the early 1990’s, the IAAF retained the option to test athletes if suspicions arose, but did not perform testing for over a decade.^[xlix]

2. Current sex testing

In 2009, the IAAF tested the sex of a dominant South African sprinter, Caster Semenya, based on complaints that she did not appear feminine enough.^[l] After winning the women’s 800 meter as a junior champion in 2008, Caster was temporarily barred from competing and underwent intrusive physical, biological, and chemical sex-testing^,[li] which found higher-than-normal testosterone.^[lii] Though Caster competed as a woman and did well at the 2011 World Championships and the 2012 Olympics, her story instigated a review of the purpose and role of sex-testing.^[liii]

The IOC gathered a working group to assess the best way to evaluate cases of hyperandrogenism.^[liv] The findings led to the “IOC Regulations on Female Hyperandrogenism,” which set standards for the 2012 Olympic Games by limiting who could request testing for an athlete, the process of testing, and the methods for appealing a decision.^[lv] The regulations were “designed to identify circumstances in which a particular athlete will not be eligible (by reason of hormonal characteristics) to participate in the 2012 OG Competitions in the female category.”^[lvi] The testing under these regulations focused on the presence of testosterone and was largely criticized by athletes, human rights groups, and medical professionals. Professor Peter Sonksen, who did research for the IOC’s anti-doping campaign, called the hyperandrogenism rules “unfair, gross and unscientific … [i]t is clear discrimination.”^[lvii] He and other medical professionals argued that the regulations were arbitrary and did not account for the overlap of testosterone levels between elite male and female athletes.^[lviii]

The IAAF produced similar hyperandrogenism regulations in 2011.^[lix] In its summary, the IAAF stated that:

A female with hyperandrogenism who is recognized as a female in law shall be eligible to compete in women’s competition in athletics provided that she has androgen levels below the male range … or, if she has androgen levels within the male range she also has an androgen resistance which means that she derives no competitive advantage from such levels.^[lx]

These regulations came under scrutiny in 2015, when an Indian athlete, Ms. Dutee Chand, challenged their fairness after her exclusion from competition based on the results of testing.^[lxi] From the challenge, the Court of Arbitration for Sport (CAS) determined that the regulations were neither necessary nor proportionate to ensure fairness within female competition, and suspended the regulations for two years, during which time the IAAF may produce evidence of the regulations’ adequacy and necessity.^[lxii]

B. Dutee Chand v. IAAF

Dutee was a 19 year-old athlete from India who won numerous medals at national and international junior athletics event^s.[lxiii] In June 2014, on her way to training, Dutee testified that the Director of Athletics Federation of India (AFI) requested Dutee take a “routine doping test.”^[lxiv] The AFI claimed that Dutee underwent ultrasound examinations after complaining of abdominal pains^[lxv] and, because doubts had been expressed about Dutee’s gender, the Sports Authority of India (SAI) was authorized to perform a “Gender verification test.”^[lxvi]

After being subjected to extensive medical testing,^[lxvii] Dutee was told she was prohibited from competing in the World Junior Championships, only days away, because her “male hormone” levels were above acceptable levels.^[lxviii] Dutee challenged the validity of the IAAF Regulations Governing Eligibility of Females with Hyperandrogenism to Compete in Women’s Competition (“Hyperandrogenism Regulations”), which forbid female athletes with high levels of naturally-occurring testosterone to compete.^[lxix]

The Court of Arbitration for Sport (CAS) Panel determined that the Hyperandrogenism Regulations were prima facie discriminatory because they applied only to female athletes and placed the burden on female athletes to get tested –a requirement not in place for males.^[lxx] This determination shifted the burden to the IAAF to establish that the regulations were necessary, reasonable, and proportionate to their purpose; namely, to ensure a fair playing field for athletes.^[lxxi]

Based on conflicting evidence, the Panel found that the use of testosterone levels in the regulations was sound,^[lxxii] but the Panel was unable to determine the differing effects of non-naturally and naturally-occurring testosterone on the body because the correlation of naturally-occurring testosterone to athletic performance did not prove causation.^[lxxiii] Without causation, the Panel was unsure whether “excluding [hyperandrogenous individuals] from competing in the female category, and thereby excluding them from competing at all unless they take medication of undergo treatment, is a necessary and proportionate means of preserving fairness in athletics competition and/or policing the binary male/female classification.”^[lxxiv] Therefore, for the regulations to be valid, the IAAF must prove that increased testosterone significantly impacts athletic performance and provides a substantial competitive advantage, which it was unable to do.^[lxxv]

Since the Court found that the Hyperandrogenism Regulations discriminated against women based on a natural physical characteristic, the IAAF was required to justify the Regulations as “a reasonable and necessary response to a legitimate need” to be valid.^[lxxvi] The Court acknowledged that the IAAF was in the difficult position of reconciling the binary male/female categories and the “reality that sex in humans is a continuum with no clear or singular boundary between men and women.”^[lxxvii] From the IAAF’s testimony, the Court recognized the regulations’ purpose of achieving fair competition, but the IAAF was also required to show that the testing was an effective and proportionate means of achieving that purpose^.[lxxviii]

Ultimately, the Court was unable to determine if hyperandrogenism provided a competitive advantage and, since the IAAF was unable to justify the Hyperandrogenism Regulations as necessary and proportionate to ensure fairness in competition, the Court held the regulations invalid and suspended their use for two years,^[lxxix] during which time the IAAF may submit evidence to uphold the regulations.^[lxxx] If the period lapses, the regulations will be void.^[lxxxi]

III. Fairness, Replicability, and Harmonization in terms of Sex Testing and Categorization

According to the IOC’s mission statement, one of its roles is to “encourage and support the development of sport for all.”^[lxxxii] As a result, the IOC has the task of separating the sexes using factors that present fair, replicable, and harmonizing means for determining eligibility for national and international athletic competition. From sporting organizations’ historic and current uses of sex testing, it is apparent that current approaches to sex verification are not meeting these goals.

This section argues that the historical and current factors used to understand sex, viewed individually, are not dispositive for classifying individuals to ensure fair, replicable, and harmonizing athletic competition. Instead, a full understanding of each of the factors, and how they are intertwined, is essential to understanding that “[a] binary sex paradigm does not reflect reality [because] sex and gender range across a spectrum.”^[lxxxiii]

A. The IOC’s Goals of Fair, Replicable, and Harmonizing Standards

 1. Fairness

Fairness is the primary mission of sport organizations. The IOC Mission Statement begins by stating the organization should “dedicate its efforts to ensuring that, in sport, the spirit of fair pay prevails.”^[lxxxiv] Two conceptions of fairness are sameness and deservedness.^[lxxxv] Sameness suggests that everything is equal and everyone should be treated the same, regardless of external factors.^[lxxxvi] Deservedness implies that everyone should get what they deserve, despite inherent differences amongst people and situations.^[lxxxvii]

Fairness can largely be achieved through consistency and uniformity.^[lxxxviii] Uniformity in rules and regulations ensures fairness and allows athletes to be distinguished “in terms of quality,” rather than by arbitrary factors.^[lxxxix] Two commonly agreed upon elements of sports are providing a uniform set of rules (sameness) upon which comparison of skills can be achieved to select an ultimate winner (deservedness).^[xc]

One rule to ensure fair competition that has withstood the test of time for athletic competition is categorization by sex.^[xci] The use of the male-female paradigm is often justified on safety and fairness because it “ensure[s] a fair playing field and preserve[s] opportunities for female athletes who would be squeezed out or dominated by superior male athletes if boys and girls competed together.”^[xcii] However, U.S. courts considering the constitutionality of exclusion on this reasoning have found that these rationales are based on traditional and assumed differences between males and females, rather than on scientific and social research, which suggests a large overlap in biological, anatomical, and chemical factors between the sexes.^[xciii]

2. Replicability

Replicability is a common tenet of law and sports. It serves as a means to “employ a consistent methodology across cases,” which increases predictability and transparency.^[xciv] Replicability should serve “as a coordinating device that creates a channel through which [] private actors [can] make individual and joint plans and settle disputes on the basis of law without the need for official intervention.”^[xcv] Providing replicable and transparent standards increases information sharing and allows more informed decision-making for parties. ^[xcvi]

Replicability is an essential part of sports to ensure that athletes and spectators know what and how standards must be met. For example, if weight classes for sports (e.g., wrestling or boxing) did not remain replicable, or consistent, an athlete would not know how to prepare and train or know which metric to use to measure results. The cruciality of replicability has been taken up in the context of anti-doping to create transparent and replicable standards for athletes.^[xcvii]

3. Harmonization

The importance of harmonization in law cannot be overstated. Harmonization of laws, especially internationally, can create predictability and stability, produce unified rules, reduce legal risk, and improve the quality and usability of laws.^[xcviii] International harmonization also provides recognizable standards regarding policies disparate across countries, such as legal recognition of intersex or transgender athletes. One country may allow medical procedures that alter anatomical or chemical characteristics of an athlete, while another may not; one country may allow legal channels for changing sex on legal documents, while another may not. The IOC is charged with finding ways to harmonize countries’ different approaches to understanding sex, while also maximizing opportunities for all athletes.

In sports, harmonization has justified the streamlining of anti-doping procedures and policies.^[xcix] Before the establishment of the World Anti-Doping Agency (WADA) in 1999,^[c] scholars said the success of anti-doping policies depended on “the harmonization of policies and approaches to combat doping” to ensure replicable outcomes and create recognizable and usable standards for athletes.^[ci] The same goal of harmonizing standards in drug testing could be used to ensure replicable and usable standards for sex testing, as well.

B. The Multi-Factorial Approach to Provide Fair, Replicable, and Harmonizing Standards

There are many factors to determine sex.^[cii] However, none of the factors taken individually are appropriate for classifying athletes to ensure the standards of fairness, replicability, and harmonization are met. Instead, a multi-factorial approach is necessary for sporting organizations, such as the IOC, to best categorize individuals for athletic competition.

1. Fairness

There are many assumptions about fairness in regards to sex. For example,

organizations have based regulations on the assumption that transgender or intersex athletes have an advantage when competing in a category consistent with their pronounced gender identity. ^[ciii] The presumed advantages may be due to physical traits associated with the athlete’s sex at birth or the potential effects of hormone therapy or reassignment surgery.^[civ] There are also concerns that using factors such as sexual/gender identity may create unfair results by relying on subjective decisions lacking scientific, replicable proof. ^[cv]

The use of scientifically established means of determining sex can be just as tenuous. For example, one study using endocrine profiles of 693 elite athletes concluded that the variance in hormones and “complete overlap” of testosterone in the male and female athletes studied made “[t]he IOC definition of a woman as one who has a ‘normal’ testosterone level [] untenable.”^[cvi] There are similar issues using chromosomal testing to determine sex because of variance in chromosomal patterns outside the recognized XX and XY categorizations.^[cvii]

In addition, using apparent anatomy to determine sex can lead to incongruous results for individuals born with ambiguous anatomy, those who do not identify with the anatomy they were born with or that was decided after birth, or those who had elective or preventive surgeries that modified their anatomy. For example, disqualifying from competition an individual who had a hysterectomy, but who was otherwise biologically and chemically a woman, could create uncertainty for athletes. The use of apparent anatomy can also be problematic for classifying athletes whose chromosomes are ambiguous or whose chromosomal makeup is inconsistent with external factors (e.g., anatomy) or personal or cultural understandings of sex.

2. Replicability

There are similar concerns with using single factors to create replicable standards for testing sex. Replicability requires objective proof to ensure similar outcomes are reached in similar situations, but an individual’s personal sexual identification can lack objective proof.^[cviii] Organizations, such as some women’s colleges in the United States, have begun relying on applicants’ representations of their sex, acknowledging that “there is always the risk of admitting a disingenuous application.”^[cix] In international athletic competition, where stakes may be higher, relying on individual representation of sex may not be appropriate. In terms of replicable standards, the objective, scientific factors may be more appropriate to ensure replicability across scenarios; however, each of the objective factors considered will also have inherent limitations.^[cx]

3. Harmonization

Lack of harmonization in definitions of sex may lead to inconsistencies and discrepancies that international sporting organizations must deal with to classify individuals for competition, while also respecting countries’ different cultural understandings of sex. Though the United States now allows individuals to change their sex on state-issued identification documents (with appropriate medical documentation), many countries do not.^[cxi] This may be because there is no international statutory definition of “male” and “female”; currently, neither term includes intersexed, transsexual, or transgendered individuals.^[cxii] The use of any standard for determining the sex of an athlete, whether biological, chemical, or both, should encourage harmonization for athletes, regardless of nationality.

One way the sporting community has encouraged harmonization was through the creation of WADA in 1999, which created harmonizing drug policies and testing standards for athletes.^[cxiii] The same goal of harmonizing standards could be transferred to ensure replicable, recognizable, and usable standards for sex testing, as well. By encouraging harmonization, sex testing and determinations could be essential in ensuring the goals of inclusivity and fairness are obtained, regardless of an athlete’s nationality.

Conclusion

There are many approaches to determining sex, including cultural, anatomical, biological, hormonal, chromosomal, and personal approaches.^[cxiv] Based on the complex and multifaceted nature of these approaches, scholars argue that the male/female binary understanding of sex is incomplete and inaccurate.^[cxv] The question arises: If a binary sex paradigm is not appropriate to categorize individuals with biological, chemical, or social traits that range across a spectrum,[cxvi] what factor(s) should international sporting organizations, such as the IOC, use when placing individuals into its binary paradigm?

The IOC’s past and present attempts to categorize athletes have been met with extensive controversy^[cxvii] and have faced legal challenges, such as those presented by Ms. Dutee Chand.^[cxviii] These challenges have forced the athletic community to consider using more comprehensive and flexible approaches to understanding sex and its redefinition resulting from new technologies and cultural understandings.^[cxix]

In the future, sports organizations, such as the IOC, will benefit by creating frameworks for athlete eligibility using a multifaceted and integrated approach to understanding sex and its effect on athletic competition. This may be best accomplished by using existing frameworks, such as those established by WADA, to develop and implement policies to accomplilsh the ultimate goals of fairness, replicability, and harmonization.