• SPRF Team

Exploring the Ethicality and Legality of Sex Verification Testing in Sports

Authored by: Saaransh Mishra

Edited by: Kausumi Saha


CONTEXT


Indian Sprinter Dutee Chand rose to prominence between 2012 and 2014, when she became India’s most promising prospect for an Olympic medal. After a successful run at the junior level, Chand was set to represent India on the international stage at the Glasgow Commonwealth Games in 2014. However, hours before, Chand was informed that she has been dropped from the team because a set of medical tests found that she had high levels of testosterone in her body, a situation referred to as ‘hyperandrogenism’ [1].


Similarly, 25-year-old Santhi Soundarajan’s euphoria over her podium finish with a silver medal at the 2006 Asian Games at Doha was dimmed two days later as she was summoned by the Indian sports officials for the performance of some medical tests. The news revealed later that Santhi had “failed the test”. The sports authorities had concluded that she did not possess the sexual characteristics of a woman, and thus, would be disqualified and stripped of her medal [2].


This treatment meted out to the two athletes by the Athletics Federation of India (AFI) is in congruence with a highly controversial rule of the governing body for world athletics, the International Association of Athletics Federation (IAAF). The rule states that any female athlete found to have more than 10 nanomoles per litre of naturally occurring free testosterone (about three times the typical female range) would be deemed unfit to compete in the category of females, unless they underwent surgical or other medical procedures to reduce the amount of testosterone in their bodies [3]. Both Indian athletes fell prey to a practice prevalent since the 1930s, called ‘sex verification’. This practice specifically victimises intersex athletes like Chand and Soundarajan. Intersexuality is a form of congenital mixed sex anatomy, wherein a person is born with a reproductive/sexual anatomy that does not fit the binaries of ‘male’ or ‘female’. For instance, intersex people may have genitalia or internal sex organs that fall outside the male/female category. Other intersex people have combinations of chromosomes that are different than XY and XX, like XXY [4] [5].


Sex verification as a practice gained prominence as the prestige and importance accorded to international athletics grew in the 20th century. The apprehension of ‘gender fraud’ by male athletes in pursuit of glory compelled critics to support this practice [6]. It aimed to ensure that no males took part in the female category disguised as females. In 1946, the IAAF required female athletes to submit medical certificates to ‘verify’ their sex. At the European Athletics Championship in 1966, the female competitors were subjected to the humiliating act of having to parade nude in front of three gynaecologists for the visual inspection of their genitals. In 1967, the IAAF shifted to a laboratory-based Barr Body test, typically obtained by swabbing the inside of the athletes’ cheeks. An XX result effectively established femaleness, barring which athletes could not compete in the female category [7]. Since then, there have been a variety of methods through which sex verification testing has taken place globally and has affected renowned atheletes like Polish sprinter Ewa Klobukowska in 1967, Spanish hurdler Maria José Martínez Patiño in 1985, and South African runner Caster Semenya in 2009, among others.



SCIENTIFIC CRITICISM OF SEX VERIFICATION TESTING


The practice of sex verification in sports has faced tremendous criticism, owing to the lack of scientific data that can conclusively establish the athletic superiority of female athletes with higher testosterone levels. Kathrine Karkazis, a bioethicist at Stanford University challenged the regulation as “unfair, unscientific and possibly discriminatory against women who may not adhere to traditional notions of femininity” [8]. Critics have held that individuals may have significantly varying responses to the same amounts of testosterone, which is only one element in an intricate neuroendocrine feedback system. Such a focus on a single hormone is therefore unscientific, given that several natural factors such as height or muscle mass, which vary among ethnic groups, may also give an athletic advantage. Furthermore, the rationale offered by sports federations behind sex verification, to ensure a ‘level-playing field’ for all athletes, is based on the premise that androgenic hormones have a performance-enhancing effect on strength, power and speed. However, this premise in isolation is illogical, since strenuous exercise can elevate testosterone levels even in females. Therefore, a female athlete may end up being disqualified simply because she trained harder [9].


Researchers also associate physical performance with 200 different genetic variations, more than 20 of those associated with elite athleticism. These performance-enhancing polymorphisms (PEPs) can impact height, blood flow, muscle mass, cardiac functions, speed, and endurance, to outline just a few. Yet, male athletes with these predispositions are rather celebrated than disqualified [10]. The case of Finnish skier Eero Mäntyranta is a glaring example of this. The seven-time Olympic medalist had a condition called primary familial and congenital polycythemia, associated with the EPOR gene, which caused his body to produce 65% more red-blood cells than the average male. As skiing requires immense stamina; a trait aided by “a profusion of red-blood cells which carry oxygen to the muscle”, Mäntyranta had a natural competitive advantage over his peers. However, because it was a ‘natural condition’, it was dismissed as a genetic gift [11].



ETHICAL CONSIDERATIONS


Barring the question of existing science being unreliable, the practice has also raised various ethical questions that still require adequate addressing. The ethicality and legality of sex verification are two concerns that are closely tied to each other.


Ethically, the discriminatory nature of this practice is highlighted by the fact that men are not tested for any kind of physiological, hormonal, or genetic advantages that they might have, as illustrated in the case of Eero Mäntyranta. Simply put, there is no upper physiological limit, unlike for women [12]. In fact, male athletes with low testosterone levels are actually eligible for ‘therapeutic use exemptions’ which allows them to use medically prescribed steroids to raise their androgen levels [13]. In contrast, female athletes’ bodies have an upper-limit for sporting performance; after which, they are considered ‘too masculine’ and the athletes are disqualified with no consideration to their personal gender identities. They are robbed of the agency over their bodies and forced to make changes to them through surgery or medicine, based on arbitrary and unscientific metrics. Or they are made to quit [14].


Moreover, the sensitive nature of the information revealed through the tests has the potential to inflict serious harm to athletes. It may have damning cultural significance for some. Questioning of femininity, as has been the case with this practice, can also seriously endanger one’s mental health. Inability to continue with sports, sex or gender identity crises, feelings of shame, depression, and suicide attempts are not uncommon [15]. This happened to Santhi Soundarajan, who, after suffering from severe depression, attempted suicide in 2007.



THE QUESTION OF LEGALITY


The lack of ethicality necessitates the formulation of policies that would eliminate this prejudicial practice altogether. However, there has been an astonishing invisibilisation of the LGBTQIA+ community within the sporting narrative and policies in India. For example, the Haryana and West Bengal sports policies only delineate ‘men’ and ‘women’. The draft Kerala Sports Policy promises to practice inclusivity and accessibility, yet fails to even mention gender. Perhaps only the Karnataka sports policy can set an essential example for the rest of India as it uses conscious language to replace the normalised “both genders” with “diverse genders” [16]. Yet, this is merely the beginning in a battle that is far from over.


In addition to the lack of inclusivity, the threat of sex verification testing still looms large within India. When Caster Semenya lost the case against the IAAF on testosterone regulations in 2019, Athletics South Africa (the governing body of track and field in South Africa) resolved to stand behind her and further appeal against the Court of Arbitration for Sport’s (CAS) ruling [17]. They took this stand despite their affiliation with the IAAF. In contrast, Indian sports officials deceitfully collected samples for sex verification from Chand and Soundarajan, flouting norms of consent, without having to be accountable. The practice was also in contravention of Article 15 of the Indian constitution that prohibits discrimination against any citizen based on sex, among other things.


On the policy front, there is still no standardised policy that prohibits this practice in India. The Personal Data Protection Bill, 2019, which is yet to become a law lays down regulations ensuring ‘consent’ and ‘confidentiality’ of sensitive personal data (pertaining to genetic data, sexual life, sexual orientation among other things) [18]. However, this law will not question the severely unethical or unscientific nature of this practice. There is no policy or law in India that does.



CONCLUDING REMARKS


The practice of sex testing has its basis in the problematic ideals of a standardised femininity, with cisgendered Western female bodies as the norm. Scientists and social scientists have long since moved past these ideals, and the presence of a sexual binary - “male” and “female” has been unquestionably debunked. It is unreasonable, therefore, for sports policy to not reflect these realities. Efforts to rewrite a more inclusive narrative of sports must be undertaken. Meticulous formulation of policies must also take place to promote equality in opportunity and ban unscientific and unethical practices like sex verification testing that are detrimental to the already abysmal status of women and non-binary people in sports.



ENDNOTES


[1] https://www.hindustantimes.com/other-sports/being-woman-enough-how-two-indian-athletes-fought-against-gender-testing-and-won/story-6MA2eONScuu93fyHX8zddL.html


[2] https://caravanmagazine.in/periscope/santhi-soundarajan-and-flawed-science-sex.


[3] https://www.hindustantimes.com/other-sports/being-woman-enough-how-two-indian-athletes-fought-against-gender-testing-and-won/story-6MA2eONScuu93fyHX8zddL.html


[4] https://www.himalmag.com/a-flaming-hope/


[5] https://www.plannedparenthood.org/learn/gender-identity/sex-gender-identity/whats-intersex.


[6] https://newrepublic.com/article/136083/its-time-stop-gender-testing-athletes


[7] Ibid.


[8] https://www.himalmag.com/a-flaming-hope/


[9] Ibid.


[10] https://newrepublic.com/article/136083/its-time-stop-gender-testing-athletes


[11] Ibid.


[12] https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3007680/


[13] https://newrepublic.com/article/136083/its-time-stop-gender-testing-athletes


[14] https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3007680/

[15] https://www.jstor.org/stable/23034791?Search=yes&resultItemClick=true&searchText=is&searchText=there&searchText=a&searchText=right&searchText=not&searchText=to&searchText=know&searchText=one%27s&searchText=sex&searchUri=%2Faction%2FdoBasicSearch%3FQuery%3Dis%2Bthere%2Ba%2Bright%2Bnot%2Bto%2Bknow%2Bone%2527s%2Bsex&ab_segments=0%2Fbasic_search%2Fcontrol&refreqid=search%3A31af9dadf67a272743f7bda64788bc88&seq=1#metadata_info_tab_contents


[16] https://thewire.in/sport/india-sports-lgbtqia-representation.

[17] https://www.theguardian.com/sport/2019/may/14/athletics-south-africa-to-appeal-against-caster-semenya-ruling.


[18] https://www.sprf.in/post/the-personal-data-protection-bill-2019-an-overview.


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