Regarding Rights

Academic and activist perspectives on human rights

Rights, Regulation and Bodily Integrity: Reflections from Sport

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By Kate Henne, RegNet, ANU

Dutee Chand was banned from competition in 2014 (Photo: Manjunath Kiran/AFP/Getty Images)

Dutee Chand was banned from competition in 2014 (Photo: Manjunath Kiran/AFP/Getty Images)

Sport is a space in which the policing and scrutiny of athletes’ bodies is explicit. Regular commentaries about athletes’ physical performances, suspected performance-enhancing drug use and changes to their bodies’ shape or size offer everyday examples. Accordingly, sport is a site that enables us to think through the tensions between rights, regulation and bodily integrity. Recent developments around the regulation of who can participate in women’s sports events offer a timely and important case in point.

After being banned from competition in 2014, Indian sprinter Dutee Chand filed an appeal with the Court of Arbitration in Sport (CAS) to challenge the International Association of Athletics Federations’ (IAAF) Hyperandrogenism Regulations. These particular rules came into effect in 2012 following the controversy and suspension of South African 800-meter World Champion Caster Semenya in 2009. They limited the level of naturally occurring androgenic hormones that elite women athletes can have under the rationale that women with high levels of testosterone have an unfair advantage over female athletes with lower levels. In other words, the Hyperandrogenism Regulations divided female athletes into two categories – one eligible and one ineligible – on the basis of natural biological traits. Testing, however, was often selective, only affecting those suspected of having high levels of testosterone. Thus, science alone did not determine who fell into which category; rather, subjective assessments influenced who was deemed suspicious.

Specifically, the Hyperandrogenism Regulations until recently required women with levels above the designated threshold of 10 nanomoles per litre to demonstrate that they were androgen-resistant – and thus could not recruit the benefits of high levels of testosterone; or else undertake corrective treatment to lower their levels. This was despite stated reservations about using testosterone as the distinguishing measure of athletic performance and research indicating significant overlap between male and female elite athletes’ levels of testosterone, with one study revealing 16.5 per cent of men below the threshold and 13.7 per cent of women above the threshold.

Despite these criticisms, women athletes found to be above the threshold could be required to take hormone-suppressing drugs and sometimes to have genital surgery to limit testosterone production. A 2013 study indicates that following the introduction of the Regulations, at least four women, ages 18-21 and all reportedly from developing countries, underwent medically unnecessary surgeries in order to continue competing. Some procedures, according the study’s authors, did not even aim to reduce testosterone levels; they included oestrogen replacement therapy, clitoris reductions and feminising plastic surgery.

Following her ban, Chand refused to be subject to forms of ‘corrective’ therapy. On 27 July, the CAS panel suspended the Hyperandrogenism Regulations, giving the IAAF two years to provide new evidence outlining the degree to which hyperandrogenic women enjoy a competitive advantage. It also specified that if the IAAF fails to do so, the Regulations are void.

This decision marks a new chapter in a long history of gender verification rules with the stated aim of ensuring a level playing field in women’s sport. I have written about and discussed the gendered premises of this form of regulation, including the particularly influential role of the International Olympic Committee (IOC) in developing scientific tests to determine women’s sex. Others, such as Lindsay Parks Pieper, have provided detailed historical accounts of how gender verification has been implemented in women’s sports. Taken together, these analyses reveal that bodies that do not appear to fit first-world feminine ideals often emerge as suspect, cast as not ‘real’ women. In the past, women from Eastern Bloc countries occupied this space in Western imaginations. Today, the targets of regulation tend to be women of Colour from non-Western countries.

In my book, Testing for Athlete Citizenship: Regulating Doping and Sex in Sport, I examine how anti-doping practices also assist in policing sex and gender. For example, drug-testing protocols require athletes to submit to a different kind of bodily scrutiny during the collection process: officials observe athletes while they are urinating to ensure that they do not alter samples. Again, the underlying rationale is said to be the protection of sport’s integrity; but precisely because this regulation is not explicitly earmarked as gender verification, it enables officials to visually observe athletes’ genitals even if they are not considered suspect. This kind of scrutiny was allegedly used to substantiate the need to conduct the tests that led to the 2006 disqualification of Santhi Soundarajan, an Indian middle-distance runner. Anti-doping regulation also circumscribes gender at the hormonal level. The regulations state that if ratios between testosterone and epitestosterone fall outside the ‘normal’ range (currently 4:1, lowered from 6:1), athletes will be under suspicion of doping.

Although gender verification and anti-doping regulations rely heavily upon scientific testing, their shared history highlights a pattern in which subjective evaluations are important. Presumptions about ‘good’ and ‘bad’ athletic performances often rely on what is deemed to be unnatural in the gaze of overseeing authorities, reflecting the cultural conditions that colour their perceptions of the world. In my book, I detail how the treatment of athletes characterised as blurring the divide between women and men bring to light the very real consequences of how femininity and female physical ability are imaginatively constructed. The IOC introduced scientific testing in the 1960s so that women athletes would no longer be subjected to gynaecological examinations – referred to colloquially as ‘naked parades’. The subsequent failures of scientific testing to accurately catch the intended targets of gender-verification testing is well documented by sport historians. Instead, testing indicated that many so-called ‘normal’ women didn’t qualify as women. In sum, the technical tools actually prove that a static articulation of binary sex is unfounded. There are no rigid gendered boundaries.

Despite the current suspension of the Hyperandrogenism Regulations, the CAS panel accepts two points that the IAAF claims are foundational for the regulations. First, ‘that there is a scientific basis in the use of testosterone as a marker for the purposes of the … Regulations’, and second, that endogenous testosterone is ‘the best indicator of performance differences between male and female athletes.’ The IAAF emphasises that the CAS decision reflects acceptance that hyperandrogenic women ‘may have a competitive advantage over athletes with testosterone levels in the normal female range.’ Such statements suggest that authorities have not yet abandoned deeply held gendered beliefs about what kind of women should be eligible to participate in elite sport.

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