The 2018 regulations, published in April, target women athletes with some intersex variations sometimes called «differences of sex development» that cause higher than typical natural testosterone levels. The regulations deny these women the right to participate in the female category for running events between 400 meters and the mile unless they submit to invasive testing and medically unnecessary «treatment». There is no clear scientific consensus that women with intersex variations who have higher than typical natural testosterone have a performance advantage in athletics.
«The IAAF Eligibility Regulations for the Female Classification discriminate against women on the basis of their sex and their sex characteristics», said Liesl Gerntholtz, women’s rights director at Human Rights Watch. «Regulations that call for scrutiny of women’s naturally occurring hormone levels are at root a form of judgment and a questioning of women’s sex and gender identity».
Intersex traits or variations are naturally occurring sex characteristics that appear in up to 1.7 percent of the population, but do not fit social norms of what is considered «male» or «female». The vast majority of people born with intersex variations are healthy and do not need to undergo medical treatment unless they wish to alter their bodies.
The regulations, the Eligibility Regulations for the Female Classification (Athlete with Differences of Sexual Development), require women who have a naturally occurring blood testosterone level higher than five nmol/L to have medically unnecessary hormone therapy to reduce their testosterone levels if they want to qualify to compete in the female category. If women refuse to be tested or have hormone therapy, the regulations state that they may only compete in the male category or in a hypothetical, not-yet-created intersex category – both of which would expose women’s private sex characteristics to the global public.
The United Nations special rapporteur on the right to health, Dainius Pūras, has expressed concern that «international and national sporting federations have…introduced policies banning women with testosterone levels exceeding a certain threshold from participating in competitive sport». He noted that «there is insufficient clinical evidence to establish that those women have a ‘substantial performance advantage’ warranting exclusion».
The practice of nonconsensual «normalizing» procedures conducted on and promoted for people with intersex variations, such as to reduce the size of the clitoris, change the size and shape of the vagina, and remove gonads – which alters naturally occurring hormone levels – has been debunked as unscientific, unethical, and a violation of international human rights law. The discriminatory treatment of female athletes with intersex traits in sporting events similarly runs afoul of fundamental rights protections, Human Rights Watch said.
«Women with intersex variations have the same rights to dignity and bodily integrity as all women», Gerntholtz said. «But the new IAAF regulations coerce some women to undergo unnecessary medical intervention to alter their hormone levels simply because their naturally occurring testosterone is atypical».
In 2011, the IAAF issued regulations that were very similar to the 2018 regulations. The Indian runner Dutee Chand challenged the regulations at the Court of Arbitration in Sport (CAS), leading to a 2014 judgment that the 2011 regulations did «discriminate against women and discriminate based on a natural physical trait». The court rightly noted that, «Such discrimination is, unless justified, contrary to the Olympic Charter, the IAAF Constitution and the laws of Monaco» and stated that «if the [testosterone] Regulations cannot be justified, specifically as a reasonable and necessary response to a legitimate need, then they should be declared invalid».
In issuing new guidelines in response to the judgment, the IAAF included an explanatory note saying that «persecution or campaigns against athletes simply on the basis that their experience does not conform to gender stereotypes are unacceptable» and that the regulations are not «intended as any kind of judgement on or questioning of the sex or the gender identity of any athlete».
But for women athletes with atypical testosterone levels, undergoing medical examinations can be as humiliating as it is medically unnecessary, Human Rights Watch said.
Following an examination of her eligibility based on a suspected intersex variation, the South African sprinter Caster Semenya stated: «I have been subjected to unwarranted and invasive scrutiny of the most intimate and private details of my being».
The 2011 IAAF regulations relied on deeply problematic stereotypes such as having a «deep voice» to identify athletes with intersex variations, and the 2018 regulations make no mention of criteria for identifying these athletes – leaving the system open for abuse.
«Stigmatising, stereotyping, and discriminating are intrinsic to the implementation of these regulations», Gerntholtz said. «Identifying relevant athletes through observation and suspicion creates a situation in which women athletes’ bodies are scrutinised, while no such scrutiny is applied to men».