Dianna Kenny PhD
In 2009, South African athlete Caster Semenya won, by a margin of 20 metres from her nearest rival, the women’s 800m event at the athletics world championships. Her victory was short-lived.
Allegations arose that Semenya was “really a man.” The 18-year-old from an impoverished village on the Limpopo River in South Africa became the unwitting subject of an international media outcry that included the release of her private medical details without her consent.
In the past decade, sporting authorities have subjected Semenya to repeated physical and psychological assessments, suspended her from competing, allowed her to return to competition, introduced new rules that tried to regulate her inconvenient physiology and battled to uphold those rules in court.
Semenya continued to excel in the 800m event, when she was permitted to compete, and won another world championships in 2017 as well as gold at the 2012 and 2016 Olympic Games. The existence of athletes like Semenya, whose biological make-up is ambiguous creates complex medical and ethical dilemmas for sporting authorities. In addition, and of relevance to this paper, are the contradictory stances taken by regulatory bodies regarding the ingestion of testosterone and other sex hormones, a practice now widely applied to gender dysphoric children and adolescents.
In April 2018 the IAAF (International Association of Athletics Federation) introduced new eligibility regulations for female classification of athletes with Differences (Disorders) of Sexual Development (DSD), including hyperandrogenism, defined as those with levels of circulating testosterone of five (5) nmol/L or above and who are androgen-sensitive, for events including the 400m to one-mile races and combined events over the same distances (‘Restricted Events’).
The regulations require such athletes to meet three criteria to be eligible to compete in Restricted Events in an International Competition. They must:
(a) be recognised at law either as female or as intersex (or equivalent);
(b) reduce their blood testosterone level to below five (5) nmol/L for a continuous period of at least six months (e.g., by use of hormonal contraceptives); and
(c) maintain their blood testosterone level below five (5) nmol/L continuously (i.e., whether they are in or out of competition) for as long as they wish to remain eligible to compete.
IAAF President Sebastian Coe said the regulations were necessary to
…ensure a level playing field…testosterone, either naturally produced or artificially inserted into the body, provides significant performance advantages in female athletes. The revised rules are not about cheating, no athlete with a DSD has cheated, they are about levelling the playing field to ensure fair and meaningful competition in the sport of athletics where success is determined by talent, dedication and hard work rather than other contributing factors.”
Most females, including elite female athletes, have low levels of testosterone circulating naturally in their bodies (0.12 to 1.79 nmol/L in blood); after puberty the normal male range is 7.7 – 29.4 nmol/L. No female would have serum levels of natural testosterone at 5 nmol/L or above unless they have DSD or a tumour. Individuals with DSDs can have very high levels of natural testosterone, extending into and even beyond the normal male range.
High levels of endogenous testosterone circulating in athletes with certain DSDs can significantly enhance their sporting performance. These Regulations accordingly permit such athletes to compete in the female classification in the events that currently appear to be most clearly affected only if they meet the Eligibility Conditions defined by these regulations.
About seven per 1000 elite female athletes have elevated testosterone levels, the majority of whom compete in restricted events. This rate is 140 times higher than rates in the general female population. Treatment is equivalent to taking the contraceptive pill.
Female athletes who do not wish to lower their testosterone levels will still be eligible to compete in:
(a) the female classification:
(i) at competitions that are not international competitions: in all track events, field events, and combined events, including the restricted events; and
(ii) at international competitions: in all track events, field events, and combined events, other than the restricted events; or
(b) in the male classification, at all competitions (whether international competitions or otherwise), in all track events, field events, and combined events, including the restricted events; or
(c) in any applicable intersex or similar classification that may be offered, at all competitions (whether international competitions or otherwise), in all track events, field events, and combined events, including the restricted events.
The regulations, it is claimed, exist to ensure fair and meaningful competition within the female classification, for the benefit of all female athletes. As an afterthought, the IAAF stated that they do not question the sex or gender identity of any athlete.
Doping, historically considered the greatest challenge to the integrity of sporting competitions, was defined in 1999 by the Lausanne Declaration on Doping in Sport as “the use of an artifice, whether substance or method, potentially dangerous to athletes’ health and/or capable of enhancing their performances, or the presence in the athlete’s body of a substance, or the ascertainment of the use of a [prohibited] method.”
Since the introduction of females into elite sport competitions in 1900, two other threats to the integrity of sport have arisen: sex fraud and transsexualism in sport. Ironically, the discovery that some male athletes “masqueraded” as women during the 1936 Olympics resulted in the IAAF taking the extreme measure of requiring all female participants in the 1966 European championships to parade naked in front of a panel of doctors to prove their “femininity”. In 1968, the IOC (International Olympics Committee) required proof of gender before female athletes could participate in the Mexican Olympics.
Gender testing ceased at the Sydney Olympics in 2000. A number of reasons were cited, including the fallibility of screening tests, uncertainty about how to manage intersex athletes and those born with rare genetic abnormalities such adrenal hyperplasia, 5-alpha-steroid–reductase deficiency, partial or complete androgen insensitivity, chromosomal mosaicism, the stigmatization and trauma of those who find out they have a DSD through testing, and the inability to prove that such athletes do in fact have a competitive advantage.
Now let us return to Caster Semenya. Between 2011 and 2015, Caster took hormone suppressants to reduce her testosterone levels. During this period, her times for the 800 metres slowed by between one and two seconds but she still managed to win gold in the 2012 Olympic games. Nonetheless, her legal team argued, based on expert opinion, that were Semenya to permanently reduce her testosterone levels, she would run the 800 metres seven seconds slower than her current event-winning times which would place outside contention for a medal or world record.
In February 2019, Caster took the IAAF to the Court of Arbitration in Sport (CAS) on the grounds of discrimination, requesting that the DSD Regulations, which apply only to female athletes who are legally female, have 46XY, DSD, and testes, who are androgen-sensitive and have circulating testosterone above 5nmol/litre be declared invalid and void. (Note: The regulations do not apply to female athletes with 46XX chromosomes, even if they have elevated testosterone levels). The CAS ruled that the DSD Regulations
…were discriminatory but…such discrimination …was a necessary, reasonable and proportionate means of achieving the IAAF’s aim of preserving the integrity of female athletics in the Restricted Events.
The CAS further upheld the requirement of the IAAF that female athletes with excess testosterone must lower their levels in order to compete. Semenya’s legal team countered that the IAAF’s requirement for athletes with DSDs to take hormone suppressants to reduce testosterone is ethically wrong and potentially poses a health risk. Why, then, is it not ethically wrong and potentially dangerous to reduce testosterone in gender dysphoric male adolescents?
Julian Savulescu, Professor in Biomedical Ethics, outlined 10 ethical flaws in the decision regarding Caster Semenya arguing that although Caster is intersex, she is a female by virtue of her gender identification. Since medical, social and legal opinion now supports the replacement of sex determination with gender self-identification for the community at large, with such opinions being progressively enshrined in legislation, why does this standard not apply to intersex athletes or athletes who do not otherwise meet biological determinants of femaleness?
The United Nations Human Rights Council argued that the IAAF ruling contravenes human rights. The World Medical Association (WMA) also condemned the IAAF rules arguing that it is unethical for physicians to prescribe treatment for excessive endogenous testosterone if the condition is not pathological. The WMA also questioned the scientific validity of the approach, saying it was based on weak evidence from a single study.
The WMA calls on physicians to oppose and refuse to perform any test or administer any treatment or medicine …which might be harmful to the athlete using it, especially to artificially modifying blood constituents, biochemistry or endogenous testosterone.
This is an interesting position given that the WMA does not condemn the prescription of testosterone to girls asserting that they are boys or to reducing testosterone in boys asserting that they are girls. Nor do they baulk at the removal of healthy breasts or reproductive organs of otherwise healthy young women or the amputation of penises in healthy young men. The WMA released a set of nine recommendations in 2015 that explicitly condone all available treatments for sex reassignment, including cross-sex hormones and sex reassignment surgery for people requesting them, with the sole proviso that they give informed consent, without defining how informed consent is ascertained, particularly in young people. The Family Court of Australia has opted out of its gatekeeper role regarding mutilating surgery when there is agreement between parents and treating doctors. In addition, there is currently a drive to reduce the age of consent and to restrict the role of parental consent for such procedures.
There are more safety barriers in place for children and young people undergoing a tonsillectomy compared with a double mastectomy of healthy breasts. In general, Australian law regards the parents of children under 18 years of age responsible for consent to medical procedures. In cases where children are approaching 18 years, they are permitted to give their own consent if the doctor believes that they
“…fully understand the medical advice being given, the nature, consequences and implications of the proposed treatment, the potential risks to health, the emotional impact of either accepting or rejecting the advised treatment, and the moral and family questions involved.”
Clinical work with gender dysphoric adolescents suggests that this threshold for capacity is rarely reached. I have found that such young people are cavalier about the long-term consequences of gender reassignment treatment, including infertility, sexual dysfunction, and heightened health risks. I have had 14-year-olds telling me that they never wanted to have children so they do not care about loss of fertility and rarely take up the option of fertility preservation. Since almost none of those in my caseload have ever experienced genital sex, they are similarly cavalier about their indifference to loss of sexual function. Further, transitioning adolescents reported that the lack of data on the long-term effects of puberty suppression lack of data on the long-term effects of puberty suppression does not deter them from proceeding along the transition pathway. These factors lead to serious concerns about the capacity for informed consent in this group of young people.
Sport participation has become one of the few remaining arenas in which the reality of biological sex forms the basis for logical argument, policy and practice. Even respected scientific journals like Scientific American are claiming that “[b]iologists now think there is a larger spectrum than just binary female and male.” Similarly, the Journal Nature recently criticised a proposal to return to the practice of classifying people on the basis of anatomy or genetics. These claims are based on rare disorders of sexual development in which both male and female chromosomes and/or male and female sex organs are present in one person. These conditions have been fallaciously used to argue the case for a “gender spectrum” while simultaneously relying on binary concepts of male and female to do so. The Intersex Society of North America explicitly reject such arguments, stating that
“…the vast majority of people with intersex conditions identify as male or female… Thus, where all people who identify as transgender or transsexual experience problems with their gender identity, only a small portion of intersex people experience these problems.”
Nonetheless, the American Academy of Pediatrics advise physicians to treat children according to their preferred gender, regardless of (sexual) appearance or genetics. In counter-argument, the Project Nettie declares that
Attempts to recast biological sex as a social construct, which then becomes a matter of chosen individual identity, are wholly ideological, scientifically inaccurate and socially irresponsible.
There are grave and fatally flawed ontological and epistemological flaws in the foundational arguments for a gender spectrum and the fluidity of gender that have not been seriously addressed by the transgender lobby. Transgender ontology has created transgender medicine, which has been recalcitrant in failing to grapple with the attempted elimination of biological sex from transgender ideology. We are left with the view that the appropriate determinant of sex is gender identity, thus rendering chromosomes, DNA, sex hormones, secondary sexual characteristics and dimorphous sexual organs without a place in the ontology and epistemology of human sexuality.