Source: The Conversation (Au and NZ) – By Brenda Midson, Editor, New Zealand Law Journal; Senior Lecturer in Law, University of Waikato
The Court of Arbitration for Sport is due to rule on an application by the International Association of Athletics Federations (IAAF) that athletes such as South Africa’s Caster Semenya, who have “differences of sexual development”, must medicate to reduce their testosterone levels for six months before competing internationally.
The IAAF claims that the proposed rules will “create a level playing field to ensure all female athletes have an equal chance to excel”. Semenya has filed an appeal against the IAAF.
Those who argue that women with differences of sexual development and transgender should not be allowed to compete in women’s sports usually claim that their testosterone levels and different muscle-to-fat ratios give them an unfair advantage over their competitors. But excluding these women from competition is unfair and potentially a human rights violation.
A breach of human rightsThose with differences of sexual development include women who are born with genetic conditions that give them athletic advantages more commonly attributed to males. Hyperandrogenism, for example, causes the individual to produce more testosterone than is typically present in women.
Semenya and India’s Dutee Chand are both thought to have this condition and have been subjected to intense public scrutiny as a result.
There is also the issue of transgendered women athletes who want to compete against other women. Transgender New Zealand weightlifter, Laurel Hubbard, competed in the 2018 Commonwealth games, amid complaints from the Australian Weightlifting Federation. Another New Zealander, Kate Weatherly, a transgender downhill mountain bike rider, has faced the same kind of scrutiny and challenges to her right to compete against other women.
There is disagreement among experts about whether transgender women do in fact have a physical advantage. Some evidence suggests the opposite is true and the therapy required to transition to a woman results in lower levels of testosterone than are found in women generally.
Laurel Hubbard has been subjected to monthly testosterone tests and her testosterone levels are lower than a “normal” female. Part of the problem here, too, is the assumptions about the characteristics of “normal”.
The level playing field is a myth
These issues aside, what precisely is an unfair advantage? Those who believe transgender women and women with different sexual development should be able to compete in women’s categories point to athletes such as Michael Phelps who has extraordinary physical characteristics that give him a huge competitive advantage in swimming, including his long arms and flexible feet. What makes his advantage fair? Is it because these are qualities Phelps was born with?
If so, then Semenya and Dutee and others who are born intersex or with hyperandrogenism should not cause sporting organisations any problems. But what about transgender athletes? Does the fact they have “chosen” to become women mean they have brought about this state of affairs and so they can justifiably be excluded? And if so, what of all the competitive advantages other women bring with them?
The level playing field is a myth. Aside from these genetic or biological advantages, athletes all differ in terms of the resources they have available to buy the best equipment, trainers and coaches and so on. Should these factors be considered as giving athletes an “unfair” advantage?
In New Zealand, under section 28 of the Births, Deaths, Marriages and Relationships Act 1995, a person may apply to the Family Court to have their birth certificate record they are of the opposite sex to that already recorded on the document. There are certain conditions that must be satisfied, and the application must be supported by “expert medical evidence”.
But a new bill proposes to replace the existing process with one based on self-identification, to “allow people to have greater autonomy over their identity”. The Select Committee also recommended including the options of “inter-sex” and “X (unspecified)” to recognise non-binary sexual and gender identities.
A self-identification policy does have the potential to impinge on women’s rights as well as for abuse by males who do not actually identify as women. Both Semenya and Chand have identified as women from birth. Hubbard and Weatherly are also women, notwithstanding that they were assigned a different biological sex at birth.
They should all be treated as such for all purposes. Regardless of their biological sex – if in fact there is such an incontrovertible thing – they are not men masquerading as women to secure a competitive advantage. A nuanced approach is called for; while a self-identification policy may not be the answer, neither is an approach that requires medical intervention as a pre-requisite for recognition.
– ref. Sex and sport: how to create a level playing field – http://theconversation.com/sex-and-sport-how-to-create-a-level-playing-field-112219