IOC walks back on trans athlete rules, but gaps remain

IOC released new guidelines on Tuesday related to participation of transgender and intersex athletes, dropping its earlier stance of using the levels of natural testosterone in a sportsperson as the determining factor for their eligibility.
IOC released new guidelines on Tuesday related to participation of transgender and intersex athletes, dropping its earlier stance of using the levels of natural testosterone in a sportsperson as the determining factor for their eligibility. (Representational image)(AFP/Getty Images) PREMIUM
IOC released new guidelines on Tuesday related to participation of transgender and intersex athletes, dropping its earlier stance of using the levels of natural testosterone in a sportsperson as the determining factor for their eligibility. (Representational image)(AFP/Getty Images)
Updated on Nov 18, 2021 07:01 AM IST
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ByAvishek Roy, Hindustan Times, New Delhi

“What we’re saying now is you don’t need to use testosterone at all,” International Olympic Committee (IOC) medical director Richard Budgett said, signalling a major shift in the way the sporting body looks at gender, and whether or not certain athletes are allowed to take the field.

IOC released new guidelines on Tuesday related to participation of transgender and intersex athletes, dropping its earlier stance of using the levels of natural testosterone in a sportsperson as the determining factor for their eligibility. Instead, IOC called for evidence of a performance advantage on a case-by-case basis if an athlete’s eligibility is questioned.

The guiding principle of the new framework is “inclusion, prevention of harm, non-discrimination, fairness, no presumption of advantage and evidence-based approach”. No athlete should be excluded from competing based on an “unverified, alleged or perceived unfair competitive advantage due to their sex variations, physical appearance and/or transgender status,” IOC stressed.

The policy will override the “IOC Consensus Meeting on Sex Reassignment and Hyperandrogenism” that came out in November 2015, and set “the athlete’s total testosterone level must remain below 10nmo/L throughout the period of desired eligibility to compete in the female category.”

It also said, “Compliance with these conditions may be monitored by testing and in the event of non-compliance, the athlete’s eligibility for female competition will be suspended for 12 months.”

The six-page document follows years of consultation with medical and human rights experts and, since 2019, athletes directly affected to help draft guidelines promoting fairness and inclusion.

IOC acknowledged that the testosterone rule resulted in athletes being subjected to “medically unnecessary” procedures and “severe harm”.

At the 2020 Tokyo Olympics, New Zealand weightlifter Laurel Hubbard became the first openly transgender athlete to compete at the Olympics, while defending women’s 800 metre champion Caster Semenya of South Africa was among track athletes with intersex conditions and naturally high testosterone levels excluded from their events.

“This emphasis on prevention of harm and primacy of health and bodily autonomy are extremely important,” said Payoshni Mitra, an athletes’ rights researcher who was one of the experts consulted by IOC.

“You don’t want another athlete to suffer like Ugandan athlete Annet Negasa who was coerced to undergo surgery without informed consent or any aftercare. I work with so many such athletes and know what they go through.”

Negesa is a former middle-distance runner whose career was ended because of severe complications after she underwent a complicated surgery advised by the IAAF (now World Athletics) in an effort to limit testosterone in her body.

The devil in the detail

While many gender rights activists have welcomed IOC’s move, there’s a catch — the guidelines are meant as just that, and the governing bodies of various sports are free to apply their own rules when it comes to gender and eligibility.

“This guidance is not an absolute rule,” Budgett said. “So we can’t say that the framework in any particular sport, such as World Athletics, is actually wrong. They need to make it right for their sport and this framework gives them a process by which they can do it, thinking about inclusion and then seeing what produces disproportionate advantage.”

In effect, World Athletics can continue using testosterone limits to set eligibility as they do now, preventing athletes like Semenya from taking the field. The current rule in athletics prevents female runners competing in events from 400m to 1500m if there testosterone is not within a prescribed limit.

Semenya, a two-time Olympic champion, lost a long and bitter case against the athletics world body in 2019, when the Court of Arbitration for Sport (CAS) allowed the rule to remain, calling it “discriminatory” but also “necessary”.

She has now taken the case to the European Court of Human Rights (ECHR).

These rules apply specifically for ‘DSD’ (Differences in Sex Development) athletes. People with DSD do not develop along typical gender lines, and may display a mix of male and female characteristics in their hormones, genes, and reproductive organs.

While World Athletics says it does not question the legal sex of DSD athletes, it does believe that some of these athletes can hold an unfair edge because of extra testosterone, the hormone that regulates muscle and bone growth. The rules currently in place put the onus on female athletes to lower their testosterone levels through medication.

Troubled history

World Athletics’s history with regulations meant to make women’s events “fair” has a troubled history.

In 2015, their “Hyperandrogenism Regulations”, which also set a prescribed limit, was cancelled by the CAS on account of Indian athlete Dutee Chand, who was dropped from an international competition after a surprise blood test revealed high testosterone levels.

Chand challenged the rule, which at that time applied to all female athletes (irrespective of the distance category that they ran in), and won. The judge ruled that there was no reasonable proof that extra testosterone gave athletes an unfair advantage.This led World Athletics to suspend the rules, and come up with a new set of regulations, based on fresh studies, that restricted the testosterone limit to only 400m to 1 mile categories.

In 1988, when chromosome tests were done to monitor gender classifications, Spanish hurdler Maria Jose Martinez-Patino successfully fought a ban imposed after she was discovered to have XY chromosomes typically found in men.

She demonstrated that her condition made her insensitive to the “excess” testosterone in her blood, and chromosome testing, which had been the norm since 1967, was dropped.

“[The new IOC guidelines] also talk about ‘no presumption of advantage’. Athletes with high testosterone do not necessarily have an advantage,” said Mitra, who was part of the team fighting both Chand and Semenya’s cases. “IOC recognises the diversity within the group of women with high natural testosterone and urges not to exclude them by presuming they may have advantage.”

The guidelines also say that “athletes should never be pressurised by an international federation, sports organisation, or any other party to undergo medically unnecessary procedures or treatment to meet eligibility criteria.”

A lot is still unclear

This effectively means that the World Athletics rule now stands in direct opposition to the IOC’s guidelines.

“To the extent the IOC document diverges from our regulations, we would simply note that the Court of Arbitration for Sport Panel in 2019 found that the DSD Regulations were a necessary, reasonable, and proportionate means of achieving World Athletics’ legitimate objective of maintaining fair and meaningful competition in the female category,” World Athletics said in a statement on Wednesday. “Our DSD and Transgender regulations remain in place and the IOC makes it very clear that it is the role of individual governing bodies to determine and define eligibility within their sport.”

It is likely that in the light of the IOC guidelines, World Athletics will face fresh challenges to their regulations.

“I think international federations will have to strictly adhere to these guidelines while formulating any policy and substantial evidence will be needed to prove unfair advantage for any participating athlete,” said Delhi-based sports lawyer Parth Goswami, who advises multiple national sports federations on athletes’ rights issues.

In March 2019, the United Nations Human Rights Council also released a statement saying plans to classify female athletes by their testosterone levels “contravene international human rights” and are “unnecessary, humiliating and harmful”.

The CAS panel that upheld the rule also expressed “serious concern” as to the future practical application of the DSD regulations in its ruling, and “strongly encouraged” the athletics body to address these concerns.

What constitutes “disproportionate” advantage in a sport is also a matter of intense debate and plenty of scientific research that, over the years, have not found an answer.

“We have not found the solution to this big question,” IOC spokesman Christian Klaue admitted. “Clearly this is a topic that will be with us for a long time.”

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Monday, January 24, 2022