Athletics federations rely on dodgy science to define who gets to compete as a woman, to create the illusion of a level playing field, argues Payoshni Mitra
In June 2014, I visited Dutee Chand’s village in Orissa when she was unceremoniously dropped from the Indian squad for the World Juniors and the Glasgow Commonwealth Games. I remember I had a stomach bug that day and needed to use a toilet when I went to meet her. I ended up using the open because not a single household in the village of Chaka Gopalpur had a toilet. In my career as an athletes’ rights activist, I have visited the families of several of the other athletes I have worked with and have always wondered about the gap between the ones who regulate and the ones who are regulated.
When I went to the café in the Olympic Museum, which so beautifully portrays the history of the Olympic movement, I noticed that my brunch cost 43 Swiss francs per person, roughly 1.5 times the monthly earnings of Dutee Chand’s parents who were weavers. The IOC (International Olympic Committee) is headquartered in Lausanne, Switzerland and the IAAF (International Association of Athletics Federations) in Monaco, two of the three wealthiest countries in the world. And the regulations that these organisations frame regulate the bodies of women from some of the poorest corners of the world. Having been brought up in a middle-class family in urban India, where we took a few things for granted, it was a lesson for me every time I made that effort to travel to these villages in India and elsewhere. It helped me to understand the athletes I worked with slightly better, and respect these young women who had travelled so far—in every sense—in all respects.
At the Court of Arbitration for Sport (CAS) in Lausanne, I too felt like a misfit. In 2014, two coloured women, Dutee Chand, the appellant, and I, her government-appointed advisor and witness, were present at a court that was predominantly white. Chand was shy and had to depend on me to translate the discussion from English. She sat there sketching images of gods and goddesses, boys and girls. Occasionally, she would write a few lines in her mother tongue or a few words in English. I sat there, having fought very hard to take the case to the CAS, but also aware of my lack of understanding of how things work at the CAS. I was very naïve and as shy as Chand. We didn’t quite realise what we were doing. That our act of being present there was causing disruptions. That we were causing disruptions.
For decades, the sporting world has feared that men would masquerade as women to win women’s events in sports. This fear led to one blunder after another. When asked about the history of sex-testing policies, Professor Arne Ljungqvist, former chairperson of the Medical Commission of the IOC and the IAAF, admitted that it was a “history of ignorance”. Science had been given too much importance in the issue, though science had no satisfactory answer. And would never have one.
There were reports of occasional and informal sex-testing practices as early as the first half of the twentieth century. Routine sex-testing procedures were first introduced in the 1960s. Initially, starting in 1966, all female athletes were required to parade naked and undergo a physical examination by a panel of doctors to be able to compete. Sometimes, they were also required to undergo manual gynaecological examinations. It is reported that the introduction of such a humiliating testing process led to the withdrawal of some top women athletes from international competition.
In 1968, a new, genetics-based test—the sex chromatin test—was introduced. In particular, the Barr test was used to detect, via the proxy indicator of Barr bodies, the presence of a second X chromosome, which was considered typical in females. Athletes’ genetic material was obtained via a buccal smear, a scraping from inside the mouth. While less invasive, this type of testing was soon found to be unreliable. At least 13 athletes did not pass the initial genetic tests conducted at the Olympic Games between 1972 and 1984, and it is thought likely that many more did not pass tests at competitions between the Games. Sex testing came under increased scrutiny in the mid to late 1980s after Spanish athlete Maria Jose Martínez-Patiño was unjustifiably disqualified from competition for “failing” the Barr test. Although she was eventually reinstated, Martínez-Patiño went through a very difficult time after the news of her disqualification was leaked.
This high-profile case led Ljungqvist, then chairman of the IAAF Medical Commission, to initiate change “on the grounds that the rationale for introducing sex controls in the 1960s was no longer pertinent and the procedure discriminated against female athletes with rare genetic disorders of sexual differentiation and development”. The IAAF convened an expert workshop in late 1990 and a decision was taken to abandon laboratory-based sex testing. This decision was based on a number of conclusions, including that the only purpose of sex-testing was to prevent men from masquerading as women and that people who have been both legally and psycho-socially female since childhood should be eligible for women’s competition.
Laboratory testing was briefly replaced, in 1991, by a comprehensive medical assessment of all athletes to determine their sex. But this procedure soon proved too expensive and was discarded. After a second workshop in 1992, the IAAF decided to end routine sex testing and to grant the medical delegate at a competition the authority to start an investigation on the basis of a complaint or suspicion. Meanwhile, the IOC continued sex chromatin testing, introducing in 1992 a new genetics-based method of sex testing. In 1999, the IOC harmonised its rules with those of the IAAF to allow for sex-testing in individual cases if competitors, anti-doping observers, or an athlete herself, raised concerns with the authorities.
In 2006, the IAAF elaborated on this approach in its ‘Policy on Gender Verification’, which stipulated that in the event of any “suspicion” or a “challenge” concerning an athlete’s gender, she could be asked to attend a medical evaluation before a panel comprising a range of specialists. The significant shortcomings of the Policy—both practical and ethical—were soon revealed in two highly publicised and controversial cases: The testing and disqualification of Santhi Soundarajan of India in 2006 at the Doha Asian Games and that of Caster Semenya of South Africa in 2009 at the Berlin World Championships. In both cases protocols of informed consent and confidentiality were not maintained. News was leaked in the media and both athletes were humiliated publicly. On September 11, 2009, an exclusive published by the Daily Telegraph in Sydney claimed to reveal details of Semenya’s test results from Berlin. It was written by athletics writer Mike Hurst. On his retirement in 2012 he was hailed for breaking the story of Semenya’s test results to the world, considered one of his top scoops and achievements.
It was around this time that I started working on this issue. I had previously felt unequipped to answer questions about Soundarajan’s disqualification in 2006. I was interning at the Women’s Sports Foundation founded by Billie Jean King in New York and when asked about Soundarajan, I didn’t have a response. I finished my PhD in 2009 and decided to contact Soundarajan. I didn’t know then that for the next decade I would be working relentlessly to eradicate these unfair policies.
In 2010, the IAAF consulted with the IOC to develop ‘Regulations Governing Eligibility of Females with Hyperandrogenism to Compete in Women’s Competition’. Introduced in 2011, the Regulations emphasised that “the IAAF has now abandoned all reference to the terminology ‘gender verification’ and ‘gender policy’ in its Rules. The 2011 Regulations restricted the permissible amount of naturally occurring testosterone female athletes may have in their bodies, deeming those with endogenous testosterone in the purported “normal male range”, defined as 10nmol/L or above, ineligible to compete in international competition.
In 2014, in another highly publicised case, Indian sprinter Dutee Chand was disqualified pursuant to the 2011 Regulations. After concerns were raised by certain athletes, coaches and officials as well as the Asian Athletics Association, the Athletics Federation of India requested the Sports Authority of India to conduct a medical investigation. Dr Mendiratta, chairman of AFI’s Medical Commission, conducted some tests secretly without the informed consent of the athlete and even tried to hide this fact later. Chand was subjected to multiple physical tests and examinations without being given any explanation. She was subsequently suspended from all competitions until she complied with the IAAF’s Regulations, which would have required her to take medical steps.
This is when my journey with Dutee Chand began. Initially, I had gone to meet her of my own volition and was later appointed by the Government of India as the advisor-cum-mediator in her case. After unsuccessfully petitioning the Athletics Federation of India (AFI) to reconsider their decision, Chand filed an appeal against the AFI and the IAAF with the CAS, challenging the validity of the regulations. It was a long battle convincing the Indian government to support her. Thankfully, the Sports Authority of India’s director general at the time, Jiji Thomson, listened to me and sought scientific opinion from international colleagues like Professor Bruce Kidd and Dr Katrina Karkazis, experts in the field.
In athletics, the scientific technologies used to test sex were employed with the hope of clarifying the boundary between male and female bodies, yet each advance in screening technology has failed to provide a definitive or undisputable marker of the category of “women”. It is unfortunate that, at the CAS judgment on Semenya’s case, so much emphasis was placed on the IAAF’s scientific argument and its much-criticised scientific research. It is important to mention here that the IAAF’s scientific argument in Semenya’s case depended on a single study conducted by scientists paid by the IAAF.
I believe the IAAF’s priorities, as far as this debate is concerned, were completely misplaced. The over-reliance on science that is not foolproof is baffling. On the basis of this inadequate science, young women athletes have been investigated and coerced to undergo invasive and irreversible medical intervention. IAAF scientists published a paper on investigating and conducting irreversible surgeries on four young women athletes from “rural or mountainous regions of developing countries” in 2013. These women did not have any health reasons to undergo those surgeries but had to do so because they wanted to compete in the women’s category. In the past few years, several athletes have silently left the track or have succumbed to unnecessary medical intervention with the hope of continuing to compete. Most never returned to the highest level of sports. Many ended up quitting, having lost their ability to do what they loved most and lost their ability to earn a livelihood.
Their stories testify to the harm caused by these regulations for decades. The IAAF’s focus has been on who is making it to the podium. To them, it is more important to ensure who is winning in one event as opposed to several athletes dropping out, because they felt unsafe or violated. This is because according to the highest body of athletics, a level playing field is more important than a safer playing field. Even Ljungqvist, among others, has admitted that the idea of the level playing field in high-performance sport is illusory and that the advantage conferred by natural testosterone, if any, is fundamentally “no different than the advantage other athletes have because of their genetically endowed height or faster slow-twitch muscle ratio or the misfortune of having a genetic disorder such as Marfan Syndrome”.
High-performance sport is all about outliers. And strangely, as sport lovers, we tend to celebrate this at some times, yet forget this at others. The 2009 World Championships gave birth to two of track and field’s biggest icons, Usain Bolt and Caster Semenya. Yet how differently the governing body of sport has treated these two champions.
Today the IAAF openly states that it is “not a public authority, exercising state powers, but rather a private body exercising private (contractual) powers. Therefore, it is not subject to human rights instruments such as the Universal Declaration of Human Rights or the European Convention on Human Rights”. It is to be seen how this statement is contested in the coming days. But from 2009, since the time the IAAF began to target Semenya, the scrutiny has gradually been reversed. While previously, women athletes endured scrutiny by these governing bodies, the challenges by Chand and Semenya have resulted in increased scrutiny of the IAAF. The international governing bodies of sport have historically not been questioned for these policies. Their claim of not being bound by any human rights instruments is their last-ditch attempt to maintain that advantageous position of being unaccountable.
It is true that there have been occasional admissions from members of governing bodies that the policies have had an unjust effect. However, acknowledging the wrongs of the past has helped shift the blame from individuals as if none of them had any part to play. The argument that the discourse of science is value-free and essentially neutral is not new. The Eurocentric power structure and makeup of the commissions of these governing bodies show different standards. While the athletes I have been working with, like so many athletes from the global South, must always explain themselves and their personal tribulations, the individuals in power remain protected under the cloak of science and an assumption of neutrality.
However, things are changing. With time these governing bodies will be forced to become more transparent and accountable. I have been working towards that day for several years now, and I am hopeful because it is undeniable progress when an 18-year-old from a remote village in Orissa can take on the highest body of athletics as Dutee Chand did. And win.
When the favourable decision was given by the CAS in Chand’s case in 2015, it was a huge victory. Very few people believed we would win and Chand would be allowed to compete freely. When Chand and I connected Semenya to Jim Bunting and Carlos Sayao, the Canadian lawyers who represented Chand, we wanted to put an end to this debate once and for all. Especially after the IAAF proposed to introduce the DSD (differences of sex development) Regulations in 2018 targeting events between 400m and 1 mile, as if to single out Semenya.
When I was in Lausanne this year for those five days during Semenya’s hearing at CAS, I felt a lot more confident than I did in 2015. When the judgment was given in early May, 2019, denying Semenya the right to compete, I was devastated. It took me days to summon up the will to rejoin the battle. Once again, the CAS depended largely on questionable science and IAAF research to reach its decision. Questions have also been raised about the inability of the CAS panel to address human rights issues concerning the DSD Regulations. Many more scholars are working on these issues today and there has been unprecedented media attention since Semenya’s challenge. As an activist in this field who has been part of both these landmark cases, I have realised the importance of these challenges to authority, of being able to cause these disruptions.
This takes me back to the day when I first met Dutee Chand in Chaka Gopalpur in 2014. I was extremely uncomfortable defecating in the open, not knowing then that in a few years, under the leadership of prime minister Narendra Modi there would be a Swachh Bharat campaign. It has been reported since that in certain areas local government staff has harassed, even photographed groups of women defecating in the open. It is as if these women are responsible for causing contamination, a stain on a clean, pure India.
Earlier this year, Chand spoke to the media about being in love with another woman. This was an unprecedented act of ‘contamination’ by a sportsperson in India. There is no denying that in the current political climate, minorities of all types have been further marginalised. The idea of Swachh Bharat echoes in a disturbing way the idea of a ‘decontaminated’ India.
Whether it is today’s India, or it is the arena of high-performance athletics, these acts of ‘contamination’ cause disruptions that give us hope and greater strength to fight, to never give up no matter how formidable your opponent, whether on the track or in a court of law.
This essay was published in the Oct-Dec 2019 issue. The theme was ‘Sport’.