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SEX TESTING IN SPORTS: ANALYSING THE IMPACT ON HUMAN RIGHTS

Introduction

While the contemporary world is a raging fan of competitive sports, the discriminatory and humiliating practice of sex testing or gender verification that the athletes have to go through rarely ever comes to light. In addition to the fact that the elite athletes tasked with the glory of representing their nations on a global platform have to go through this abusive practice, the shocking revelation that this practice is biased against women, adds fuel to the fire of gender discrimination. This article attempts to shed light on the inhumane practice of sex testing for women athletes and its implications on their human rights.

Induction and Introduction to the Practice

The practice of sex testing or gender verification was officially mandated by an organisation as prestigious as the International Olympic Committee in the beginning of 1968. The rationale or justification given at the time was to ensure ‘fair play’ on the grounds that men might pose as women in female-only sporting events or that the women with ‘masculine features’ would have an unfair physical advantage over the others. There have been various instances, even in India when the gender of female athletes was questioned on the grounds of pronounced muscles, a specific gait or any other feature which was considered to be ‘not feminine’.

In earlier times, the testing, as protocoled by the International Athletic Association, was physical in nature and was done by ultrasound, natural testosterone testing, chromosome analysis and gynaecological exam. These tests helped identify the competitors whose chromosomes, hormones, genitalia, reproductive organs or any other secondary sex characteristics were not as per their predetermined standards and the term ‘intersex’ or DSD (Disorder in Sex Development) was associated with them. Subsequently, with gradual and constant advancement in biotechnology, other tests were introduced and inducted, which tested the contestants on the basis of their genes and internal genital organs. Women have only two options: to either undergo medical interventions or withdraw from the competition with any semblance of the dignity which they are left with.

However, the purpose of such change was not to ensure better and humane treatment of the participating athletes, but rather to have a more extensive and thorough testing so that no female with DSD could participate in the competitive games. The justification provided by the conducting authorities was that it was done to avoid any unfair physical advantage to the subjected females. Incidentally, no medical evidence has been produced which could prove that female athletes with DSD have displayed any sports-relevant physical attributes which were not seen in biologically normal females.

Although, these regulations are imposed only on the women athletes associated in the sports industry, it is altogether a discriminatory practice against the intersex people or the people suffering with DSD. Such discriminatory treatment causes a psychological harm on the individuals. They also have to face social stigma as a result of such revelations and the cost of treatment, often forced, is very high, which further puts an economic strain on them.

Implication and Impact on Human Rights

Women track and field athletes being targeted are largely from around the globe and are being abused and humiliated by the sex testing regulations. These tests involve regulations which are discriminatory in nature and coerce women to undergo medical intervention which is harmful physically, psychologically and economically. Further, these tests are also responsible for potentially violating the human rights of the women athletes by violating their right to privacy, health and non-discrimination. This, subsequently, leads to the policing of women’s bodies on the basis of definitions of femininity and racial stereotypes which are arbitrary in nature.

Article 12 of the Universal Declaration on Human Rights (UDHR) prohibits the arbitrary interference of an individual with his privacy, or any attacks on the honour and reputation of the individual. Similarly, Article 17 of ICCPR prohibits any such violation of the privacy of the individual and protects the honour and reputation from any unlawful attacks. Even at the national level, right to privacy has been recognised as a fundamental right under Article 21 of Constitution of India. The processes involved in assessing the female athlete’s sex characteristics, including testosterone levels, are inherently subjective and degrading. By enforcing these regulations, the world athletics regulating organisations effectively coerce women athletes into medical testing and interventions that have no health purpose or benefit.

The right to health guaranteed under Article 25 of UDHR as well as Article 12 of ICESCR are violated by these regulations, as many of the times, the women are either coerced or persuaded to have medical intervention to qualify to participate in the competitions. Such medical procedures are not only expensive but also hamper with the physical and mental health of the individual.

Further, protection from any kind of discrimination is an essential human right which is violated by the gender verification testing, since this testing is discriminating not only on the basis of sex, but also the frequency of tests done on women of race are far higher. Article 2 of UDHR prohibits discrimination of both sex and race and provides for equality to all in all platforms of life. The regulations mandated by the athletics regulatory organisations, such as International Association of Athletics Federation, put extensive burdens and restrictions on the women athletes, both within and outside the sports. The fact that there is only such a regulation for women—and none for men—means the regulations are intrinsically discriminatory against women.

Suggestions and Recommendations

Various medical organisations as well as women athletes have spoken up against the inhumane and arbitrary practice and have advocated for the removal of the hyperandrogenic policy of the athletics organisations. There have been reports by the human right organisations, recommending to the world athletic organisations to take a more human right policy approach to duly assess the eligibility of female candidates in sports, which should not be based on discriminatory and arbitrary standards. Steps should also be taken to combat the psychological stress and harm caused to the female athletes subject to this testing in the form of shame and humiliation suffered by them.

The athletic organisations, such as the World Athletics and International Olympic Committee, should adopt the guidelines laid down in the UN Guiding Principles on Business and Human Rights, the main purpose of which is to protect the inherent human rights of those individuals who are working with these business organisation. Additionally, these guidelines forbid all those practices which can potentially violate their right to privacy or might subject them to any such discriminatory practices. Even the governments should ensure that they have strong anti-discrimination laws, so that the athletes who are representing their countries on international platforms are not subjected to any discrimination on the basis of gender, race or sex.

Conclusion

The practice of gender verification or sex testing has been continued since the early Olympics games. However, it is high time that the discriminatory practice must be stopped. It is acceptable that a mechanism is put in place to check the eligibility of the participants to be qualified in such prestigious sports competitions. However, it must be ensured that such mechanism is not arbitrary, derogatory or discriminatory in nature. It must also be ensured that such eligibility criteria must be based on grounds that are medically and scientifically proven to be determining factors and are equally applied on both men and women. The glory and honour placed upon the participants representing their countries in the map of the world is high and there should not be any humiliating practice in their way, creating an obstacle in their path.


Title Image: The New York Times


This article has been written by Kanishka Iyer. Kanishka is a third year law student at GNLU, Gandhinagar.