Gender & Sexuality Law Blog

Andy Kravis is a rising 3L at Columbia Law School, where he is pursuing certification in gender and sexuality law through Columbia’s Center for Gender & Sexuality Law.  In addition, he serves as Submissions Editor for the Columbia Journal of Gender and Law, and he works on cases for the Columbia Sexuality and Gender Law Clinic.

Yesterday, the New York Times published an article discussing the adoption by the International Olympic Committee (IOC) of new regulations for determining whether someone should not be allowed to compete as a woman if her sex is questioned. The new regulations come on the heels of the 2009 imbroglio surrounding South African track star Caster Semenya, whose deep voice and musculature led to allegations that the then eighteen-year-old was not eligible to compete as a woman. The sensationalized International Association of Athletics Federations (IAAF) investigation was widely regarded as an affront to Semenya’s privacy and dignity. Almost a year later, the IAAF issued a cryptically terse statement once again clearing Semenya for competition.

Two years later, and here we are again. The IOC’s guidelines for determining an athlete’s femaleness are as follows: the Chairman may convene an “Expert Panel” of one gynecologist, one genetic expert, and one endocrinologist, who together must determine “whether the investigated athlete’s androgen level, measured by reference to testosterone levels in serum, is within the male range.” Female hyperandrogenism is of no concern to the governing body, however, unless it “confers a competitive advantage,” in which case the investigated athlete is declared ineligible to compete.

The IOC is hardly the first athletic governing body to take a preemptive strike at female athletes with seeming “competitive advantages.” In 1976, the United States Tennis Association (USTA) required Renée Richards to take a chromosomal sex determination test before she could compete in the U.S. Open. Richards had undergone sex reassignment surgery the year before, and had competed in several women’s tournaments leading up to the U.S. Open. The chairman of one tournament in which Richards had played said he had invited Richards “as a woman” based on his “observation of primary and secondary sexual characteristics.”

The USTA was not so easily satisfied, claiming that a chromosomal test was necessary to prevent “female impersonators” and “impostors” from unfairly entering the women’s draw for financial gain. Neither were many of her competitors, who claimed Richards had a competitive advantage, in that she was taller and stronger than most of the field by virtue of having been born male. Richards, for her part, supplied the USTA with the testimony of several physicians that her physical, psychological, social and endocrinological makeup were those of a woman. But despite Richards’ lack of male gonads, her female hormones, her decreased muscle mass and redistribution of body fat, her female genitalia, and, most importantly, her female self-identity, the USTA disqualified her on the basis of the one immutable male characteristic she possessed – a Y chromosome.

The state court found the USTA’s newly-implemented test to be “grossly unfair” and a violation of Richards’ rights under the New York Human Rights Law. “The only justification for using a sex determination test in athletic competition,” the court wrote, “is to prevent fraud, i.e., men masquerading as women, competing against women. This court rejects any such suggestion as applied to plaintiff.”[1]

The link between Renée Richards and Caster Semenya is not difficult to see: Both were female athletes who pushed the boundaries of their respective governing bodies’ definitions of womanhood. Medical and athletic bodies have traditionally defined maleness and femaleness using certain biological guideposts (e.g., chromosomes, hormones, internal/external genitalia, secondary sex characteristics, and so on). And as general rules, these guideposts hold true: vis-à-vis secondary sex characteristics, men are on average taller and stronger than are women, and women on average have larger breasts and grow less hair than do men.

But these categories are fluid. They vary widely within and across the sexes, and the slippages in these distinctions are nowhere more evident than in women’s athletics. Olympic-level female athletes are necessarily the tallest, strongest, and fastest women. They press against the ceilings of “female ranges” of biological characteristics, and they are certainly stronger and faster than most men. Which raises the question: at what point does a tall woman, or a strong woman, or, in Caster Semenya’s case, a fast woman, cease to be a woman because she is tall, or strong, or fast?

According to the IOC, the answer is whenever her testosterone levels veer into what have been deemed the “male range.” Dr. Eric Vilain, one of the medical advisers to the IOC quoted in the Times article, said that the upper range of a woman’s testosterone level and the lower range of a man’s do not overlap, and between them is “a huge no man’s land” unless the woman is born with intersex conditions. And even then, he said, overlap is extremely rare.

So what exactly happens if a female athlete’s testosterone levels rise into the male range? Does a woman with high testosterone levels cease to be a woman once an outside observer notes her testosterone levels? Is she Schrodinger’s Woman?[2]

The suggestion is clearly absurd. That’s because testosterone levels are not the sole marker of maleness or femaleness. The new IOC guidelines thus do not demonstrate a concern with preventing male athletes from competing against female athletes (although I don’t doubt that the IOC is concerned about that possibility); if that were truly its only concern, the IOC would employ a more holistic test. So if not separating men from women, what is the IOC doing here?

The answer, in my mind, is that the IOC feels that it is making the Olympics fairer by weeding out any female athletes from women’s competitions who are “too male.”  It’s a pervasive notion that having to compete against the tallest, strongest, and fastest women is somehow unfair to “real” women. Renee Richards’ competitors complained that having been born a biological male gave her an unfair advantage. Caster Semenya’s competitors complained that women with such high testosterone levels “should not [be allowed to] run with us [women].” Semenya’s competitors got their wish: as part of the IAAF’s reinstatement, Semenya agreed to undergo medical intervention in order to be “female enough” to continue to compete in women’s track. And indeed, Semenya’s face has gotten rounder and her figure curvier since 2009. But what Semenya has now that she didn’t have before,  what makes her female enough to compete against the women – other than about a four-second dip in her season-best 800-meter time – is difficult to pinpoint.

The IOC is ultimately concerned with projecting an aura of fairness that will lend legitimacy to the London Games. The “competitive advantage” the IOC seeks to eliminate boils down to a difference in the way certain women’s bodies process certain hormones. But the very thing that separates world-class athletes from everyday people, besides rigorous training of course, is that their bodies are naturally better equipped to perform the event. By way of example: even if, starting tomorrow, I trained to run the 800-meter dash every day for four years, I would never be faster than Caster Semenya. The same is true for most people. So I find almost palpable the illogic of preventing a woman from competing in women’s athletics because her body is so well-adapted that she would have an advantage over all other women. Isn’t that precisely the spirit of competition? Of the Olympic Games?

Talking about Caster Semenya, author Alice Dreger stated that “[u]nfortunately for I.A.A.F. officials, they are faced with a question that no one has ever been able to answer: what is the ultimate difference between a man and a woman? . . . People always press me: ‘Isn’t there one marker we can use?’ No.” But the IAAF and IOC have both settled on testosterone levels as that one marker anyway. Dr. Vilain [the IOC medical adviser] called the guidelines imperfect, but said “you have to draw a line in the sand somewhere.”

Everyone is aware that this is a line-drawing exercise. Sex segregation in sports, and in fact a great deal of lawmaking, is a line-drawing exercise. And as lawyers and law students are duly aware, many line-drawing exercises are recursive upon where previous lines were drawn, which makes them imperfect and often arbitrary. In the sense that most Olympic sports are predicated around sex segregation, yes, you do have to draw a line somewhere. But we know just as little, if not less, about what distinguishes men from women now than the Richards court did in 1977.

Sports are one of the last great bastions of the rigid male/female divide. And, as cases like Caster Semenya and Renée Richards show, policing that line is a Sisyphean task.  Just when governing bodies believe they have defined womanhood so as to prevent men from “playing down,” an extraordinary woman comes along to expose the artifice of the distinction.

Don’t be surprised if, in our lifetime, sex distinctions in many major sports undergo radical alterations. Just as boxing and wrestling have weight divisions, we may see the advent of testosterone-level divisions in athletic competitions as it becomes more widely understood that testosterone level and sex are not mutually determinative. Or, perhaps as we acknowledge that what we are policing is not sex but rather women’s achievement, the divisions will begin to collapse altogether.