Policing Gender Boundaries: Testosterone, sex-testing, and human rights

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A placard placed on a statue by the human-rights advocacy group dedicated to intersexed (DSD women) persons is seen during a protest at International Olympic Committee (IOC) headquarters on November 19, 2009 in Lausanne(Image credit: Getty Images)

At a time in professional cycling when parity between the men and women is front and centre, the spotlight has shifted onto the debate concerning the inequalities within the women's category of sport.

The IOC introduced an updated version of its 'transgender and hyperandrogenism' guidelines, which govern transgender females and females born with higher levels of testosterone due to differences of sex development (DSD or hyperandrogenism). These two groups have been the subject of controversy in sport for over seven decades. The IOC is expected to be coming out with new rules for transgender females who wish to compete in the women's category.

Also, the Court of Arbitration for Sport (CAS) announced its verdict in the Caster Semenya vs. International Association of Athletics Federations (IAAF) case on Wednesday. It was an appeal over the IAAF's new regulations that decide the eligibility and legality of females who have higher testosterone levels – due to one of seven differences of sex development (DSD) – to compete in the women's category of Athletics. The IOC and IAAF refer to females with hyperandrogenism conditions as 'intersex' or DSD athletes. The IAAF moved to restrict these individuals from competing in events from the 400 metres to the mile.

After lengthy deliberation, Semenya lost the landmark case against the IAAF, and the sport's governing body will be allowed to restrict testosterone levels to 5 nmol/l in DSD athletes who race in certain events. Even though the CAS ruled in favour of the IAAF, it also said that it had "serious concerns" about the application of the new regulations. It found that the new rules were discriminatory towards DSD athletes, but that the discrimination was "necessary, reasonable and proportionate" to protect "the integrity of female athletics", as reported on BBC Sport.

The new rules will force DSD athletes to medically lower their testosterone if they wish to continue competing in the women's category in certain events of Athletics. The evidence to support this new regulation, based on a study that apparently showed performance advantages for certain track and field events (which has been argued to be flawed), is what was deliberated over at the CAS in the case of Semenya vs. IAAF.

Following CAS' verdict, the World Medical Association has advised physicians around the world not to take part in implementing new eligibility regulations for classifying female athletes. WMA President Dr. Leonid Eidelman said: "We have strong reservations about the ethical validity of these regulations. They are based on weak evidence from a single study, which is currently being widely debated by the scientific community."

"We have taken note of the CAS decision in this case and recognise these issues are complex," said a spokesperson from the IOC. "The IOC is currently working with a group of experts on the creation of guidelines to help international federations shape sport specific policies and regulations in relation to fairness, safety, inclusivity, and non-discrimination on the basis of gender identity and sex characteristics."

The policy structured around what types of women can compete in sports is continuously evolving. The IOC's current transgender and hyperandrogenism guidelines replaced the controversial 2003/04 Stockholm Consensus that required transgender females to undergo sex-reassignment surgery if they wanted to partake in women's-category competition. Such individuals were also forced into humiliating forms of gender verification processes to obtain licences under their sporting federations.

"Since the 2003 Stockholm Consensus on sex-reassignment in sports, there has been a growing recognition of the importance of autonomy of gender identity in society, as reflected in the laws of many jurisdictions worldwide," a spokesperson of the IOC told Cyclingnews. "To require surgical anatomical changes as a pre-condition to participation is not necessary to preserve fair competition and may be inconsistent with developing legislation and notions of human rights."

The critical point is that it's more than a sporting or testosterone issue; it's also a human rights issue. Canadian cyclist and human rights activist Kristen Worley detailed her experiences with gender verification and human rights laws in her recently-released memoir. Her book was co-authored by Johanna Schneller and titled 'Woman Enough: How a boy became a woman and changed the world of sport'.

In 2015, Worley challenged the IOC, along with the World Anti-Doping Agency (WADA), the UCI, Cycling Canada (CC) and the Ontario Cycling Association (OCA), outside of the CAS, in the court of civil law at the Superior Court of Justice and then the Ontario Human Rights Tribunal in Toronto. Her case brought attention to the lack of scientific research behind the policies, practices and protocols for these individuals. She also demonstrated how the IOC's guidelines filter down through the international federations (UCI) and into the national (CC) and provincial (OCA) rules, affecting athletes at the lower levels of sport.

Worley fully transitioned, having undergone sex-reassignment surgery, in her late 20s. Her transition process took roughly five years. She has neither testes nor ovaries, so her body doesn't produce an adequate amount of hormones necessary to be a healthy individual. For health purposes, on multiple occasions she requested a Therapeutic Use Exemption (TUE) to take medically-administered testosterone, but the process took nine months, as opposed to the usual two or three weeks. Worley's health waned, and she was forced to stop competing.

"The policies that were created by the IOC were generated by a handful of individuals at the IOC Medical Commission and were not a scientific statement. It was a statement to procedures. It helped nations look at the ideals of being able to create recommendations for athletes who transitioned to be able to participate in sport. There was no scientific evidence to the paperwork or policies that the IOC was putting forth through the Olympic movement," Worley told Cyclingnews, referring to the Stockholm Consensus.

At the Human Rights Tribunal, two sets of mediations with the UCI, CC and the OCA led to a settlement agreement that included advocation for individualised TUEs for transitioned athletes. It also included advocating for the establishment of standards and guidelines related to transgender athletes based on objective scientific research. The sport's governing bodies must now review and revise internal policies to embrace human rights, and launch awareness and education related to diversity of participants.

"Our approach to providing guidance on participation is based on medical and expert consensus in an ever-evolving area of research and learning," a spokesperson at the IOC told Cyclingnews. "Therefore, we are constantly reviewing our guidance in a process led by the Medical and Scientific Commission, informed by inputs from the Athletes Commission, the Women and Sport Commission, and outside experts. The guidelines are being developed in light of legal, medical, and scientific developments as well as the IOC's advancement in understanding its responsibilities in regard to respecting human rights."

Cyclingnews requested from the IOC examples of the objective scientific research along with the medical expert advice used to determine both the current and soon-to-be-released transgender and hyperandrogenism guidelines, which they did not provide. Cyclingnews understands that the review of the matter at the CAS, concerning DSD athletes, was based on a study from the Endocrine Reviews, Volume 39, Issue 5, October 2018.

Cycling Canada confirmed to Cyclingnews a list of areas of changes following the settlement. It included panelled discussions on diversity, a review of the OCA's Code of Conduct and Ethics to ensure it complies with Ontario Human Rights Code, and policy changes were made and posted on its website and discussed at OCA official meetings with project coaches and staff. Also, the OCA does not verify gender at the time of application, and transgendered athletes race in their chosen or identified genders.

Disappointed that the sport's policies are not created on objective, peer-reviewed science at the IOC level, Worley wrote in her memoir, "Did we get everything we wanted? 'No.' We gave a little, and they gave a little. But we kept inching forward. We made people talk about it. We chipped away at their biases, got them to think about their knee-jerk responses: Why you think that a woman being healthy is a competitive advantage?"

Olympic sports are constructed on a traditional gender-binary system – XX female and XY male – and athletes who fall outside of those two boxes have had to push for non-binary inclusion at both the local and high-performance level of sport. The ICO also considers its women's category to be 'protected' due to the physical advantages in strength, speed and endurance of men, primarily because of higher circulating testosterone after puberty, which can be 15-fold that of women.

The debate flared up within cycling last October when track cyclist Rachel McKinnon won the world title in the women's sprint at the UCI Masters Track World Championships. McKinnon is registered as a female athlete with a category 1 licence (elite level), and so she is obliged to follow the IOC/UCI guidelines. USA Cycling confirmed to Cyclingnews that McKinnon has followed the rules and that she has every right to compete.

Studies have shown that, in non-athletes, testosterone levels for females have a range of between 0.4 nmol/l and 2.0 nmol/l, while healthy male testosterone levels range between 7.0 nmol/l and 30 nmol/l, showing a clear gap between the two. In the world of sports, however, the lines are blurred because elite female athletes' levels can reach as high as 7.7 nmol/l, in a study titled 'Endocrine profiles in 693 elite athletes in the post-competition setting'.

The IAAF pointed Cyclingnews to a dispute to the aforementioned study in the Science Media Centre, which is not a study but rather a response from Prof Ieuan Hughes, Paediatric Endocrinologist and Emeritus Professor of Paediatrics, University of Cambridge. According to the IAAF, the response underlines that there is a variety of scientific opinion on the specific issues surrounding DSD athletes.

"A receptor complex that is more sensitive to testosterone can also be seen as 'unfair'," she said. "A receptor complex that is less sensitive to testosterone needs more testosterone to function in a 'normal way', whereby lessening an athlete's testosterone can have negative health consequences, making sports participation eventually impossible, as body metabolic function slows down or even ceases due to lack of androgen stimulation.

When considering transgender females, individuals who have not undergone sex-reassignment surgery must reduce their testosterone levels to the lower end of the healthy male range of 7.0 nmol/l to 30 nmol/l. This is now accomplished through the use of testosterone blockers. Transitioned females who have undergone complete sex-reassignment surgery, and whose bodies, therefore, do not produce testosterone, are now permitted a TUE to take synthetic hormones based on a medical need to maintain normal health.

In the case of DSD athletes, the IAAF now deems such individuals to be 'intersex' if they produce natural testosterone higher than 5 nmol/l and are highly sensitive to that testosterone. Under the new regulations, females who were born with one of seven DSDs must now restrict their testosterone levels to 5 nmol/l or less if they want to compete in the women's category in certain Athletics events. The IAAF has argued that the limit aims to include athletes who are born with conditions such as polycystic ovarian syndrome, but to exclude DSD athletes, to protect fairness in women's-category events.

The IOC and the IAAF have a long and controversial history of policing women in sport. Sex-testing is how sport governing bodies determine who is eligible to compete in women's high-performance competition, and who isn't. It's not a new concept, and it's a shady business. The practice has been referred to by athletes and external bodies, such as the United Nations, as humiliating and, in many ways, it has been seen as a physical and psychological violation of female athletes.

The United Nations has decried the IAAF's new regulations for DSD athletes as being a violation of human rights. In light of Semenya's case, it released a statement in response to testosterone reduction, asking sports governing bodies "to refrain from developing and enforcing policies and practices that force, coerce or otherwise pressure women and girl athletes into undergoing unnecessary, humiliating and harmful medical procedures in order to participate in women's events in competitive sports."

The fact is that not all women's bodies are equal – not in sport, and not in the real world. There are myriad individual variations of sex development. Some women have XX chromosomes and ovaries but ambiguous genitalia. Some women are born with XY chromosomes and have testes hidden in the abdomen, and they are either sensitive or insensitive to the higher testosterone levels, but they otherwise develop as female bodies. And some women are born with XY chromosomes and male genitalia, but identify as being female. Moreover, there is the basic understanding of XX chromosomes and XY chromosomes, but there can, in fact, be upwards of nine other variations.

High-profile cases that hit the mainstream media refuel the debate around the controversial practices of gender verification in sport. Indian track and field athlete Santhi Soundarajan found out she had 'failed' a sex-verification test on TV and was subsequently stripped of her silver medal won at the 2006 Asia Games in Doha. She was later reported to have attempted suicide the following year under the embarrassment of her highly publicised medical condition.

Semenya was sex-tested in 2009, and her results were leaked to the press. She has faced a 10-year battle to continue to compete, with her recent appeal against the IAAF's new regulations deliberated on at the CAS more than a decade after she first faced public scrutiny over her gender. After losing that battle at the CAS, Semenya released a statement that read: "For a decade the IAAF has tried to slow me down, but this has actually made me stronger. The decision of CAS will not hold me back."

Under the IOC's Stockholm Consensus, transgender females would have had to undergo sex-reassignment surgery and two years of hormonal therapy in order to compete. To acquire a licence to race, Worley, who had already undergone sex-reassignment surgery, had to go through the gender verification process, which she said was conducted by two panels of men who were members of both Cycling Canada and the Canadian Centre for Ethics in Sport (CCES).

"I was put through the physical piece as much as the psychological piece," Worley said. "These were reviews being generated and coordinated by these groups of men who had no background in this space whatsoever, but they felt that they could do these things to me and that they had a right to do these things to me because the IOC had put out these policy statements. They assumed that I was somehow a threat to sport. It goes one step further – they felt that I deserved it."

Update: The UCI’s most recent transgender guidelines came into effect in 2022 - stipulate that transgender women athletes must declare that their gender identity is female, demonstrate that their total testosterone level in serum has been below 2.5 nmol/L for a period of at least 24 months, and then remain at 2.5nmol/L throughout the period of desired eligibility to compete in the female category.

Kirsten Frattini is the Deputy Editor of Cyclingnews, overseeing the global racing content plan.

Kirsten has a background in Kinesiology and Health Science. She has been involved in cycling from the community and grassroots level to professional cycling's biggest races, reporting on the WorldTour, Spring Classics, Tours de France, World Championships and Olympic Games.

She began her sports journalism career with Cyclingnews as a North American Correspondent in 2006. In 2018, Kirsten became Women's Editor – overseeing the content strategy, race coverage and growth of women's professional cycling – before becoming Deputy Editor in 2023.