The notions of sex and gender are intrinsically tied to sport because the essence of sporting activity is about testing our human differences by creating conditions which separate athletes consistent with these differences. Sport organizes competition by dividing men and ladies as the way of protecting that essence and remains one in all the few activities in modern society where sex segregation is accepted, required, and controlled. The inclusion or exclusion of athletes may therefore be viewed as legitimate when within the pursuit of this aim, even when exclusion is incompatible with principles of human rights. The view is that men have significant physiological advantages over women, and this necessitates a division. Even within the female category, whilst women are celebrated for his or her strength, power, and stamina, at the same time they were viewed with suspicion because these are traits that also remain related to masculinity and, in turn, advantage in sport. because the binary division is being challenged by the expansion of personal identity, a singular problem presents itself—how to determine sex for the aim of sport and include individuals who don't meet the strict criteria to be eligible to compete within the binary female category, whilst at the identical time protecting the rights of athletes and ensuring non-discrimination in sport.
In order to protect the categories in sport, international governing bodies like the International Olympic Committee (IOC) and therefore the International Association of Athletics Federations (IAAF, now World Athletics) have had the liberty to use eligibility criteria to those athletes who are appeared to challenge those categories, as a method of somehow controlling femininity. Such rules have mostly been framed around physiological advantage and underpinned by contested scientific understandings of sex and gender. it'll become apparent that there has been little consideration of human rights within the formation of these rules.
Most commentators agree that the historic regulation of sex and gender was humiliating and discriminatory but at that point society also shared a binary view of sex and gender. The underlying rationale was to stop gender fraud, eliminate scandal, ensure fairness, and fair performance advantage, and maintain the existence of masculinity and femininity. Yet, the methods adopted weren't necessarily based upon accurate markers. The IAAF outward physical examinations of female athletes began within the 1930s and developed into the ‘peek and poke’ sex tests within the 1960s. As technology advanced, genetic and hormonal checks like the ‘Barr body test’ were introduced at the 1968 Summer and Winter Olympic Games, which were instead based upon testing athletes for the presence of a Y chromosome, reinforcing the assumption that the possession of a male sex chromosome produces superior athletic This method was inconsistent and unreliable because chromosomes remotely affect performance, and it absolutely was possible for diverse cell patterns to naturally exist in men and ladies. Mandatory chromosomal and genetic testing was abolished by the IAAF and therefore the IOC in 2000, replacing it with a health focused medical exam. They expressed that chromosomal make-up needed to be considered alongside legal and psychological recognition of sex. the results of testing and dividing sport along just some of the factors that determine sex led to the unreasonable exclusion of people whose sex and gender varied and will not be strictly categorized.
Gender verification eventually replaced sex testing, and also the process moved to a ‘suspicion’-based model where testing operated on a personal basis as a part of an eligibility regime. The regulatory framework of the IOC and IAAF medical commissions was re-positioned to target levels of testosterone in athletes competing within the female category. it absolutely was believed that each one female should be hormonally similar because testosterone could be a primary performance think about sport and elevated levels of testosterone can give an athlete an unfair advantage over other competitors. In a sense, this fundamental belief has implicitly continued in contemporary approaches to regulation and testing. it's important to assess the present landscape of intersex and transgender policies so as to pinpoint the shortfalls that will be impacting upon athletes’ gender rights.
CHALLENGES TO THE REGULATIONS
Chand and Semenya brought their cases before CAS, challenging the scientific basis of the regulations and their discriminatory impact. a detailed analysis of the cases is helpful to the present discussion because they reveal the many scientific shortfalls within the regulations which impact upon the legal protection of athletes’ gender rights. The cases also emphasize the incompatibility of the regulations with human rights standards, and an inability to house this within the current sport framework.
From a sport perspective, the crux of this issue is scientific identifying how sex is decided in sport, whether testosterone could be a primary marker for athletic performance, whether the testosterone levels of non-conforming athletes’ impact on the body within the same way as men, whether those elevated testosterone levels give them an unfair advantage over ‘normal’ female athletes and whether that justifies their exclusion from the restricted female events. For CAS, the validity of the principle’s rests upon whether or not they are discriminatory, necessary, reasonable and proportionate. From a legal perspective however, these issues transcend sport and instead concerns compliance with human rights and accountability of sports bodies.