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Gender verification testing for female athletes: humiliating or necessary?

The practice of “sex testing” female athletes is on shaky ground after significant flaws have been exposed in the process that has forever altered the lives of women athletes.

The name Dutee Chand may not mean much to many of us.  However, this name represents the most recent case of shattered dreams for a female athlete who was forced to undergo sex-testing to be eligible to participate in her sport of choice.  In 2014, Chand was 18-years-old and one of the fastest runners in India.  She had won gold in both the 4-by-400-meter relay and the 200-meter sprint in the Asian Junior Athletics Championships in Taiwan.  Her eyes were set on the Olympics.  Growing up poor in a rural village in eastern India, Chand knew the value of hard work and also knew that she wanted more for herself.  She wanted to be an Olympic gold medalist.

“…her physique seemed suspiciously masculine: Her muscles were too pronounced; her stride was too impressive for someone who was only five feet tall.”

When in 2014, Chand received a call from the director of the Athletics Federation of India (the Federation), asking her to meet him in Delhi, she assumed it was for a routine doping test.  Little did she know that after her performance at the Asian Junior Olympics, both competitors and coaches had reported her to the Federation saying that “her physique seemed suspiciously masculine: Her muscles were too pronounced; her stride was too impressive for someone who was only five feet tall.”  These complaints had prompted the Federation to respond by sex-testing Chand.  After undergoing intrusive and at times painful tests, the test results were in.  Chand’s “male hormone” levels were too high, meaning that she produced more testosterone than the average woman.  As a result, Chand was told that she could no longer race.  “Shattered dreams” doesn’t even begin to cover the devastation that Chand felt as she stood in that doctor’s office.  The process had never been explained to her and she did not even know what a “gender test” was.  She certainly did not know why she was being banned from the sport that she loved all because of a few medical tests.

Gender verification or “sex testing” as it is colloquially known, first began in the 1960’s.  However, as early as the 1930’s, the media began fueling the idea that men disguised as women were competing in women’s sports competitions, rigging the system by unfair competition.  Beginning at the Rome Olympic games in 1960, the International Amateur Athletics Federation (IAAF) began implementing rules of eligibility for women athletes.  Tests were initially a physical examination but because this was widely resented, sex chromatin testing was later introduced.  This type of testing was premised on the principle that women have a single X-chromatic mass, whereas males have a Y-chromatic mass.  It sounds simple enough.  If a woman was tested and had a Y-chromatic mass, she was a male and excluded from the sport.

Dutee Chand, like many other women who have been in the same situation, did not take “no” for an answer. 

That process, however, was deeply flawed.  In addition to the risk of contamination and incorrect test results that stemmed from inexperienced workers, the greater problem was that some women possess male chromatin patterns.  When such an abnormality exists, the woman is called phenotypic.  This condition has little bearing on whether or not an individual is male or female.  It simply tests the genetics of the individual –- not the anatomical or psychosocial status of that person.  Over the years, the types of testing have changed but not improved.  It is generally known and accepted that doping enhances performance in both males and females, but whether too much testosterone in the female body has the same effect, is hotly debated.

Dutee Chand, like many other women who have been in the same situation, did not take “no” for an answer.  Chand took her case before the international Court of Arbitration for Sport — essentially the Supreme Court for sport disputes.  She argued that her exclusion by the IAAF was discriminatory and should be reversed.  Chand’s case was heard in 2015 over the course of four days.  A total of 16 witnesses testified, ranging from scientists to athletes.  The IAAF argued that elevated testosterone levels “make the competition unequal in a way greater than simple, natural talent and dedication.”  The IAAF’s concern was that women who possess higher testosterone levels have an unfair advantage.  This is because their bodies respond more strongly to training and racing, than women with lower testosterone levels.

On the other hand, Chand’s witnesses argued that even if testosterone levels enhance performance, this alone cannot explain the success of intersex athletes.  After all, many women who have XY chromosomes actually have low testosterone levels.  In addition to this, researches had found other biological abnormalities that could offer similar advantages such as increased aerobic capacity, resistance to fatigue, flexible joints, etc.  It would be illogical for the IAAF to test each female athlete for each abnormality and disqualify athletes who possessed them.  Why should testosterone levels be any different?

Discrimination has historically encompassed the unfair treatment of an individual based on (among other things), sex. 

Last July the Court of Arbitration for Sport issued its ruling.  It found that while there was evidence that testosterone levels played a role in athleticism, the exact role was unknown, the IAAF was not justified in disqualifying Chand based the current science that was available.  The judge found that requiring women like Chand to alter their bodies to be able to compete in sports was unjustifiably discriminatory.

Many people believe this was the right decision.  Discrimination has historically encompassed the unfair treatment of an individual based on (among other things), sex.  Chand, like many others, could not control her testosterone levels and likewise, had no control over whether or not she possessed an XY chromosome pattern as opposed to an XX pattern.  To be excluded from participating in sport because of her traits is clearly discrimination because it is impossible to control who is born with these traits and equally difficult to try and alter a person’s genetic path.

Chand is not the only one who has suffered discrimination for the sake of “a level playing field.”  In 2009, Caster Semenya was subjected to gender testing after she won the World Athletics Championship by a huge margin.  After she was cleared, Semenya returned to racing in 2010 but spending a year away from the track impacted her in such a way that she never ran as fast as she had before the testing.

With the 2016 Olympics set to begin in Rio on August 5, questions are still looming about genetic testing and now, transgender athletes.  The International Olympic Committee recently released new guidelines that require male-to-female athletes to undergo hormone therapy to be eligible to compete in the games.  The bottom line is that the end to this discussion is nowhere in sight.  The only hope is that science will be able to keep up as more and more star athletes emerge with extraordinary talent who at the same time, happen to have increasingly common genetic abnormalities.

Kendra Alleyne, Associate Editor Emeritus
About Kendra Alleyne, Associate Editor Emeritus (17 Articles)
Kendra Alleyne is a 2017 graduate of Campbell Law School and served as an Associate Editor for the Campbell Law Observer during the 2016-2017 academic year. She is from Lynchburg, Virginia and graduated from Liberty University for a degree in Broadcast Journalism. Over the summer following her first year of law school, Kendra worked as a legal internship at Colon & Associates, where she is currently still interning. Kendra also serves as the Public Relations Chair for Campbell University’s Black Law Student Association.
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