InterAction: Position statement: Participation in sport by women with innate variations of sex characteristics
Michael Barnett OAM
Position statement: Participation in sport by women with innate variations of sex characteristics
The International Olympic Committee (IOC) has announced an eligibility framework that included mandatory genetic testing for all athletes competing in a girls/women category as well as blanket bans on transgender women.
This framework is inappropriate, disproportional, and likely in breach of Australian state and federal anti-discrimination laws. Such an eligibility framework would:
- subject all women to mandatory sex testing or genetic verification as a condition of competing in women’s sport, including women with innate variations of sex characteristics.
- rely on an oversimplified understanding of sex and sex characteristics, and disregard the complexity and diversity of human sex development.
- proceed despite a lack of evidence that the women affected have any decisive or generalisable performance advantage.
- expose affected athletes to significant harm, including stigma, loss of opportunity, and pressure to undergo unnecessary medical interventions.
- entrench gender stereotypes rather than advancing evidence-based and inclusive approaches to fairness in sport
- be contrary to community expectations and Australian law and standards.
Who is impacted?
The women with innate variations of sex characteristics impacted by World Athletics regulations, and similar regulations, are specifically women registered female at birth, with any of a set of traits associated with both a Y chromosome and variable (and subjectively determined) degrees of responsiveness to testosterone.
(Women with innate variations of sex characteristics registered male at birth are impacted by regulations affecting transgender athletes. Women with other innate variations of sex characteristics registered female at birth, and men with innate variations of sex characteristics are not impacted by proposals for sex testing.)
Community expectations
The Darlington Statement, a joint consensus statement by Australian and Aotearoa/New Zealand intersex organisations and independent advocates, notes that discrimination, stigmatisation and human rights violations, including harmful practices in medical settings, continues to occur in Australia and Aotearoa/New Zealand, calling for access to sport for all intersex women, who should be permitted to compete as women.
Compliance with legal and ethical standards
Moves to implement mandatory sex testing for women breach Australian state and federal anti-discrimination laws.
Mandatory genetic testing contravenes standards for genetic testing in Australia, which require that tests have a medical indication, and are not coercive. Women athletes who are required to consent to testing in order to compete are not able to freely consent to testing.
Lack of a clear scientific basis
World Athletics and similar regulations presuppose that sex can be determined by reference to a single sex characteristic. Historically, attempts have been made to determine eligibility in sport by reference to phenotype (physical appearance, in particular appearance of genitals) or chromosomes. Current World Athletics regulations require mandatory testing for the SRY gene. These sex characteristics are rarely tested at birth and, even if tested for, are only one factor among many that influence sex registration.
Involuntary reclassification out of birth registered sex
The application of any method of sex classification that differs from the actual processes of sex determination and classification that applied to individuals at their birth can result in some women registered female at birth finding themselves reclassified in sport. This involuntary reclassification is opposed by community and human rights organisations, clinical and genetics organisations, and the scientist whose team discovered the SRY gene.
Women with traits problematised by World Athletics and similar regulations have innate developmental traits that mean they do not undergo a puberty or sex development comparable to male typical puberty or development. Evidence regarding performance in sport by women with these innate traits is scarce and provides no conclusive evidence of any decisive performance advantage. Even if such evidence becomes available, it need not presuppose that women with these traits are no longer women, nor eligible to compete in sport.
Previous forms of sex testing were similarly opposed by community, human rights, clinician and genetics organisations, due to their profound impact on athletes.
Harm arising from testing
Under previous and current testing regimes, women athletes may only discover that they have an innate variation of sex characteristics in the course of eligibility testing for competitive sport. Athletes have reported severe impacts including loss of employment and career opportunities, loss of relationships, loss of housing, impacts to mental health, and exposure to unnecessary medical interventions. Medical interventions consequential to sex testing in sport have included clitorectomies and other feminising interventions which have no relationship to ability to participate in sport. Reported medical interventions consequential to sex testing in sport also include interventions requiring lifelong access to hormone replacement.
Excluding women and girls with some innate variations of sex characteristics from women’s sport risks compounding the disadvantage experienced by those women which, in many cases, will have begun with risks or experiences of unnecessary elective and often traumatising feminising interventions, without personal consent, commencing soon after diagnosis.
Harm arising from public scrutiny and debate
Decisions to restrict or exclude intersex women from sport are based on gender stereotypes rather than science. Intersex athletes can face shaming and stigma based on ideas of what female and male bodies should look like. Women who have been subjected to speculation about their sex characteristics and development have been demonised on social media.
Public scrutiny and public humiliation have contributed to the severe impacts felt by women athletes found to have an innate variation of sex characteristics in the course of sex testing for competitive sport. Public scrutiny and debate about women’s participation in sport also contribute to the stigma and harms felt by all people with innate variations of sex characteristics.
Open and transparent processes
The IOC and other sporting bodies must ensure that the processes by which it develops and implements policies are transparent, open, and accountable, and enable athletes to ensure that their human rights are respected, protected and fulfilled.
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This Position Statement has been drafted by A/Prof Morgan Carpenter, InterAction for Health and Human Rights; Heather Corkhill, Equality Australia; and Hayley Conway, Pride Cup.
Read our news statement on this issue.
If you are impacted by the issues in this statement and you have an innate variation of sex characteristics, or you are a family member of someone with an innate variation, you can contact InterLink and Intersex Peer Support Australia for support and community connection.