By: Katherine Grzadkowska, Junior Research Associate, PILPG-NL
Two young Namibian track and field athletes have recently had their hopes of competing in one of the events at the 2020 Tokyo Olympics shattered. After achieving exceptional results in 400-meter races, 18-year-olds Christine Mboma and Beatrice Masilingi underwent hormone testing conducted by World Athletics (WA, formerly the IAAF). The tests revealed that both athletes had high levels of naturally occurring testosterone which, according to the WA’s Eligibility Regulations for the Female Classification (Athletes with Differences of Sex Development) (the DSD Regulations), makes them ineligible to compete in international women’s short track events.
Three years ago, South African runner and two-time Olympic champion, Caster Semenya, unsuccessfully challenged the DSD Regulations at the Court of Arbitration for Sport and the Swiss Federal Supreme Court. Semenya has now taken her case to the European Court of Human Rights (ECtHR) challenging the DSD Regulations on human rights grounds under Articles 3, 6, 8, 13, and 14 of the European Convention on Human Rights (ECHR).
This blog post will examine the DSD Regulations’ human rights ramifications concerning the right to private and family life and the prohibition on discrimination under Articles 8 and 14 of the ECHR respectively.
The Regulations and their Justifications
WA is the official governing institution for all international track, field, and athletics competitions. It is also responsible for all aspects concerning athletes’ eligibility to participate in worldwide sporting events, such as the Olympics. As such, the DSD Regulations address the eligibility of female runners with differences in sexual development (DSDs). According to the Regulations, there “is a broad medical and scientific consensus, […] that the high levels of endogenous testosterone circulating in athletes with certain DSDs can significantly enhance their sporting performance” in distance events between 400 meters and 1 mile. Hence, WA established a maximum threshold of circulating testosterone “to ensure fair and meaningful competition in the sport of athletics.” Where it has “reasonable grounds” to believe that a female athlete may have DSDs, the Regulations authorize WA to investigate and conduct mandatory medical tests. If found to have elevated levels of testosterone, the athlete is prohibited from competing in women’s events unless she undergoes at least six months of medical hormone treatment and continuously keeps her testosterones at permissible levels thereafter.
The Regulations’ Human Rights Implications
Aside from the fact that there is conflicting science concerning the actual advantage that women with high levels of testosterone have in running events, WA’s Regulations are controversial from a human rights perspective. In 2020, the UN Human Rights Council (HRC) published a Report on the Intersection of Race and Discrimination in Sports, which identified that the DSD Regulations jeopardized specific human rights. These rights included the “right to respect for dignity, bodily integrity and bodily autonomy of the person” as well as the “right to sexual and reproductive health.” Such principles are encompassed under Article 8 of the ECHR, which concerns the right to private and family life.
The ECtHR has held that Article 8 includes the protection of individuals’ bodily integrity. Because all medical procedures, even seemingly minor ones such as tests and exams, are by their nature invasive of bodily integrity, the Council of Europe requires that all patients provide free and informed consent. Since the DSD Regulations allow WA to order periodic blood tests and medical evaluations by panels of experts, female athletes should freely and knowingly consent to these procedures. Nevertheless, while WA does not formally require athletes to undergo such testing, they may give women little choice if they wish to continue competing.
Furthermore, there are significant power imbalances between WA and athletes who rely on the organization’s acceptance to compete in international events, especially for women who are economically dependent on their athletic careers. This is especially relevant for female athletes of color from the global south who may lack the political capital to challenge decisions made by international sporting associations. Lastly, women who comply with the DSD Regulations and submit to testosterone-reducing medical treatments may unknowingly jeopardize their reproductive health and ability to have children. Since Article 8 also encompasses an individual’s decision to become a parent, the DSD Regulations may have far-reaching implications on female athletes’ family rights.
While they may prima facie infringe Article 8 of the ECHR, the DSD Regulations may nevertheless be justified if they serve a legitimate aim and if the measures are proportionate in achieving that aim. As described above, the chief aim of WA’s Regulations is to ensure fairness in international women’s short track competitions. The ECtHR has held that actions taken by sporting associations, such as medical testing to uncover doping, are legitimate and proportionate measures in achieving “equal and meaningful competition in sports.” However, unlike addressing deliberate cheating, the DSD Regulations allow WA to monitor female athletes’ blood levels and place significant restrictions in response to naturally occurring hormone levels whose effects on sports performance remain inconclusive. Due to these nuances and to the human rights at stake, the ECtHR will be adjudicating a rather unique issue concerning international sports in the case of Caster Semenya.
Moreover, while all athletes have to submit to anti-doping tests, only female runners are subject to the DSD Regulations. This means that the DSD Regulations may also contravene Article 14 of the ECHR, which prohibits discrimination on the basis of sex and other statuses, including medical conditions. The ECtHR has held that differences in treatment between males and females can only be justified in light of “very weighty reasons.” In this case, female runners with high levels of testosterone are subject to specific testosterone thresholds, medical tests, and hormonal treatments over extended periods of time, while no such equivalent rules are applied to male athletes.
Conclusion
The Olympic Charter provides that the “practice of sport is a human right [and] [e]very individual must have the possibility of practicing sport without discrimination of any kind.” While ensuring fair play in sports is a laudable goal, the DSD Regulations may encroach too far on this principle of non-discrimination by subjecting female athletes to a specific set of rules on account of their sex and natural biological conditions. These rules may also jeopardize their rights to their personal bodily integrity and family life as articulated under Article 8 of the ECHR. Semenya’s case at the ECtHR may provide more clarity on the intersectionality of health, sports, and human rights law. As for Mboma and Masilingi, both athletes achieved noteworthy results in the women's 200m race in Tokyo, with Mbona taking the podium with the silver medal in the event.