In April 2019, Caster Semenya, the two-time Olympic champion sprinter from South Africa, lost her appeal with the Court for Arbitration for Sport. The court ruled, with judges voting 2-1, in favor of a cap on testosterone levels for women in elite athletics competition, forcing Semenya to take drugs to artificially lower her testosterone to compete in certain women’s events.1 A number of writers and organizations responding to the ruling cited human rights concerns.2 A month later, Semenya appealed the ruling in a Swiss court. Her lawyers said in a news release that her case “focuses on fundamental human rights.” According to Semenya’s lawyers and supporters, the regulation is arbitrary in defining gender based on an artificial threshold. More significantly, it can be understood as discriminatory and violating the right to participate in cultural life (which includes the right to participate in sport) and the right to the highest attainable standard of health.
But beyond the effect of this ruling on the ability for an Olympic gold medalist to compete without being forced to take testosterone-lowering drugs (which ironically include a steroid, glucocorticoid) are the questions it raises about sex segregation in sports more generally, and whether this is itself a violation of human rights.
While a majority of individuals identify as either male or female, non-binary sexes and genders (those that are not either male or female) are culturally or legally recognized in several countries around the world. These include the hijra of South Asia, Two-Spirit identities in American Indian communities, non-binary individuals in North America, and the kathoey in Thailand. These third gender identities are in addition to diversity relative to biological sex; intersex conditions are present around the world, in which a person’s physical make-up is not clearly categorizable as male or female, including hormonal levels, as perhaps in the case of Semenya.
Despite the diversity in sex and gender in many cultures, the world of sport remains largely sex-segregated with few co-ed or gender-neutral options. Most athletic competitions beginning in youth separate girls from boys and women from men. And while this may foster a more even playing field for girls and women in some sports and encourage their participation, it leaves little opportunity for those who transgress binary gender norms to compete. Those with non-binary identities may not feel affirmed in their identity by being forced to choose between the male or female team.
In addition to sports being recognized in human rights treaties as part of the right to participate in cultural life and the right to health, the Convention on the Rights of the Child, while not explicitly referencing athletics, articulates in Article 31 the right of the child “to engage in play and recreational activities appropriate to the age of the child”.3 This emphasis on recreation and play encompasses the world of youth sports. As a recent study revealed that almost 3% of teens identified as transgender or non-binary, a potentially sizable population experiences exclusion from sport at youth levels.4 Failing to include these children and adolescents is discriminatory and contrary to the principles of universality and non-discrimination in the field of human rights.
The ruling against Semenya claimed the integrity of women’s sports was being protected by preventing women with elevated testosterone levels from competing. However, several sports environments – for example, ultimate frisbee at the high school level, co-ed recreational leagues at the adult level, and gender minority-inclusive sports such as roller derby and horse racing – have demonstrated that women can enjoy participation and compete successfully alongside men. Additionally, many youth sports are gender-integrated at the youngest ages. The existence of mixed-gender teams suggests that there is value to athletes of different genders playing alongside one another. Expanding these opportunities may be of particular value to those who are non-binary or intersex, but explicit policies should be incorporated to ensure safe and affirming athletic spaces.
In a letter to the International Association of Athletics Federations (IAAF), the entity responsible for the regulation affecting Semenya, UN Special Rapporteurs described testosterone caps as discriminatory against women, stating that these regulations diminish “their chances to participate in the sports competition category in line with their gender, as well as the enjoyment and exercise of their human rights, including the right to health…the right to employment, and to their livelihoods.”5 While this document was not discussing sex segregation in sport generally, the same implications apply for those with non-binary identities and intersex conditions due to a lack of inclusive policies and practices.
Steps need to be taken towards ensuring all genders have the opportunity to participate in sports. States have legal human rights obligations both to protect all people’s right to participate in sport and they also have duties to prevent third parties from discriminating against non-binary and intersex individuals. States could mandate that educational settings, for example, have at least one gender-inclusive sports team in their institutions. States must also progressively implement policies that are inclusive of non-binary individuals and promote gender-inclusive sporting environments. As the Special Rapporteurs also state in their letter to the IAAF, “it is critical to strengthen the integration of human rights principles…to protect intersex people from these abuses and from discrimination, including in sports, and to combat root causes of these abuses including harmful stereotypes, stigma, and pathologization.”6 While some States have recently allowed for a third, non-binary gender option on legal documents, for example, other States have regressed in their protections for gender minorities, limiting their entrée into certain sectors of society such as the military. The creation of a sporting environment in which non-binary and intersex individuals are legally and socially recognized would also help their inclusion and acceptance in other parts of society.
Human rights frameworks describe the principle of participation as necessary for the full realization of human rights. When attempting to establish eligibility criteria and promote opportunities for inclusion for all athletes, gender minority individuals should have a voice in the discussion, alongside cis-gender identified athletes. Incorporating gender minorities into decision-making advances not only human rights, but international sport entities’ missions to promote “sport for all” (IAAF, 2019) and to “put athletes at the heart” of the sports movement (IOC, 2019) and can build a foundation for more inclusive societies worldwide.7
Caroline Voyles is director of student placement and partnership development and a PhD candidate in the department of Community Health and Prevention at Drexel University’s Dornsife School of Public Health
- Court of Arbitration for Sport (2019). Semenya, ASA and IAAF: Executive Summary. Retrieved on May 28, 2019 from: https://www.tas-cas.org/fileadmin/user_upload/CAS_Executive_Summary__5794_.pdf
- Human Rights Watch (2019). Caster Semenya loses appeal for equal treatment. Retrieved on June 27, 2019 from: https://www.hrw.org/news/2019/05/01/caster-semenya-loses-appeal-equal-treatment; Neophytou, N. (2019, May 3). Caster Semenya’s fate isn’t about running. It’s about human rights. Retrieved on June 27, 2019 from: https://www.cnn.com/2019/05/03/opinions/caster-semenya-case-about-human-rights-not-running-neophytou/index.html; Doorey, J. (2019, May 1). Why the Caster Semenya case is a human rights issue. Retrieved on June 27, 2019 from: https://www.cbc.ca/sports/iaaf-caster-semenya-human-rights-1.5115453
- UN General Assembly (1989). Convention on the Rights of the Child, 20 November 1989, United Nations, Treaty Series, vol. 1577, p.3 available at: https://www.ohchr.org/en/professionalinterest/pages/crc.aspx
- Rider, G.N., McMorris, B.J., Gower, A.L., Coleman, E., Eisenberg, M.E. (2018). Health and care utilization of transgender and gender nonconforming youth: a population-based study. Pediatrics, 141(3).
- OHCHR (2018). Regulations regarding eligibility for the female classification (athletes with differences of sex development) (OL OTH 62/2018).Retrieved on June 27, 2019 from: https://www.ohchr.org/Documents/Issues/Health/Letter_IAAF_Sept2018.pdf
- IAAF (2019). About the IAAF. Retrieved on June 14, 2019 from: https://www.iaaf.org/about-iaaf; IOC (2019). Our Vision. Retrieved on June 14, 2019 from: https://www.olympic.org/careers-at-the-ioc/life