*Bridget Whan Tong
November 14, 2016
In the Rio Olympics, Caster Semenya, a South African runner, won the women’s 800 meters in a stunning 1:55.28. However, her hard-fought victory was heavily criticized because of one thing she could not control: hyperandrogenism, a condition that naturally causes an individual to produce extraordinarily high levels of hormones. Back in 2009, Semenya was not allowed to compete in the 800 meters at the World Track and Field Championships and had to submit to sex tests. The criticism surrounding her accomplishments centered on questions of the competition’s fairness and highlighted traditional arguments used against transgender (hereafter “trans”) athletes’ participation in sports. Trans athletes and athletes with naturally-occurring hormonal imbalances are criticized for having an “unfair advantage” over their competitors; however, scientific studies have debunked such suspicions, purporting trans women, as a result of hormone therapy in transitioning, “experience a decrease in muscle mass, bone density and other physical characteristics” – qualities considered “key components of athleticism.” Further, higher testosterone levels in men or women have not conclusively correlated with athletic success or consequent advantages.
History of Sex-Testing and IOC’s 2015 Guidelines for Sex Reassignment and Hyperandrogenism
In the past, the International Olympic Committee (IOC) has required that trans athletes or athletes with naturally-occurring hormonal imbalances (such as hyperandrogenism) submit to embarrassing sex tests. Such tests included genital checks and chromosome tests – at one time, even handing out “femininity card[s]” to prove an athlete’s sex. In 2014, Dutee Chand, a female athlete with hyperandrogenism, challenged the International Association of Athletic Federations (IAFF) in order to compete in the Olympics despite her high testosterone levels. Chand was subjected to extensive sex-tests because the IAFF determined her physique to be too masculine. The IAFF then barred her from further competition when her testosterone levels came back too high. The following year, the Court of Arbitration for Sport (CAS) determined the IAFF’s hyperandrogenism rules to be invalid and discontinued the rules for two years. In the absence of any evidence from the IAFF that hyperandrogenic athletes have any competitive edge, these rules will be dissolved at the end of these two years.
Against this backdrop, the IOC released guidelines in 2015 to “ensure insofar as possible that transgender athletes are not excluded from the opportunity to participate in sporting competition.” Transgender male athletes can compete in male events “without restriction.” Transgender female athletes, on the other hand, are only eligible to compete if the athlete (1) claims female gender identity, (2) has testosterone levels below 10 nmol/L for one year before competition, (3) maintains acceptable testosterone levels throughout competition, and (4) submits to testing to ensure compliance.
Regarding female athletes with hyperandrogenism, the IOC proposed rules that still were relatively archaic, despite noting their goals to protect women athletes, ensure fair competition, and avoid discriminatory practices by allowing female athletes with hyperandrogenism to compete in male competition if ineligible to compete in female events. The 2015 guidelines notably did not eliminate testosterone tests for female athletes with hyperandrogenism.
True Progress for Female Athletes with Hyperandrogenism?
The IOC’s 2015 guidelines are no victory for female athletes with hyperandrogenism. Female athletes are subject to scrutiny if their physical appearances are simply not considered feminine enough. Additionally, it remains unclear whether female athletes with hyperandrogenism will still have to undergo genital examinations after their testosterone levels are determined to be too high. In trying to avoid discrimination against female athletes with hyperandrogenism by allowing these individuals to compete with men, some athletes opine the IOC sticks firmly to the traditional gender binary, thereby discriminating, ostracizing, and humiliating these athletes. Further, this alternative solution of having hyperandrogenic females compete in male events is problematic in sports that are exclusive to females, such as synchronized swimming and certain gymnastic routines, because it is unclear whether hyperandrogenic females will simply be disqualified from competition or will actually be allowed to compete against their fellow female competitors in these female-only events.
In an arena where the playing field may never be truly, universally fair, the question still remains whether trans and hyperandrogenic athletes should still submit to invasive sex tests or be restricted to ‘playing with the boys.’ With the CAS ruling regarding the IAFF’s hyperandrogenic rules, it seems more likely and reasonable that hyperandrogenic athletes should not have to endure such testing and ostracism because of substantial concerns regarding discrimination and privacy in addition to a lack of scientific evidence to support cries of unfair competition.
 Eric Goodman, Caster Semenya Wins 800m in Convincing Fashion, NBC Olympics (Aug. 20, 2016), http://www.nbcolympics.com/news/caster-semenya-wins-800m-convincing-fashion (noting Semenya’s 800m time, a national record for her home country of South Africa).
 See Jeré Longman, Understanding the Controversy over Caster Semenya, N. Y. Times (Aug. 18, 2016), http://www.nytimes.com/2016/08/20/sports/caster-semenya-800-meters.html (summarizing controversy and criticism following Caster Semenya’s victory in Rio); see also Hyperandrogenism Explained and What it Means for Athletics, USA Today (Aug. 2, 2016), http://www.usatoday.com/story/sports/olympics/2016/08/02/hyperandrogenism-explained-and-what-it-means-for-athletics/87944968/ (explaining the condition of hyperandrogenism).
 See Longman, supra note 2 (describing Semenya’s journey and difficulties as a female athlete with hyperandrogenism). For a discussion of sex testing in the Olympics, see infra notes 7–13 and accompanying text.
 See id. (highlighting key arguments against trans athletes and athletes with hyperandrogenism to compete with athletes of sex they are transitioning to or were born into respectively due to variable levels of testosterone).
 See Steven Petrow, Do Transgender Athletes Have an Unfair Advantage at the Olympics?,Wash. Post (Aug. 8, 2016), https://www.washingtonpost.com/lifestyle/style/do-transgender-athletes-have-an-unfair-advantage-at-the-olympics/2016/08/05/08169676-5b50-11e6-9aee-8075993d73a2_story.html (citing Joanna Harper, Race Times for Transgender Athletes, 6 J. of Sporting Cultures and Identities 1 (2015)) (noting arguments that trans athletes have an unfair advantage over competition because of high levels of testosterone).
 See Elizabeth M. Ziegler & Tamara Isadora Huntley, “It Got Too Tough to Not Be Me”: Accommodating Transgender Athletes in Sport, 39 J.C. & U.L. 467, 476 (2013) (describing “even though there is evidence of varying levels of hormones in transitioned individuals, there is a total lack of scientific data concerning whether transitioned athletes actually outperform naturally-born men and women on the playing field”); Longman, supra note 2 (noting “science has not conclusively shown that elevated testosterone provides women with more of a significant competitive edge than factors like nutrition, access to coaching and training facilities, and other genetic and biological variations”).
 See Ruth Padawer, The Humiliating Practice of Sex-Testing Female Athletes, New York Times (June 28, 2016), http://www.nytimes.com/2016/07/03/magazine/the-humiliating-practice-of-sex-testing-female-athletes.html?_r=0 (describing sex tests conducted in several cases, including Stella Walsh, Helen Stephens, Ewa Klobukowska, Maria Patiño, Santhi Soundarajan).
 See id. (relaying process Veronica Brenner, a silver medalist from Canada, had to endure to receive her “femininity card”). See also Ziegler & Huntley, supra note 6 at 476-483 (recalling history of hyperandrogenic female athletes and trans athletes undergoing testing); see Jaime Schultz, Some Rio Olympians Have Excess Testosterone: Should We Sex-Test Female Athletes?, Medical Daily (Aug. 16, 2016) (questioning “ethics, validity, and reliability of the [sex] tests,” despite anonymity).
 See Juliet Macur, Fighting for the Body She Was Born With, N. Y. Times (Oct. 6, 2014), http://www.nytimes.com/2014/10/07/sports/sprinter-dutee-chand-fights-ban-over-her-testosterone-level.html (detailing Chand’s fight against IAFF to compete despite her testosterone levels).
 See id. (recalling CAS’ suspending of testosterone policy for two years because the Court was “unable to conclude that hyperandrogenic female athletes may benefit from such a significant performance advantage that it is necessary to exclude them from competing in the female category”).
 IOC Consensus Meeting on Sex Reassignment and Hyperandrogenism, Int’l Olympic Committee (2015), available at https://stillmed.olympic.org/Documents/Commissions_PDFfiles/Medical_commission/2015-11_ioc_consensus_meeting_on_sex_reassignment_and_hyperandrogenism-en.pdf (outlining IOC’s guidelines for trans athletes).
 See Tom Fordyce, Rio Olympics 2016: Caster Semenya’s History-Making Could Spell the End, BBC (Aug. 16, 2016), http://www.bbc.com/sport/olympics/37102204 (detailing how, despite Semenya’s birth as a girl, her sex was called into question due to “physical characteristics typically associated with both men and women”).
 See Padawer, supra note 7 (quoting Katrina Karkazis, a bioethicist from Stanford, who claims “if an athlete’s androgen test shows she has high testosterone, she must undergo the same gynecological exam that has existed for decades”).
They say the policy is not for testing gender – but saying that a hyperandrogenic woman can compete as a man, not a woman, inherently means they think she really is a man, not a woman. It brings back the debate around an athlete’s gender, publicly humiliating her in the process.
Id. (quoting Payoshni Mitra) (emphasis in original).
 See Louise Radnofsky, Should Women-Only Olympics Sports Be Open to Men?, Wall St. J. (Aug. 20, 2016), http://www.wsj.com/articles/should-women-only-sports-at-the-olympics-be-open-to-men-1471717704 (recognizing few Olympic sports that do not have male counterpart events and contemplating opening women-only sports such as “rhythmic gymnastics and synchronized swimming” to men).
People come in all shapes and sizes…We don’t disqualify Michael Phelps for having super-long arms; that’s just a competitive advantage he has in his sport. We don’t regulate height in the WNBA or NBA…For as long as sports have been around, there have been people who have had advantages over others. A universal playing field does not exist.
Id. (quoting Cyd Zeigler).
I was born a woman, reared up as a woman, I identify as a woman and I believe I should be allowed to compete with other women, many of whom are either taller than me or come from more privileged backgrounds, things that most certainly give them an edge over me.
Id. (quoting Chand on discrimination). See also Ziegler & Huntley, supra note 6, at 501–02 (exploring discrimination issues under the Equal Protection Clause for transgender individuals, particularly noting Flores v. Morgan Hill Unified Sch. Dist. for “legal protection available to transgender student-athletes”).