NATURE’S GIFT OR AN EVIL?
Every year women in sports are hindered to participate in various sporting events because of HYPERANDROGENISM. Hyperandrogenism is a physiological medical condition in women, characterized by production of high levels of androgens, which maintains and develops male characteristics. The most common androgen is testosterone, which the sports fraternity has declared to give one additional strength and “unfair advantage”. Hyperandrogenism is said to create an imbalance in the scales of fairness because of the added strength that is a consequence of the condition. However, this advantage is not synthetic, but rather natural.
It all started with two famous cases of hyper androgenic females who were restricted to participate in any national and international games. They were not only told to conduct anti-doping test but also gender test. However, conducting a gender test translates to questioning, not an athlete’s, but a female athlete’s extraordinary improvement in performance. This was attributed to a woman’s perceived inabilities in the world of muscle, and was hence, very derogatory.
Naturally, an athlete’s performance will be affected when asked to take medication to reduce a particular hormone, but that concern does not bother the IAAF or Sports Authority of India. The fight of female athletes against these discriminatory rules is as old as time; some of these women are successful in challenging the rules and garnering support, but some, like Pratima Gaonkar, meet fateful ends.
Ross Tucker, a professor of exercise physiology at the University of the Free State in South Africa, said in an Associated Press interview, “I’ve seen comments from people in response to her performances where they very quickly call her ‘he’ and ‘him.’ And some of them are even crueler than that. They call Caster Semenya ‘it,’ as though she’s some kind of freakish monster.” The way these athletes are treated is extremely cruel and it effects them mentally.
These women are neither given an option to exercise their Right to Profession nor the Right of Choice. Their Right to Privacy also is infringed by exposing the results of their tests which forces them to go through mental agony. In lieu of the constitutionality of the existing procedure of medical testing for search and seizure of hyperandrogenic females, it needs to be examined as it violates Right to Privacy.But what about males who have hyperandrogenism? Well neither IAAF nor SAI question it. Because they feel that only female can cause competitive advantage and not males. The males whose hormones are above the limit are not asked to reduce it.
The treatment of Semenya and other female athletes with hyperandrogenism by the IAAF and International Olympic Committee (IOC) is sad but not surprising. There is a long history of mistreatment of female athletes in the Games.
Gender testing in sports is apt to identify who a biological female or male is, but using that test to prove one’s gender is where the trouble begins. This is where elements of racism and sexism surface. In the case of Semenya, gender of the female athlete is brought under question because of them having “man-like physical features”; this comment has been passed on female athletes of developing nations many a time. Caster Semenya challenged these regulations arguing that they were ‘unfairly’ discriminating against females and especially those with ‘certain physiological traits’ because they were not scientifically based, they are ‘unnecessary to ensure fair competition within the female classification’ and would likely ‘cause grave, unjustified and irreparable harm’.
Closer home, in 2014, Dutee Chand had to go through the whole process of gender testing because of her “quick improvements” and “pronounced muscles”; The IAAF put an indefinite ban on her taking part in athletics competitions. The case revolved around World Athletics’ DSD Regulations (difference of sex development) that required athletes competing in the female category in certain events (400m to one mile) at an international level to keep their testosterone levels below five nmol/L. The ban was subsequently revoked when Chand appealed to the CAS, but the loss of time and mental agony created can never be reimbursed.
Hyperandrogenism is a condition that women have no control over, however they are made to pay the price for it. While Michael Phelps is lauded and celebrated for the genetic differences he has because of Marfans Syndrome, Caster Semenya is asked to prove her femininity because of her advanced hormones. Phelps has the added advantage of having long limbs which is a consequence of the syndrome and the low production of lactic acid in his body reduces fatigue, but the world sports community has labeled it as a gift. Hyperandrogenism in female athletes too is nothing short of a gift, but the sports fraternity’s decision to meddle with it has taken sexist hues. Phelps’ condition makes him biologically better equipped, while Semenya’s and Dutee Chand’s makes her a woman with an unfair advantage.
Hyperandrogenism is a natural-born condition, something female athletes like Semenya do not choose. This is not some loophole she has found to beat the system. She is just herself, a woman capable of incredible speeds.
Plus, as Jeré Longman of the New York Times pointed out earlier this month, “All Olympians have some exceptional traits. That is why they are elite athletes. A level playing field for everyone remains elusive, perhaps unattainable.”
Longman continued to point out how Kenyan and Ethiopian marathoners live and train at high altitude, naturally enhancing their oxygen-carrying capacity. Eero Mantyranta, a Finnish cross-country skier who won seven Olympic medals in the 1960s, including three golds, was found to have a genetic mutation that increased his hemoglobin level to about 50 percent higher than the average man’s.
NO MEANS OF PROPER LAW:
Moreover, the case of Castor Semanya and Dutee Chand was heard in front of an arbitrator and not a Judge is an evidence of how the whole issue was tilted towards sports law, and the human rights-based expertise was not sought for in the situation, even though an infringement on fundamental and human rights is predominant. A tribunal in this matter should be set up to deal with such sensitive issues which should be kept confidential.
The new rules of the IAAF policy treat men and women differently from one another without demonstrating an acceptable rationale supporting the regulation of androgens in women, but not men. This unequal treatment is the hallmark of discrimination based on sex”
A STEP AHEAD-LIGHT IN TIMES OF DARKNESS:
Forcing a woman to risk her whole career because of a rule that flirts with absurdity and sexism becomes a fight not only of the athlete but of the whole human society.
The United Nations Human Rights Council released a resolution condemning the morbid discrimination women face because of variations in sex characters. In the resolution, the UN called for Governments to make sure sport organizations “refrain from developing and enforcing policies and practices that force, coerce or otherwise pressure women and girl athletes into undergoing unnecessary, humiliating and harmful medical procedures and allow them to participate in all sporting events.”
In June 2020, the United Nations High Commissioner for Human Rights submitted a report to the United Nations Human Rights Council on the “Intersection of Race and Gender Discrimination in Sport”. The report draws a detailed picture of how human rights in the Semenya case have been violated and also elaborates on the inherent problem of addressing human rights issues in alternative dispute resolution mechanisms favored by the sport governing bodies. However, despite an in-depth discussion of Caster Semenya’s case at both the CAS and then the SFT, the question of human rights, a key concern and a fundamental pillar of the case, hasn’t been adequately answered yet!
In times to come all we can hope is for all sports governing bodies and countries including India to follow the resolution in order to end the discrimination against many more hyperandrogenic athletes like Caster Semenya, whose dreams and hard work are crushed by insensitivity and not let it go in vain.
JaimeSchultz, CasterSemenyaandthe“QuestionofToo”SexTestinginEliteWomen’sSportandtheIssueofAdvantage,Vol63, pp 228-243(2011).
 Castor Semanya and Dutee Chand.
Nihal Koshie,RisingStarWhoEndedHerLifeMuchbeforeDuteeChandChallengedtheRules,The Indian Express(9-9-2018).
 K.S. Puttaswamy and Ors vs.Union of IndiaMANU/SC/1044/2017
RuthPadawer,TheHumiliatingPracticeofSex-TestingFemaleAthletes,TheNewYorkTimes (28-6-2016) <https://www.nytimes.com/2016/07/03/magazine/the-humiliating- practice-of-sex-testing-female-athletes.html>.
Tanvi Kankaria, Hyperandrogenism, Ex Gratia Law Journal, (October 1, 2020), https://exgratialawjournal.in/journal/volume-1/vol1-issue2-oct2020/hyperandrogenism-by-tanvi-kankaria/.