WSLR July Editorial Insight: Illogical science
The International Olympic Committee (IOC) has a difficult task. When it was formed back in 1894, founder Pierre Baron de Coubertin didn't have to worry about troublesome things such as human rights and sex discrimination. Such concepts were in their infancy, if they existed at all. Women weren't allowed to compete in the inaugural modern Olympics in Athens in 1896, gaining representation in tennis and equestrian events only, in Paris 1900. Since then, the world has changed, but sport continues to split events into 'men's' and 'women's' categories. It has generally been agreed that determining whether someone is female by examining their genitalia is not acceptable - and not always accurate - yet the IOC is still required to split men and women in the interests of 'fairness' and sporting history.
How should it do this? The IOC has come up with its Regulations on Female Hyperandrogenism for the Games of the XXX Olympiad in London 2012 on 22 June, after the Caster Semenya case forced it to rewrite its rules on eligibility of female athletes. It followed the logic of the International Association of Athletics Federations (IAAF), which told World Sports Law Report "if we don't have rules on this, we will also face legal challenge from other female athletes" when publishing its own Regulations on 1 May.
When writing about this before, I have rightly been warned that dealing with hyperandrogenism is a complex scientific issue. It is, but the logic behind the science isn't complicated, and needs to be carefully considered by sports organisations before following the IAAF and IOC's lead. The IOC is at pains to stress 'nothing in these Regulations is intended to make any determination of sex', so it is taken as given that the IOC accepts that the athlete being investigated is female. Without going into too much detail, the Regulations allow the IOC to examine whether testosterone levels in serum fall within the 'male range' and if so, ban a female athlete from London 2012 if this allows her a competitive advantage.
Stripping away the science, the Regulations allow the IOC to ban a female athlete who has done nothing wrong, but has an advantage due to her genetic make up. It also attaches the added stigma that she is 'male' by comparing her testosterone levels to what the IOC considers to be a 'male' range of testosterone. The athlete has no recompense, since she cannot adjust her genetic make up. She is banned for simply being who she is.
Using this logic, perhaps we should also ban Michael Phelps, Usain Bolt and others? This article explains the genetic advantages that Phelps has over us mere mortals in the pool. This article explains why Bolt can break the 100m world record while I run more like a crazed swan. Bolt also has leptin and insulin insensitivity, which means he can maintain low body fat without his hormonal expression being compromised (as compared to a regular person), which means less weight to carry.
You might have noticed that I have used 'she' and 'her' when referring to the athlete subject to the IOC's Hyperandrogenism Regulations. This is because they apply exclusively to females. The IOC doesn't ban a male athlete with testosterone levels considered above the 'normal' male range, or declare a male with low levels as falling within the 'female' range and forcing him to compete as a female. This may sound crazy, but it follows the same logic employed.
However, the IOC may have been clever enough to avoid legal challenge. By inserting the caveat mentioned earlier that they have nothing to do with determining sex, the IOC may be able to argue that the Regulations do not fall foul of Article 14 of the European Convention on Human Rights. A charge that they fall foul of Articles 23, 27 and 29 of the Universal Declaration on Human Rights will be harder to defend, but possible. If these Regulations are used at London 2012, it will take a brave athlete to cope with the embarrassment and stigma of being banned to challenge them in the courts. Good luck!