The Modern American

Volume 6 | Issue 2 Article 5

2010 and the Myth of a Level Playing Field Erin E. Buzuvis Western New England College School of Law, [email protected]

Follow this and additional works at: http://digitalcommons.wcl.american.edu/tma Part of the Constitutional Law Commons, Science and Technology Commons, and the Sexuality and the Law Commons

Recommended Citation Buzuvis, Erin E. (2010) "Caster Semenya and the Myth of a Level Playing Field," The Modern American: Vol. 6: Iss. 2, Article 5. Available at: http://digitalcommons.wcl.american.edu/tma/vol6/iss2/5

This Article is brought to you for free and open access by the Washington College of Law Journals & Law Reviews at Digital Commons @ American University Washington College of Law. It has been accepted for inclusion in The odeM rn American by an authorized administrator of Digital Commons @ American University Washington College of Law. For more information, please contact [email protected]. Caster Semenya and the Myth of a Level Playing Field

Keywords gender, athletics, Caster Semenya, sex-segregated sports, Olympics

This article is available in The odeM rn American: http://digitalcommons.wcl.american.edu/tma/vol6/iss2/5 CASTER SEMENYA AND THE MYTH OF A LEVEL PLAYING FIELD By: Erin Buzuvis 1

In August of 2009, policies and and testosterone levels that are higher verification testing at the Olympic procedures to verify the sex of female (perhaps three times higher) than those level as well as within the IAAF. The athletes were called into question when of the average woman. In November justification for sex-verification testing South African runner Caster Semenya of 2009 the IAAF announced that incorporates two presumptions: won the 800 meter event of the World Semenya would not lose the gold medal first, that sex exists in a binary, and Championships in . Responding and prize money she won in Berlin.6 second, that fairness in sport requires to rumors of gender fraud, and fueled Shortly thereafter, the International a strict separation of the sexes. Once by Semenya’s speed, musculature, Olympic Committee (IOC) held a both of these presumptions are and deep voice, the International conference but was not successful in exposed as myths, it becomes clear Association of Athletics Federations producing guidelines to help governing that attempts to medically police the (IAAF) requested that Semenya bodies address the eligibility of athletes boundary between men’s and women’s submit to sex verification to confirm with “disorders of sex development.”7 sports are futile and unwarranted. her eligibility for the women’s division.2 The IAAF recently cleared As long as we continue to organize Some saw the suspicion cast on Semenya to run in future events.8 separate athletic contests for men and Semenya as the product of intersecting Still, the confidential nature of the women, athletes should be allowed and sexism, namely, Semenya’s decision, coupled with a failure to to participate in events consistent failure to conform to standards of repudiate current policy allowing for with their bona fide gender identity. white femininity and to stereotypes sex-verification testing on a case-by- about women’s inferior athleticism. case basis, holds open the possibility I. IOC Policy on Sex Testing: The scrutiny of Semenya’s personal that the IAAF could disqualify other History and Current Practice life is reportedly taking a heavy toll, athletes for failing a sex verification as evidenced by reports that she has test, even without accompanying The ancient gone into hiding due to the distress evidence or a charge that the athlete excluded women from both participation and embarrassment generated by the or her agents intentionally attempted and attendance, due to fear that their controversy. Underscoring concerns to deceive the sporting world as to presence would usurp the strength for Semenya’s emotional well- her sex. Similarly, the IOC allows of Hercules, the hero and warrior in being are comparisons of Semenya whose honor the Games were held.10 to , an Indian As long as we continue to organize Some historians consider enforced runner who was stripped of her separate athletic contests for men and nudity at the ancient games to be the silver medal in the 2006 Asia Games women, athletes should be allowed to first Olympic sex verification policy.11 after failing a sex test and was later participate in events consistent with their Female athletes have been rumored to have attempted suicide.3 bona fide gender identity. allowed to attend and participate in The IAAF did not publicize the Olympic Games for most of the its sex-verification testing methods, but sex-verification testing in response to modern Olympic era, but they have according to its policy, an athlete whose charges or suspicion that an athlete been subject to sex scrutiny throughout sex is challenged or raises suspicion can competing in a women’s sport or this time. During the Cold War, the be asked to submit to a multidimensional event is not physically eligible to do so. IOC required female athletes to submit medical evaluation conducted by a Most recently, the Chinese organizers their bodies to visual inspections by panel comprised of a gynecologist, of the 2008 summer Olympics in medical officials. In 1968, the IOC endocrinologist, psychologist, internal boasted famously that a state- abandoned the “nude parades” in medicine specialist, and an “expert on of-the-art sex verification laboratory favor of a less invasive and humiliating gender/transgender issues.”4 While would be available throughout the chromosomal test on cells swabbed the IAAF will not officially disclose games to run expedient sex tests from the lining of the athlete’s mouth.12 the results of these tests,5 unconfirmed on “suspicious looking women.”9 Until 1998, and subject to limited reports leaked to the media suggest The controversy surrounding exceptions, athletes were only allowed that Semenya has an condition Caster Semenya’s sex provides a useful to participate in women’s events if a related to the presence of internal testes touchstone for an analysis of sex- compulsory chromosomal sex testing 36 THE MODERN AMERICAN confirmed an XX genotype.13 Today, fact that she passed a visual inspection expensive, unreliable, and an affront such testing is not mandatory, but the year before.21 Twenty years later, to the dignity of female athletes, by Olympic organizing committees (such another runner, Maria Jose Martinez voting to abandon it. The IOC was as in Beijing) and athletic federations Patino, discovered for the first time also responding to the argument that (such as the IAAF) may conduct during a sex verification test that existing drug testing procedures, testing on a case-by-case basis. she lacked a second X chromosome including monitored urine sample The IOC has justified sex typical of most women.22 Patino, requirements, were effective protection verification policies as necessary against intentional fraud. However, in to prevent men from cheating by abandoning the compulsory sex test, disguising themselves as women and the laboratory’s existence underscores the IOC endorsed a policy that, like entering women’s athletic events.14 the fact that IOC policy would have the IAAF’s policy, permits “suspicion- Yet there is only one known instance permitted sex-verification testing to occur based testing” on a case-by-case in Olympic history of this actually at the Olympic Games. basis.30 Organizers of Olympic happening. In 1936, “Dora” Ratjen Games in Beijing were responding of Germany finished fourth in the to that policy when they established women’s high jump.15 Twenty years who was encouraged to fake an injury a laboratory to verify the sex of later, the athlete admitted that he was and withdraw quietly, was not a man suspicious-looking women at the 2008 actually Hermann Ratjen, a former despite her XY chromosomes.23 Summer Games. Recognizing the Hitler Youth member whom the Nazis She had Androgen Insensitivity possibility that athletes could present had forced to compete as a woman.16 Syndrome (AIS), an inability to process with “ambiguous gender orientation,” During the Cold War era, in which the testosterone, effectively neutralizing the Chinese organizers planned count became politically the development in utero of male sex comprehensive evaluations of sexual significant, suspicions of gender fraud characteristics typically triggered by the hormones, chromosomes and genes as by Communist countries—such as Y chromosome.24 Patino challenged well as clinical observation, should the suspicions surrounding masculine- the IAAF’s decision and was reinstated need arise.31 While no such testing was looking Soviet throwers Tashana and two years later.25 By then, Patino was conducted, the laboratory’s existence Irina Press—motivated the IOC to past her athletic prime, but due to her underscores the fact that IOC policy impose sex verification testing.17 The efforts, the IAAF’s sex-verification would have permitted sex-verification testing methods, which merely looked policy today includes AIS on its list testing to occur at the Olympic Games. for evidence of the second inactive X of conditions that will not preclude chromosome, would not have been athletes from competing in women’s II. The Myth of Sex-Verification effective at detecting other kinds of sport.26 In the 1990s, the IOC updated Testing cheating, such as doping female athletes its sex verification methods and with high doses of testosterone. This adopted a Polymerase Chain Reaction Even in the comprehensive inconsistency casts doubt on the (PCR) process designed to test for form anticipated by Beijing Olympic IOC’s stated objective, to police fraud, the presence of a Y chromosome organizers and used in the case of Caster and suggests instead an objective of rather than the absence of a second Semenya, sex verification is problematic policing gender—that is, replicating X chromosome.27 Even PCR testing for two main reasons. The first reason hegemonic femininity by narrowly resulted in many false positives. Eight is that sex verification supposes that defining the category “woman.”18 of the over 3,000 female athletes at every athlete can be assigned to one Sex-verification testing has also the Summer Games in Atlanta tested of two sex categories and ignores affected women with chromosomal positive for the Y chromosome but were the reality of gender multiplicity. As anomalies that likely or demonstrably permitted to compete either because suggested by the brief overview of produce no competitive advantage. further testing revealed AIS or another the history of sex-verification testing The first athlete to fail a sex-verification condition that inhibits the masculinizing provided here, scientific inquiry into test was a Polish sprinter named Ewa function of testosterone.28 sex is often inconclusive. Sex cannot Klobukowska.19 In 1967, she was In 1999, the IOC Executive be distilled to a single, determinable banned from sports and stripped of her Board responded to mounting factor. Many biological and social Olympic medals after genetic testing criticism, including criticism by the factors—including chromosomes, revealed anomalous sex chromosomes American Medical Association and hormones, genitals, gender identity in some cells (likely an XX/XY other professional associations,29 that and gender expression—contribute mosaicism20)—notwithstanding the compulsory sex-verification testing was to our interpretation of whether an

SPRING 2011 37 individual is male or female. In most governing bodies impose a binary underinclusive because it ignores factors people, these factors appear consistent: structure onto a reality in which sex other than sex that are more likely to sex chromosomes that are either exists on a continuum.34 The IOC’s create an uneven field for competition. XX or XY will trigger hormones in recent policy allowing for participation My first point, that sex utero, and again in puberty, that cause by transsexual athletes, while a segregation is applied more than fairness genitalia and other sex-related physical progressive step toward including requires, is another way of saying that features to develop in the “typical” sex, or more precisely, male-ness, is way. Most individuals identify with it is underinclusive because it ignores an imperfect proxy for competitive and experience themselves to be the advantage in sport.37 Sorting athletes factors other than sex that are more likely sex that matches those chromosomes, by sex does not necessarily sort them hormones, and physical features. to create an uneven field for competition. by physical characteristics that are However, variations at the considered relevant to sport. Owing chromosomal, hormonal, physical, to the wide variation of physical and psychological levels preclude athletes who would have otherwise been characteristics within sex categories conclusive assignment of “male” and excluded from women’s events due to (a term I use loosely, in light of my “female” labels in all cases. As Ewa their Y chromosomes, still operates criticism above), some of the athletes Kloubowska’s case demonstrates, on and underscores the false premise in the female group will be similar in sex chromosomes can defy the usual that sex is a binary.35 By requiring size, shape, and musculature to those XX or XY categories. Individuals transsexual athletes to have undergone in the male group. An approach more may present with XO, XXY, XYY, sex reassignment surgery, completed at narrowly tailored to producing a level XXX or a mosaic condition in which least two years of hormone treatment, playing field would sort athletes by different cells in the same individual’s and obtained legal recognition of the physical characteristics, much the body have different sex chromosomes. new sex, the policy only allows for same way sports like wrestling group Conditions like AIS produce a body participation by those gender non- athletes by weight. Even this approach, that might be chromosomally male normative individuals most able and however, would not necessarily produce but hormonally female, while other willing to conform to the gender a level playing field, as correlations conditions like congenital adrenal binary by placing themselves through between physical characteristics hyperplasia cause individuals with surgical, medical, and legal means, and athletic performance, thought XX chromosomes to have masculine firmly on one side of the continuum or widely assumed, are largely illusory. genitalia. Other conditions affecting the other.36 It excludes any individual Research about competitive physical development produce whose physical sex or gender identity advantage and race illustrates this internal or external genitalia that places them in the gray area in between. point. When scientists demonstrated defy classification as entirely male or In sum, “sex verification” that blacks generally have narrower female; indeed, for one out of every testing is a myth. It operates on, pelvic girdles than whites, many people 1500 to 2000 births, an expert in sex and harmfully reinforces, the false interpreted this as support for widely differentiation must be called in to premise that medical testing can held assumptions about the competitive interpret atypical presentation of determine sex as either male or female. advantage of black sprinters. Yet there the baby’s gender.32 Transsexual and is no evidence that narrower pelvic transgender individuals, who have III. The Myth of the Level Playing girdles are, independent of race, a a gender identity that differs from Field predictor of speed. As one physiologist their physical sex, also challenge told Sports Illustrated in 1997, “there’s the assumption that sex and gender The second reason that sex not a single characteristic that is unique indicators are always consistent. Based verification is problematic is that and always present and responsible on variations such as these, Brown it places undue emphasis on sex- for [athletic] performance.”38 He University scientist and author Anne segregation as a means for achieving was discussing generalizations about Fausto-Sterling dismiss Euro-American fairness. The idea that fairness physical differences based on race, but culture’s rigid insistence on only two requires the strict separation of men’s the same point—that physical traits do sexes, stating, “The body’s sex is simply and women’s sports is simultaneously not predict performance—applies to too complex. There is no either/or. overinclusive and underinclusive. It sex differences as well. The absence of Rather, there are shades of difference.”33 is overinclusive in that it applies even a perfect correlation between sex and By permitting sex-verification in situations where strict separation athletic performance explains examples testing, the IOC and other athletic does not produce fairness. It is of men competing against women and

38 THE MODERN AMERICAN losing—such as when Hitler Youth and long arms, that could provide a reconceptualizing sports to allow Hermann Ratjen finished fourth in competitive advantage in that sport.41 for more integrated competitions the women’s high jump, or when The IAAF may determine that Caster that group athletes by physical tennis player Bobby Riggs famously Semenya has high testosterone levels characteristics other than sex. Weight lost to Billy Jean King. The absence resulting from an intersex condition, classes in wrestling, handicapping in of a perfect correlation between sex but it is possible—if not likely—that golf, grouping of common times in and athletic performance also explains her opponents have physical features road racing are examples of how similar why the existing gender gap in athletic or testosterone levels that are outside principles are already being applied. performance is demonstrably waning as the typical range of most women. In this new paradigm, sex verification female athletes begin to overcome their If those opponents conform to the would be unnecessary because an historical exclusion and marginalization arbitrary, heteronormative and white athlete’s sex would be irrelevant to from sports. One Oxford University standards of femininity, they are not determining the field of competition study predicts that, at the rate women’s “suspicious,” and they are not tested. most appropriate for each competitor. speed is improving, women To underscore even further the By abandoning the constraints of the will be outrunning men at certain shortcomings of sex-segregation as a sex binary, this paradigm would reflect track events sometime after 2064.39 means of ensuring fairness, consider a more intellectually honest approach Thus, separating men and that the so-called level playing field to sport and would be inclusive of women is neither a perfect way, nor the accommodates athletes not just with intersex and transgender athletes. best way, to ensure that athletes only natural physical advantages, but social While such a paradigm shift may be a compete against those with comparable and environmental advantages as well.42 valid long term goal, sex-segregation physical features and athletic ability. It of sports is not going away in the also fails to ensure fairness because short term. I simply argue here the idea that segregation of athletes disparities other than sex-related that, as an intermediate step, the physical differences tilt the playing field. by sex produces a level playing field is IOC should prohibit sex-verification In the sporting world, nothing short of myth testing. The concept of testing for “fairness” is defined as universal sex defies reality in which sex is a adherence to the same rules. It is unfair construct—a reality in which our to give a runner a head start, break Some athletes receive coaching at an interpretation of a person is based on the rules of play, or gain a physical early age, some have financial advantage a number of factors (genes, hormones, advantage through such unnatural due to class or affiliation with sponsors, anatomy, identity, expression) that may means as doping. While unnaturally and some have technologically superior or may not consistently conform to obtained physical advantages may run equipment such as shark skin swimsuits the concept of male and female. If afoul of fairness, fairness requires no or clap-skates.43 In some sports, players sport is to continue to rely on the myth such categorical limitation on naturally are advantaged or disadvantaged of discernable sex categories, it must obtained physical advantages. Saying by changes in the weather44 or the acknowledge it as such, rather than that no one can use natural advantage position of the sun. Even some insist that categorization is possible or is antithetical to sport. The average physical advantages obtained by that categorization is determinative of individual does not become a world- unnatural means,45 such as laser eye a level playing field. In short, the IOC class or Olympic athlete; indeed, it has surgery or ligament replacement, are and other athletic governing bodies been said that “elite sport selects for permissible. These variables are likely must shed the overly rigid application physiological outliers whose genetic to enhance an athlete’s performance in of a sex binary in favor of a more potential for excellence has been the same way that sex-related variables flexible approach that allows athletes realised through fortuitous interaction can. Thus, the idea that segregation to participate in the category that is with environmental and cultural of athletes by sex produces a level consistent with, or at least most closely factors.”40 Yet variation due to non- playing field is nothing short of myth. approximates, their gender identity. sex-related conditions is not challenged The IOC could implement a as beyond the bounds of fair play. For IV. Proposal: Prohibit Sex flexible approach by prohibiting sex example, the sport of volleyball does Verification Testing verification testing and ensuring that not exclude athletes with Marfan’s the only participants disqualified from syndrome, even though individuals I am not proposing, at least women’s events are those intentionally with that condition have physical not here, that the IOC should abandon committing gender fraud. Under this characteristics, including tallness sex-segregated athletics. I do support approach, an intersex athlete like Caster

SPRING 2011 39 Semenya would be eligible for women’s create a level playing field. Rather, it predominance normally seen in a track events because her female gender recognizes that sex-verification and the male.”). identity is not in dispute. Under this level playing field are illusory goals,49 5 Jeré Longman, South African Runner’s proposal, the only sex-related challenges and in so doing avoids many of the Sex-Verification Result Won’t Be Public, that the IOC or other governing bodies problems that result from the IOC’s N.Y. TIMES, Nov. 19, 2009. would consider would be those rooted current policy of suspicion-based 6 See id. (acknowledging that it is rare in evidence tending to show that an sex-verification testing. As Caster to have disputes over an athlete’s sex, athlete’s self-selection into women’s Semenya’s case shows, the policy is rife where Semenya’s sport was unprepared competition is not consistent with with abuse and selective application. to handle cases in which athletes have the life she leads outside of sport.46 Moreover, considering the myth of the both male and female characteristics). This intent-based standard should be level playing field created by numerous 7 Meg Handley, IOC Grapples with Sex interpreted to exclude competitors like personal advantages that all athletes Testing, TIME MAG. WORLD, Feb. 11, Hermann Ratjen who are manipulated bring to the starting line, sex-verification 2010. The conference reportedly or forced to cheat by a government. testing inflicts harm on the athlete’s produced only recommendations An intent-based standard should not dignity, privacy and personal life that are that the IOC support medical centers be used to exclude transsexual athletes far disproportionate to any unfairness that would “treat” athletes with DSD who comply with the IOC’s policy on that is being targeted by examining sex. with hormone therapy and surgery, a transgender athlete participation; such recommendation that pathologizes competitors should have an absolute sexual variation and raises both defense to charges that their gender Endnotes practical and ethical questions about identity at the time of competition is the idea of reducing an athlete’s natural inconsistent with their gender expression hormone level in an attempt to level earlier in their lives or athletic careers. 1 Erin E. Buzuvis is an Associate and already-variable playing field. Id. 8 Currently, sex-verification Professor at Western New England See Assoc. Press, Semenya Sets Comeback, policies treat an athlete’s eligibility based College School of Law. A version N.Y. TIMES, July 7, 2010 (reporting on sex similarly to an athlete’s eligibility of this paper was presented at the that after being cleared by the IAAF, based on involvement with banned University of Baltimore School of Semenya will compete in a European substances. In both contexts, eligibility Law Amateur Sports Law Symposium meet before making her return to the is determined by medical evidence, with on October 29, 2009. The author African championships in Kenya). 9 no consideration given to whether the thanks Ann Gillard, Art Leavens, and See Jane Macartney & Hattie Garlick, 47 athlete intended to cheat. However, Kris Newhall for helpful comments on Girls Will Be Girls at the Beijing Olympics- the strict liability that applies in doping earlier drafts. Sex Tests Will Prove It, TIMES (U.K.), cases is not warranted in cases where 2 Simon Hart, Caster Semenya 800 m Gold July 29, 2008 (“Suspect athletes will sex is in dispute. One important Overshadowed by Gender Controversy, DAILY be evaluated from their external difference is that doping policies target TELEGRAPH (U.K.), Aug. 19, 2009. appearance by experts. They will then individual and categorical substances 3 See Nilanjana Bhowmick & Jyoti undergo four tests, including blood “because of their potential to enhance Thottam, Gender and Athletics: ’s tests, to examine their sex hormones, 48 performance.” Sex-verification Own Caster Semenya, TIME MAG. WORLD, genes and chromosomes for sex policies, however, are not so narrowly Sept. 1, 2009 (stating that shortly after determination” because there’s the need tailored. The risk of unfairness that receiving the silver medal in the 800 for a “full battery of examinations,” strict liability poses in the context of meter at the Asian Championship, where chromosome tests might be sex, compared to the risk in the context Soundarajan was asked to undergo a insufficient and external checks alone of doping, is not as strongly outweighed sex test, where she was later diagnosed could result in negative reactions from by a benefit to the field of competition. with androgen insensitivity syndrome athletes). 10 Moreover, the risk of unfairness posed (AIS), a condition in which a “male Laura A. Wackwitz, Verifying the by a strict liability approach is arguably is resistant to androgens, the male sex Myth: Olympic Sex Testing and the Category stronger when the ground for exclusion hormones”). “Woman,” 26 WOMEN’S STUD. INT’L F. is a naturally occurring chromosomal 4 INT’L ASS’N OF ATHLETICS FED’N, 553, 553 (2003). 11 or hormonal variation than when the IAAF POLICY ON G ENDER V ERIFICATION Id. 12 ground for exclusion is an exogenously- (2006) (“The crux of the matter is that See Robert Ritchie et al., Intersex obtained competitive advantage. the athlete should not be enjoying and the Olympic Games, 101 J. OF THE This proposal does not seek to the benefits of natural testosterone ROYAL SOC’Y OF MED. 395, 396 (2008) 40 THE MODERN AMERICAN (concluding that prior to the 1966 19 See Ritchie et al., supra note 12, at (explaining that the IOC “sought to European athletics championship, 397 (asserting that while Klobukowska improve and standardize laboratory- “compulsory gender verification in the failed the Barr body test after it was based testing,” where recent studies on form of a gynaecological examination” first introduced, the test itself created chromosomal analysis has shown that was used where athletes had to stand various problems because it confirmed the absence of the SRY gene was the “naked in front of a committee and or refuted an individual’s sex based key element in determining a person’s were subjected to inspection of their solely on a chromosomal test, when sex). external gentalia”); Wackwitz, supra such a test “fails to take account of 28 Genel, supra note 18; Reeser, supra note 10, at 555. the complexities of sex determination note 24, at 696. 13 Wackwitz, supra note 10, at 553-54. itself ”). 29 Genel, supra note 18. 14 Haley K. Olsen-Acre, The Use of 20 Id. 30 See Cavanagh & Sykes, supra note 15, at Drug Testing to Police Sex and Gender in the 21 See Wackwitz, supra note 10, at 76 (holding that if the IOC questioned Olympic Games, 13 MICH. J. GENDER & 556 (acknowledging that protests the sex of an athlete it reserved the L. 207, 212 n.22 (2006). against sex testing have stated that right to conduct a sex test). 15 Sheila L. Cavanagh & Heather Sykes, it is neither a test based on physical 31 Wang Wei & Zhang Ming’ai, Sex Transsexual Bodies at the Olympics: The appearance nor chromosomal make- Testing Lab for Beijing Olympics, August International Olympic Committee’s Policy on up is completely determinative of 18, 2008, http://www.china.org.cn/ Transsexual Athletes at the 2004 Athens biological sex); see also Cheryl L. Cole, olympics/news/2008-08/18/content_ Summer Games, 12 BODY & SOC’Y 75, 83 One Chromosome Too Many? in THE 16263487.htm (stating that the sex of (2006). OLYMPICS AT THE MILLENNIUM: POWER, athletes with such “ambiguous gender 16Id. POLITICS, AND THE GAMES 128, 129 orientation” would be determined 17 Id.; see also Ritchie et al., supra note 12, (Kay Schaffer & Sidonie Smith, eds., by clinical observation, testing of at 396-97 (stating that when compulsory 2000) (discussing the “procedural shift the chromosomes and genes, and the gender verification was introduced, from the body’s surface to its interior,” presence of abnormal male hormone mandating female athletes to submit to where Klobukowska had one sex because “one single test is not sex testing by standing naked in front chromosome too many to be declared enough”). of a Committee, neither of the Press a woman for purposes of an athletic 32 See ANNE FAUSTO-STERLING, SEXING sisters took the examination and never competition). THE BODY: GENDER POLITICS AND appeared in an athletic competition 22 Wackwitz, supra note 10, at 556. THE CONSTRUCTION OF SEXUALITY 4- again). 23 Id. 5 (2000) (asserting that “labeling 18 Richards v. U.S. Tennis Ass’n, 400 24 J.C. Reeser, Gender Identity and Sport: Is someone a man or a woman is a social N.Y.S.2d 267, 272 (Sup. Ct. 1977) the Playing Field Level?, 39 BRIT. J. SPORTS decision”); see also Jennifer Finney (recognizing the inadequacy of the MED. 695, 696 (2005). 1 in 60,000 males Boylan, The XY Games, N.Y. TIMES, Barr Body test to test for femaleness); are affected by AIS. Id. Aug. 3, 2008 (acknowledging that for see also Cavanagh & Sykes, supra note 15, 25 Wackowitz, supra note 10, at 556 (“I some women whose internal genitalia at 81. Moreover, even as a sex-policing knew I was a woman. . . . If I hadn’t defy classification, they live their lives practice, the Barr body test comes up been an athlete my femininity would without knowing they have such a short because it would not detect all never have been questioned.”). condition). individuals with male chromosomes. 26 Genel, supra note 18. In addition 33 FAUSTO-STERLING, supra note 32, at Those with a rare XXY genotype or to AIS, the IAAF policy lists gonadal 3 male physical characteristics would dysgenesis, and Turner Syndrome 34 See Boylan, supra note 32 (“The test positive for the Barr body and be as conditions, which afford no Olympic hosts [in Beijing] seem to counted as women by the IOC. The competitive advantage, and thus want to impose a binary order upon the Barr body test also fails to detect allowed. It also recognizes congenital messy continuum of gender. They are chromosomally female athletes with adrenal hyperplasia, androgen- searching for correctness and certainty non-chromosomal masculinizing producing tumors, and anovulatory in a world that contains neither.”). conditions, such as androgen-secreting androgen excess as conditions, which 35 See Cavanagh & Sykes, supra note 15, at tumors. Myron Genel, Gender Verification “may afford competitive advantage”, 75 (addressing the controversy behind No More?, 5 WOMEN’S HEALTH (2000), but should nevertheless be allowed. allowing the participation of transsexual http://ai.eecs.umich.edu/people/ INT’L ASS’N OF ATHLETICS FED’N, supra athletes, where opponents feel that conway/TS/OlympicGenderTesting. note 4, ¶ 6. gender self-determination results in html. 27 See Cole, supra note 21, at 142–43 unfair competitive advantages).

SPRING 2011 41 36 Id. at 75-76. compromising the level playing field that the advantageous energy 37 See Wackwitz, supra note 10, at 554- by pointing out that “it is impossible return a runner received from 55 (stating that the separation of to ensure that all competitors using prosthetic limbs had to be athletic events into male and female will play under exactly the same considered against the disadvantages events, while helpful is damaging “to conditions or that an individual’s of doing so). those identified as women” because ability will be the sole determinant 46 Boylan, supra note 32 (“The best “the system which seeks to provide a of the outcome”). judge of a person’s gender is not a space for women to compete is also 43 Todd Alligner, Clap Skates at degrading, questionable examination. the system that insists upon their Nagano: World Records Tumble in Speed The best judge of a person’s gender competitive inferiority”). Skating, SPORTSCIENCE NEWS, Mar- is what lies within his, or her 38 S.L. Price, Is It in the Genes?, SPORTS Apr 1998, available at http://www. heart….A quick look at the reality ILLUSTRATED, Dec. 7, 1997. sportsci.org/news/ of an athlete’s life ought to settle the 39 See Cavanagh & Sykes, supra note news9803/clapnagano.html; Kelli question.”). 15, at 83 (recognizing that while Anderson, The War of the Swimsuits, 47 See, e.g., WORLD ANTI-DOPING muscles and muscularity are deemed SPORTS ILLUSTRATED, June 23, 2008, AGENCY, ANTI-DOPING CODE ¶ 2.1.1 masculine and goes against the at 54. Though shark skin suits have (2009) (“It is each Athlete’s personal conventional ideas of women and been prospectively banned, there are duty to ensure that no Prohibited femininity, women are encouraged to no serious proposals to invalidate Substance enters his or her body . train their bodies and increase their the records set by swimmers using . . . Accordingly, it is not necessary physique; see also COLETTE DOWLING, this equipment in Beijing. Id. that intent, fault, negligence or THE FRAILTY MYTH: WOMEN 44 PGA Tour, 523 U.S. at 686-87 knowing Use on the Athlete’s APPROACHING PHYSICAL EQUALITY (“[C]hanges in the weather may part be demonstrated in order to (2000). produce harder greens and more establish an anti-doping violation 40 Reeser, supra note 24, at 698. head winds for the tournament under Article 2.1.”); C. v. Federation 41 See id. (stating that it might be leader than for his closest pursuers. Internationale de Natation Amateur, useful to consider how the IAAF A lucky bounce may save a shot CAS 95/141 (1996) (swimmer given and IOC would address issues of a or two….Pure chance may have banned substance by her coach was “genetically unique individual” who a greater impact on the outcome disqualified). develops attributes that allow him or of elite golf tournaments than 48 WORLD ANTI-DOPING AGENCY, her to excel at a certain sport). [an advantage a disabled player supra note 47, ¶ 4.2.1. 42 Cf., e.g., PGA Tour, Inc. v. may receive from a golf cart 49 Boylan, supra note 32 (arguing that Martin, 532 U.S. 661, 686-87 (2001) accommodation].”). Olympic officials “have to learn to (rejecting the Professional Golf 45 Cf. Pistorius v. Int’l Ass’n of Athletics live with ambiguity, and make peace Association’s argument it could not Federations, CAS 2008/A/1480 with a world in which things are not waive its golf cart prohibition for a (2008) (rejecting a narrow view of always quantifiable and clear”). physically disabled athlete without competitive advantage in reasoning

See Katy Bosse’s “Inside the Authors’ Studio” interview on our website to learn more about her inspiration for the article, and her thoughts about the issues and questions emerging from the following article.

42 THE MODERN AMERICAN