Caster Semenya and the Myth of a Level Playing Field Erin E

The Modern American Volume 6 | Issue 2 Article 5 2010 Caster Semenya 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 Berlin. 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 racism 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 Olympic Games 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 Santhi Soundarajan, 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 Beijing 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 intersex 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 Olympic medal 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.

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