Oxford ethicist: 'In defence of intersex athletes'

The Court of Arbitration for Sport (CAS) has announced that Caster Semenya and other athletes with disorders of sex (DSD) conditions will have to take testosterone-lowering agents in order to be able to compete. Julian Savulescu, Uehiro Professor of Practical Ethics in Oxford's Faculty of Philosophy, writes in response to this decision...

Reducing the testosterone levels of existing intersex female athletes is unfair and unjust.

The term intersex covers a range of conditions. While intersex athletes have raised levels of testosterone, its effect on individual performance is not clear. Some disorders which cause intersex change the way the body responds to testosterone. For example, in androgen insensitivity syndrome, the testosterone receptor may be functionless or it may be partly functional. In the complete version of the disorder, although there are high levels of testosterone present, it has no effect.

As we don’t know what effect testosterone has for these athletes, setting a maximum level is sketchy because we are largely guessing from physical appearance to what extent it is affecting the body. It is not very scientific. We simply don’t know how much advantage some intersex athletes are getting even from apparently high levels of testosterone.

It is likely that many winners of Olympic medals and holders of world records in the women’s division will have had intersex conditions historically. It is only recently we have become aware of the range of intersex conditions as science has progressed.

These intersex women have been raised as women, treated as women, trained as women. It is unfair to change the rules half way through their career and require them to take testosterone-lowering interventions.

It is a contradiction that doping is banned because it is unnatural, risky to health, and reduces solidarity. But in these cases they want to force a group of women to take unnatural medications, with no medical requirement, in order to alter their natural endowments. Elite sport is all about genetic outliers. Cross-country skier Eero Mantyranta won seven Olympic medals in the 1960s, including three golds. He had a rare genetic mutation that means the body creates more blood cells. The oxygen carrying capacity can be up to 50% more than average. This is a huge genetic advantage for endurance events like cross-country skiing. The World Anti-Doping Agency (WADA) says “the spirit of sport is the celebration of the human spirit, body and mind”, but in this case, the rules seek to limit and quash bodies that don’t fall into line with our expectations.

It is true that the rules of sport are arbitrary. What defines man and woman will always have borderline cases. But it is imperative these individuals are not unfairly disadvantaged. It is unfair to take away a person’s life and career because you choose to redefine the rules.

CAS agreed that the rules are unfair, but found the unfairness justified: “The panel found that the DSD regulations are discriminatory but the majority of the panel found that, on the basis of the evidence submitted by the parties, such discrimination is a necessary, reasonable and proportionate means of achieving the IAAF’s [International Association of Athletics Federations] aim of preserving the integrity of female athletics in the restricted events.”

Yet there is another option: to implement the rules prospectively by allowing a “grandmother” clause for existing athletes who identify and were raised as women. Then testing for new athletes could take place early – as soon as puberty is complete – to identify athletes who would come under the DSD definition. Affected athletes could make an informed choice about continuing to compete at the cost of being required to take testosterone-lowering agents. This would still deny them the opportunity of competing to their full potential, but it would at least prevent individuals from investing their lives in a sport they would either not want to or be able to compete in.

Intersex conditions can restrict people’s life options. In many cases, it is not possible to have a biologically related child or carry a pregnancy. Unfortunately, it can still carry stigma and discrimination (indeed CAS agree this is an example of it). One possible upside is an advantage in sports. This should not be denied. 

Sport is based on natural inequality. If this is of concern to the authorities, I have argued that physiological levels of doping should be allowed. This would allow all women to use testosterone up to 5nmol/L, as can occur naturally in polycystic ovary syndrome and which the IAAF has considered an upper limit for women with intersex conditions. This would also reduce or eliminate the advantage some intersex athletes hold.

The rules of sports are arbitrary but they should not be unfair. Changing the rules to exclude a group of people who signed up under the current rules is unfair. A change for future generations of athletes would be less unfair, but I believe that it will make for a less interesting competition and will still disadvantage some women.

There is no fairytale ending to this story. Someone will be a loser. But that is always the case in sport.