Overnight in Geneva, the UN Human Rights Council adopted without a vote a resolution on the elimination of discrimination against women and girls in sport. The resolution responds to the situation of Caster Semenya, a cisgender women, born with a variation of sex characteristics, who is the target of 2018 IAAF regulations. Those regulations aim to restrict competition by women with some specified variations of sex characteristics in four athletics events, proposing exclusion unless they lower their testosterone levels through medical intervention. The regulations have been suspended pending a case by Caster Semenya before the Court of Arbitration for Sport.
The resolution is ground-breaking. It is the first resolution on the rights of (some) intersex persons, in this case women born with variations of sex characteristics, using the medicalised language of the IAAF regulations on women with “differences of sex development” and androgen sensitivity. It also explicitly refers to the rights to bodily integrity and bodily autonomy.
Morgan Carpenter, co-executive director of IHRA, welcomes the resolution:
Thank you to South Africa and the Human Rights Council for approving this first resolution on the rights of people born with intersex variations. Access to sport is a litmus test for the rights of intersex people, highlighting the ways that our legal birth classifications can be ignored, our bodies are sites of public scrutiny and stigmatisation, and our right to bodily integrity disregarded.
Previous IAAF regulations affecting women born with variations of sex characteristics were suspended in 2015 with no evidence of detriment to women’s sport. There is no published, transparent, and reproducible evidence of a clear or unethical advantage by women athletes born with variations of sex characteristics over other women athletes. Exclusion from women’s competitive sport is discriminatory under such circumstances; it is not reasonable, proportionate and non-arbitrary. Sporting authorities and associations must now recognise a need for regulations to meet international human rights norms
IHRA can assist sporting bodies in Australia.
In separate news, the Court of Arbitration for Sport has deferred until the end of April a judgment in the case brought by Caster Semenya. This had previously been expected by the end of March.
Court of Arbitration for Sport. 2019. ‘Semenya, ASA and IAAF: Planning Update’. March 21. https://www.tas-cas.org/en/general-information/news-detail/article/semenya-asa-and-iaaf-planning-update.html.
ILGA World. 2019. ‘First UN Resolution on the Rights of Intersex Persons: UN Calls to End Discrimination of Women and Girls in Sports, Including Women Born with Variations of Sex Characteristics’. March 22. https://ilga.org/first-un-resolution-rights-intersex-persons-women-sport
International Association of Athletics Federations. 2018. ‘Eligibility Regulations for Female Classification (Athletes with Differences of Sex Development)’. IAAF.
Intersex Human Rights Australia. 2019. ‘Intersex People and Sport’. January 16. https://ihra.org.au/sport/
Karkazis, Katrina, and Morgan Carpenter. 2018. ‘Impossible “Choices”: The Inherent Harms of Regulating Women’s Testosterone in Sport’. Journal of Bioethical Inquiry, August. https://doi.org/10.1007/s11673-018-9876-3
United Nations Human Rights Council. 2019. ‘Elimination of Discrimination against Women and Girls in Sport’. A/HRC/40/L.10/Rev.1. The final version is available on the OHCHR website (free registration required).