IHRA has made a formal submission to the UN Office of the High Commissioner for Human Rights in response to a questionnaire seeking information to fulfil its mandate in Human Rights Council resolution 40/5 on the elimination of discrimination against women and girls in sport.
In considering our responses, we respect the focus of the inquiry on women and girls. We draw attention to the IAAF ‘Eligibility Regulations for Female Classification (Athletes with Differences of Sexual Development)’ (International Association of Athletics Federations 2019). These regulations directly impact a subset of women with intersex variations in certain competitive sports, including those with partial androgen insensitivity syndrome, ovotestes, 5α‐reductase type 2 deficiency (5α-RD2), and 17β‐hydroxysteroid dehydrogenase type 3 deficiency (17β‐HSD3). Only a small subset of athletics events is directly impacted by these regulations. We note that the 2019 regulations are differentiated from 2018 regulations challenged by Caster Semenya before the Court of Arbitration for Sport (2019) by the omission of congenital adrenal hyperplasia.
We also draw attention to systemic issues of stigmatisation, discrimination and harmful practices. It is the view of IHRA that regulations governing the participation of women with intersex variations in sport are not only grounded in gender stereotypes but also racialised, with particular scrutiny of racialised women from low income regions, and racialised notions of femininity (Karkazis and Jordan-Young 2018; Carpenter 2019). At the same time, we note that children with intersex variations in high income countries like Australia are routinely subjected to harmful practices that impact on their participation in sport.
In June 2020, the UN published its report on this inquiry. The inquiry makes strong recommendations about the process by which challenges to IAAF policies are adjudicated, and in relation to the treatment of athletes. These recommendations include:
54. States have obligations to remove obstacles for women and girls in accessing sport, including social, cultural and economic barriers. To this end, they should address discrimination in sport on the basis of gender, race and other grounds by:
(a) Collecting data and providing analyses on the structural barriers to access to sport for diverse women and girls;
(b) Ensuring that their national anti-discrimination law is adequate to address discrimination on the basis of gender, as well as compounded discrimination on the basis of gender and race or other prohibited grounds, including discrimination on the basis of particular intersex variations or on the basis of sex characteristics. Such domestic law, in conformity with international human rights obligations, needs to be applicable to and in practice be applied to sport governing bodies;
59. In light of their distinct obligations and responsibilities, States and sporting bodies should work together to promote the inclusion of women and girls in sporting activities, paying particular attention to women and girls marginalized on account of their race, nationality, immigration or refugee status, ethnicity, religion, HIV or other health status, disability, maternity/parental status or gender/gender identity or sexual orientation, and create equality-affirming programmes and policies by:
(a) Ensuring the inclusion of and cooperation with organizations led by intersex persons in efforts to include more and a greater diversity of women and girls’ sport;
(b) Carrying out, in conjunction with athletes and their associations, public education campaigns to counter gender-stereotyped and racist attitudes and using all appropriate measures to address negative and stereotypical portrayals of women and girl athletes in the media, paying particular attention to pervasive attitudes to appropriate norms of femininity.
62. Sport governing bodies should protect athletes’ right to remedy by not restricting their access to justice mechanisms. Moreover, they should act to ensure effective forms of redress that conform with international human rights law and that are equally accessible to all athletes regardless of resources and geographic location.
63. Sport governing bodies should ensure that the heightened protections for athletes under the age of 18 provided by the international framework for child rights are in place in sport governing bodies policies, rules and regulations.
64. Sport governing bodies should review, revise and revoke eligibility rules and regulations that have negative effects on athletes’ rights, including those addressing athletes with intersex variations.
65. The Human Rights Council should consider remaining apprised of these issues, and, in particular, consider a review of the interactions between private and public law in sports, with due regard for the independence of sporting bodies and the pre-eminent duty of States to respect, protect and fulfil rights.