Intersex Human Rights Australia

FINA, the international body governing competitive swimming has issued new regulations overnight. The new regulations insist that women with certain intersex traits are males with ‘XY DSDs’ who may only compete in the women’s category ‘if they can establish to FINA’s comfortable satisfaction that they have not experienced any part of male puberty beyond Tanner Stage 2 or before age 12, whichever is later’.

The new FINA regulations, reinforce the stigma and shame that are all too often associated with intersex traits. The reality is that such regulations will have little immediate impact, except to reinforce this shame and stigma.

Girls and women with intersex traits are routinely subjected to unnecessary medicalisation to make their bodies fit normative ideas of how girls should look. In a 2020 journal article, two NSW paediatric endocrinologists suggest that ‘surgical options’ are a valid consideration in determining sex in situations where sex assignment is in doubt (Vora and Srinivasan 2020). In a 2019 presentation on 24 adolescents and girls with intersex variations seen by a Brisbane paediatric and adolescent gynaecology service in a 10-year period, all but one adolescent underwent sterilisation, that is, removal of their gonads (Adikari et al. 2019). In 5 cases, adolescents were unaware of their diagnosis prior to referral. Case reports by this clinical team show experiences of sterilisations and other unnecessary medical interventions early in life. Legal (Carpenter 2018) and media reports (Bock 2013) outline how girls with intersex traits in Australia have undergone surgeries to ‘enhance’ the appearance of their genitalia.

These are all people with ‘XY DSDs’ within the meaning of the new rules for participation in women’s sport by FINA. These are the people impacted by rules that seek to insist that women with ‘XY DSDs’ are males with a ‘female gender identity’.

Early interventions to make the bodies of infants and children fit ideas of how girls should look or function are human rights abuses. They are poorly evidenced, and often grounded in gender stereotypes. In insisting that women with these traits undergo treatment before age 12, FINA is requiring that women with these traits undergo medical interventions before they are able to freely express their own preferences for medical treatment. As their inclusion is only possible with treatment, the regulations create a coercive environment.

Morgan Carpenter, bioethicist and executive director of IHRA, comments:

These regulations only add to the harm experienced by people with intersex variations in Australia. The women with XY traits primarily impacted by these regulations have not transitioned gender, they are not gender diverse, and they have often not had opportunities to participate in decision making about how they are medically treated. They were observed or assigned female at birth. They have been raised as women. Treating them as males strips them of their lifelong status and disregards their biological and social realities. Their status should not depend on the convenience of others.

The new FINA regulations require women in this situation to prove and certify practices that have violated their rights. Given the ongoing history of unnecessary medicalisation of children with intersex traits, these regulations reinforce and require harmful practices, or exclusion.

Agli Zavros-Orr, chair of the board, states:

The ‘XY DSDs’ new rules for participation in women’s sport by FINA, are simply un-educated and discriminatory. Understanding of bodies and their biological variations from such a narrow perspective reinforces psycho-social gender-based stereotypes about female bodies and their diversity.

With many young people and young adults not learning about their intersex variation until they are older – to also find out that they are discriminated against in society (in this case participation in elite sport) can add to the experience of trauma because of pathologizing and discriminating practices beyond the doctor’s office.

From an education perspective this reinforces that society and social systems are discriminatory. Such systems perpetuate systemic violence that subject bodies to further scrutinization about what it means to be female – that leads to biased policing (with potential for bullying and harassment by those given the authority to implement this policy).

Tony Briffa, deputy chair of the IHRA board and president of Intersex Peer Support Australia, states:

FINA’s regulations not only impact trans athletes, but they exclude girls and women born with natural biological variations of sex characteristics too. This is extremely disturbing and further promotes the shame and stigma many intersex women feel. Girls born with androgen insensitivity syndrome, for example, are girls. We are raised as girls, go through natural puberty as young women, and live life as women. We have female bodies. We are not male, nor are we transgender.

Girls and women with intersex variations are far too often shamed, pathologised and mistreated as girls because of the way nature made us. FINA’s decision reinforces old fashioned views that medically unnecessary and potentially damaging interventions should happen on us as children without our consent just to be able to be accepted as women. This includes having healthy organs removed when we are children, being given hormones as children, and having devices inserted into our vaginas as little girls. Imagine any other girl having to go through this just to be recognised as a girl and to be able to play sport. It’s obscene.

The FINA meeting that made this decision heard from some women athletes before the vote was taken, but they did not hear the story of girls and women born with natural biological variations of sex characteristics that will be unjustly discriminated against by the new regulations. I call on FINA to meet with girls and women with androgen insensitivity syndrome so they can understand the serious, perhaps unintended consequences, of their regulations.

If fairness, equality and integrity is what FINA are striving for, then they have sadly missed the mark.

Aileen Kennedy, board director, states:

This rule, which assumes a simple and straightforward connection between sex chromosomes and phenotype, shows ignorance and disdain for the many women with intersex traits who have XY chromosomes. Most intersex women with XY chromosomes have been subject, since early childhood, to invasive, irreversible and often traumatising medical interventions to make their bodies fit normative ideas of how girls should look. They have been medicalised as female and raised as female.

Statement attributable to Morgan Carpenter, except where quotes indicate otherwise. Contact Morgan Carpenter at morgan.carpenter@ihra.org.au. Contact Tony Briffa at tony.briffa@briffa.org. Contact Agli Zavros-Orr at agli@diversitywise.com.au.

Recent examples of harmful practices

Unnecessary medical treatment affecting children with ‘XY DSDs’ seen over a 10-year period at a Brisbane paediatric and adolescent gynaecology centre (Adikari et al. 2019). These are the youth affected by these regulations:

Partial androgen insensitivity:

• Gonadectomy and feminizing genitoplasty 1 year age. Vaginal dilatation.
• Gonadectomy and surgical creation neovagina as child. Pubertal induction and HRT. Vaginal dilatators.
• Bilateral gonadectomy. Pubertal induction and HRT. Vaginal dilatation.
• Gonadectomy and reconstructive surgery as infant. Pubertal induction and HRT. Vaginal dilatation.
• Gonadectomy and feminizing surgery age 2yo. Pubertal induction and HRT. Vaginal dilatation.

Mixed gonadal dysgenesis:

• Gonadectomy and genitoplasy [sic] as infant. Pubertal induction and HRT. Vaginal Dilatation.

5 alpha reductase deficiency:

• Gonadectomy and surgical creation neovagina in adolescence. Pubertal induction and HRT. Vaginal dilators. [age of surgery in adolescence and the person providing consent are not disclosed]

17-beta hydroxysteroid dehydrogenase 3 deficiency:

• Bilateral orchidectomy and hernia repair aged 12. Pubertal induction and HRT. Vaginal dilatation.

Complete androgen insensitivity:

• bilateral gonadectomies were most often done at infancy.

Supporting information

We drew on the following articles and reports to make this statement:

Adikari, T, B O’Brien, T Bagchi, and RMN Kimble. 2019. ‘Presentations and Outcomes of Patients with Disorders of Sexual Development (DSD) in a Tertiary Paediatric and Adolescent Gynaecology (PAG) Service’. Presented at the RANZCOG Annual Scientific Meeting 2019, Melbourne.

Bock, Andrew. 2013. ‘It Takes More than Two’. The Age, 20 June 2013. http://www.theage.com.au/national/it-takes-more-than-two-20130619-2oj8v.html.

Carpenter, Morgan. 2018. ‘Intersex Variations, Human Rights, and the International Classification of Diseases’. Health and Human Rights 20 (2): 205–14. https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6293350/.

Carpenter, Morgan. 2020. ‘Caster Semenya’s Life and Achievements Are Cause for Celebration, Respect and Inclusion; Her Exclusion Is Consequential’. Journal of Medical Ethics 46 (9): 593–94. https://doi.org/10.1136/medethics-2020-106506.

FINA. 2022. ‘Policy on Eligibility for the Men’s and Women’s Competition Categories’. https://resources.fina.org/fina/document/2022/06/19/525de003-51f4-47d3-8d5a-716dac5f77c7/FINA-INCLUSION-POLICY-AND-APPENDICES-FINAL-.pdf.

Vora, Komal A, and Shubha Srinivasan. 2020. ‘A Guide to Differences/Disorders of Sex Development/Intersex in Children and Adolescents’. Australian Journal of General Practice 49 (7): 417–22.

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