Sport – Intersex Human Rights Australia

What is the issue?

Intersex people suffer exclusion and stigmatisation in sport. This takes multiple forms. On a day-to-day level, the most significant issue faced by intersex people in sport settings is body shaming, and the idea that our bodies are too masculine or too feminine.

This is one of a series of briefing papers on discrimination, stigma and policy in specific settings:

In workplaces
In education
In detention
In sport

Concerns about “locker rooms” sometimes appear in clinical literature as rationales for early surgeries to make our bodies more typically female or male, but these fail to account for our rights to determine what happens to our bodies ourselves, and fail to account for scarring, and other lifetime physical and psychological impacts (Carpenter, 2018b).

Intersex people who change legal sex classification may face some of the same challenges that face transgender people. This unfortunately is also the case for intersex people who have non-binary, alternative and multiple sex markers.

In contrast, there are no legal or other issues facing any intersex men interested in playing men’s sport, and no justifications for their exclusion. No international sports body has ever introduced exclusions for men born with intersex variations.

Women born with intersex variations face additional issues, including the idea that, even observed, assigned and raised as girls, with a lifelong social and legal status as women, they should not be permitted to compete as women. This is a distinct issue from participation by transgender women, as women with intersex variations who are targeted by exclusions have never sought to transition or change sex classification; they seek to compete in their birth-observed classification.

Body shaming is an intersex issue, August 2016

Historically, testing to ensure that women competitors are women has arisen because of a view (supported by performance data in some sports) that mixed-sex competition would adversely impact the inclusion of women in sport, and that women’s sport needs to be protected from participation by men (Padawer, 2016). It has arisen, then, in a climate of hostility towards perceived masculinity in women’s sport, and fear of perceived deviance. These rationales persist (Jordan-Young and others, 2014; Karkazis and Carpenter, 2018).

Initially, sex testing of women athletes involved examinations of women’s genitals and other sex characteristics. Chromosomal analysis was later introduced. Both of these were discontinued, the latter because of the impact on women with androgen insensitivity, including women who suffered profound harms as a consequence, including public humiliation (Martínez-Patiño, 2005; Padawer, 2016; Sengupta, 2014). In many cases, being examined for competition was the first time that some women discovered their intersex trait (Martínez-Patiño, 2005; Sengupta, 2014).

Subsequent guidelines in athletics have drawn an arbitrary line between acceptable and unacceptable levels of testosterone in women athletes. Current (IAAF, 2019) guidelines directly impact a subset of women with intersex variations, 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 are impacted. These guidelines include hormone testing, chromosome and genetic testing, and genital and other physical examinations.

Intersex people have a right to bodily integrity that is often disregarded.
For example, in Australia, a young child with 17β‐HSD3 was subjected to a clitorectomy and labioplasty at age 3 that a Family Court judge described in 2016 as having “enhanced the appearance of her female genitalia” (see Carpenter, 2018c →)
17β‐HSD3, androgen insensitivity and many other intersex traits also appear on lists of traits considered for elimination from the gene pool
Our legal status and identities are also often disregarded
Read more about discrimination and stigma

Salacious public attention has persisted for a decade since an Australian newspaper first reported on leaked claims in relation to Caster Semenya in 2009. Media attention has created a climate of fear and suspicion that harms all people born with intersex variations.

Shockingly, in 2013, it was reported that several women athletes had been subjected to gonadectomies (i.e. sterilisation) and clitoral reduction surgeries as part of a process intended to facilitate their participation in competitive sport (Fénichel and others, 2013). This has been condemned by other clinicians and bioethicists (Ha and others, 2014; Jordan-Young and others, 2014), as well as intersex-led organisations and the United Nations (Special Rapporteur, 2016).

In the Dutee Chand case, the Court of Arbitration in Sport found (2015) that there was a 10% difference in the performance in athletics between women and men, but that no such significant difference applied in the case of women with intersex variations (Karkazis and Carpenter, 2018). There is only “sparse” evidence relating to the sporting performance of women with intersex variations (Handelsman and others, 2018; see also Karkazis and Carpenter, 2018). There is no clear evidence supporting the exclusion of women with intersex variations.

In the years since 2015, there is no evidence of women’s sport suffering from the inclusion of women with intersex variations. In 2016, some clinical members of the 2015 IOC meeting challenged the policy on hyperandrogenism, stating:

with the passage of time and the recurring public spectacle of young women, often from less-developed areas of the world, having their underlying biology indiscriminately scrutinized in the world media, it has become evident that the hyperandrogenism policies are no more salutary than earlier attempts to define sharp sex boundaries” (Genel and others, 2016).

This reflected substantively similar remarks in 2000 (Simpson and others).

Intersex and intersectionality

World Athletics (formerly IAAF) regulations in athletics introduced in 2018 (IAAF 2018), associated the existence of new sex classifications with intersex people, and suggested that women with intersex variations who refuse the medicalisation of their bodies be consigned to those classifications irrespective of their legal status; this appeared to be designed to humiliate (Karkazis and Carpenter, 2018). Those regulations are also grounded in racialised conceptions of beauty and body norms, and disproportionately impact women from low income and resource poor countries and regions (Karkazis and Jordan-Young 2018).

Caster Semenya lost her legal challenge to the 2018 World Athletics regulations, despite the support of representations by UN Special Rapporteurs on health, torture, and discrimination against women (Puras and others, 2018) and contested evidence put forward by World Athletics in favour of the regulations (Pape and Piekle 2019; Pielke, Tucker and Boye 2019). Moreover, World Athletics modified the regulations during the case, removing XX congenital adrenal hyperplasia from the list of specified intersex variations (Court of Arbitration for Sport 2019a). This has had the effect of placing more information about Semenya’s body into the public domain, and cast the debate as one not simply about ‘hyperandrogenism’, but hyperandrogenism associated with a specific aetiology and chromosomes (Carpenter 2020). This has directly influenced public discussion.

The present situation is one where, according to Morgan Carpenter, the case of Caster Semenya illustrates:

a convenience-based approach to classification of sex where choices about the status of people with intersex variations are made by others according to their interests at that time (Carpenter 2020).

Carpenter concludes by stating that, even “where inconvenient, sex assigned at birth should always be respected unless an individual determines otherwise” (Carpenter 2020).

What do we know about practices in Australia?

Intersex inclusion in research studies and forms

While attempts have been made to survey the experience of intersex people in sport, as part of studies on LGBTI people (ACT Human Rights Commission and others, 2014) or transgender and intersex people (AHRC, 2015), their framing has failed to be relevant to the needs of intersex people, and low sample sizes mean that the data are not representative.

Caster Semenya has been subject to brutal scrutiny of her appearance and her physical traits, described in Australian media as a “gender bender” (Silkstone, 2009) or transgender (for example, Walsh, 2016), a “ticking time bomb” (McRae, 2016), and someone who should be “forced” into being medicalised (Kelner and Rudd, 2017). This public humiliation has helped to frame an often hostile media debate on the inclusion of intersex people in sport.

Anecdotally, and in research on educational needs (Jones, 2016), we are aware of multiple people who avoid participation in sport because of experiences of body shaming and developmental delays.

Read our submission on the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Bill, 2013
Read Questions on Notice on the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Bill 2013, Attorney General’s Department →

Under some circumstances, federal legislation, and legislation in some States, permits the exclusion of women born with intersex variations. According to Section 42 of the Sex Discrimination Act (Cth), these exclusions are for participants in “any competitive sporting activity in which the strength, stamina or physique of competitors is relevant” in persons aged 12 or over.

We opposed this inclusion when it was introduced into the Sex Discrimination Act in 2013. In response to questions by an inquiry of the Senate Standing Committee on Legal and Constitutional Affairs, the Attorney General’s Department confused our position with the position of a leading transgender organisation, but nevertheless stated:

The drafting mirrors the approach taken in in the HRAD Bill and State and Territory anti-discrimination laws.

The Department understands the operation of the exemption in State and Territory law will often involve a case-by-case assessment of individual circumstances. That is, the exemption is not intended to operate to require sporting competitions to have policies which automatically exclude people who are intersex, or people with a gender identity which does not match their birth sex. Instead, it is to provide reassurance that organisers are able to make decisions to guarantee fair competition in sporting events.

It is our view that clear reproducible and replicable evidence of any purported performance advantage is essential for any party seeking to exclude an intersex person from competitive sport. At present, no such evidence exists.

Our position

Affirm the Darlington Statement →
Yogyakarta Principles plus 10 →
Report of the UN Special Rapporteur on health →

Guidance on including intersex people in sport should state that any women and men can always play or compete if that is their birth-assigned legal sex.

Our position is set out in the 2017 Darlington Statement, an Australian – Aotearoa/New Zealand intersex community declaration, where:

35. We call for access to sport at all levels of competition by all intersex persons, including for all intersex women to be permitted to compete as women, without restrictions or discriminatory medical investigations.

The Yogyakarta Principles plus 10 state, in relation to the “Rights to Equality and Non-Discrimination (Principle 2)” that States shall:

I) Ensure that all individuals can participate in sport in line with the gender with which they identify, subject only to reasonable, proportionate and non-arbitrary requirements;

J) Ensure that all individuals can participate in sport without discrimination on the grounds of sexual orientation, gender identity, gender expression or sex characteristics;

K) Adopt legislative, policy and other measures in line with international human rights norms and standards to eliminate bullying and discriminatory behaviour at all levels of sports, on the basis of sexual orientation, gender identity, gender expression and sex characteristics;

We encourage sports bodies to adopt policies that reflect 2016 guidance by the UN Special Rapporteur on health:

Sporting organizations must implement policies in accordance with human rights norms and refrain from introducing policies that force, coerce or otherwise pressure women athletes into undergoing unnecessary, irreversible and harmful medical procedures in order to participate as women in competitive sport. States should also adopt legislation incorporating international human rights standards to protect the rights of intersex persons at all levels of sport, given that they frequently report bullying and discriminatory behaviour,50 and should take steps to protect the health rights of intersex women in their jurisdiction from interference by third parties.

Any policy guidelines must not problematise participation in sport by intersex women and intersex men.

In relation to intersex people who change sex classification or have nonbinary sex markers, we encourage sports bodies to adopt policies that reflect the Yogyakarta Principles plus 10 and relevant guidance by the UN Special Rapporteur on health:

Policies must reflect international human rights norms, should not exclude transgender people and non-binary people from participation and should not require irrelevant clinical data or unnecessary medical procedures as a precondition to full participation… States, sporting organizations and other actors should adopt anti-discrimination policies that permit all persons to participate in amateur sport on the basis of their self-identified gender.

What have we done about it?

Read Carpenter, Morgan. ‘Intersex People: Not Invisible in Sport, but Often Inadvertently Excluded’. Sydney Health Ethics (blog). 10 October 2018 →
Read our response to 2017 ACT guidelines on transgender and intersex inclusion in sport

We continually engage in evidence-building, including through supporting independent research. We engage with policy-makers and local, national, regional and international human rights institutions. We promote governmental and institutional responses to our findings. We build community expertise through community gatherings and mentoring.

We write about these issues, including:

Carpenter, Morgan. 2018. ‘Intersex People: Not Invisible in Sport but Inadvertently Excluded’. Play by the Rules (blog). 13 September 2018. Updated version on the Sydney Health Ethics (blog). 10 October 2018.
Karkazis, Katrina, and Morgan Carpenter. 2018. ‘Impossible “Choices”: The Inherent Harms of Regulating Women’s Testosterone in Sport’. Journal of Bioethical Inquiry 15 (4): 579–87.
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.
Carpenter, Morgan, and Katrina Karkazis. 18 February 2021. ‘Women Athletes Subjected to “Sex Testing” Are Faced With Impossible Choices’. Foreign Policy. https://foreignpolicy.com/2021/02/18/women-athletes-subjected-to-sex-testing-are-faced-with-impossible-choices-caster-semenya-world-athletics/.

We have participated in inquiries:

We reviewed a 2020 report by Human Rights Watch based on an inquiry that interviewed women athletes directly affected by the World Athletics regulations. Work by Katrina Karkazis and Morgan Carpenter was cited in the report.
A response to the UN Office of the High Commissioner for Human Rights inquiry on the elimination of discrimination against women and girls in sport.
We object to aspects of the ACT Human Rights Commission’s 2017 guidelines ‘Everyone Can Play’ on transgender and intersex participants as they are more likely to problematise than facilitate participation in sport by people with intersex variations. These guidelines are primarily focused on the participation of transgender people.
In 2015, we participated in face-to-face consultations with the UN Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health. These contributed to the 2016 report by the Special Rapporteur.
This 2015 survey by the Australian Human Rights Commission focused on both transgender and intersex people, limiting participation rates by intersex people. A further consultation took place in 2018.
Our submission on the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Bill, 2013

More information

Browse our extensive library of articles on sport.

What is the issue?

What do we know about practices in Australia?

Our position

What have we done about it?

Further reading

More information