Nancy Gillen

Last week, Human Rights Watch (HRW) published a report titled "’They’re Chasing Us Away from Sport’ - Human Rights Violations in Sex Testing of Elite Women Athletes”".

A virtual panel discussion on the topic was also held to mark the release of the report. On the panel was Burundi's Olympic 800 metres silver medallist Francine Niyonsaba, Michael van Gelderen of the Office of the United Nations High Commissioner for Human Rights and HRW senior women’s rights researcher Agnes Odhiambo.

Expert scholars Payoshni Mitra and Katrina Karkazis also participated in the panel discussion. Mitra and Karkazis had partnered with HRW to conduct research for the report in 2019, interviewing affected athletes, coaches and officials, as well as reviewing court and medical documents.

The issue of sex testing is one that has already been heavily discussed, mainly due to the case of South African runner Caster Semenya. The 29-year-old, a two-time and reigning Olympic champion in the women’s 800m, is currently not allowed to compete over distances from 400m to a mile unless she takes medication.

This is due to a World Athletics ruling which forces athletes with differences in sexual development (DSD) to take drugs to reduce their naturally-occurring testosterone. DSD athletes with naturally high levels of testosterone need to medically limit that level to less than 5 nmol/L, double the normal female range of below 2 nmol/L. It is claimed higher levels of testosterone give an "unfair advantage" to female athletes. 

Semenya has lost appeals at the Court of Arbitration for Sport (CAS) and the Swiss Supreme Court but is set to take her case to the European Court of Human Rights. Semenya's situation is the most high-profile, but there are numerous other female athletes who are currently impacted. 

The thought-provoking HRW panel discussion made this abundantly clear. To read the HRW report, which documents the experiences of more than a dozen female athletes who have been impacted by the regulations, was also sobering.

Evidence was supplied which suggests female track and field athletes, largely from the Global South, are abused and harmed by sex-testing regulations. HRW claims the rules encourage discrimination, surveillance, and coerced medical intervention, resulting in physical and psychological injury and economic hardship.

"World Athletics has targeted women from the Global South for decades, treating those with high testosterone as less than human," said Mitra. "These regulations demean women, make them feel inadequate, and coerce them into medical interventions for participation in sports. Modern sport should adapt itself to support inclusion and non-discrimination rather than perpetuate exclusion and discrimination."

More details from the hour-long panel can be read in a comprehensive summary of the event by my colleague Michael Houston.

In its report, HRW included a set of recommendations for World Athletics, which released a statement criticising the organisation for not approaching them for comment, while also reiterating its commitment to women in sport. Recommendations were also included for the International Olympic Committee (IOC). 

These urged the IOC to adopt the UN Guiding Principles on Business and Human Rights as a fundamental principle of Olympism and revise the terms of reference for CAS to allow for appeals based upon the violation of human rights. The IOC was also asked to put in place clear duty of care policies, which explicitly ban all eligibility regulations that require unnecessary medical interventions. In addition, HRW suggested ensuring that all International Federations adopt human rights policies and discontinue regulations that violate women’s rights to non-discrimination and integrity.

HRW also quoted the Olympic Charter in its recommendations, including principle four: "The practice of sport is a human right. Every individual must have the possibility of practising sport, without discrimination of any kind and in the Olympic spirit, which requires mutual understanding with a spirit of friendship, solidarity and fair play." The IOC was asked to ensure governing bodies such as World Athletics uphold these principles of the Olympic Charter.

South Africa's Caster Semenya is one of the most high-profile athletes affected by sex testing regulations ©Getty Images
South Africa's Caster Semenya is one of the most high-profile athletes affected by sex testing regulations ©Getty Images

Interestingly, the IOC is already on its way to implementing one of these suggestions after recently receiving recommendations from independent experts Prince Zeid Ra'ad Al-Hussein, a former United Nations High Commissioner for Human Rights, and Rachel Davis, vice-president of Shift, a non-profit centre of expertise on business and human rights.

"Recommendations for an IOC Human Rights Strategy" was commissioned by the IOC in 2019 and was developed following a consultative process with internal staff and experts. These recommendations now require the IOC to embed and implement the UN Guiding Principles on Business and Human Rights if it is to respond to "existing human rights challenges and get ahead of emerging ones" for athletes and the sporting community.

The IOC also claimed it is aiming to work closely with National Olympic Committees and International Federations to create a framework that ensures fairness, safety and non-discrimination for athletes on the basis of gender identity and sex characteristics.

Regardless, the issues with sex testing raised by HRW represent yet another human rights matter for the IOC to consider. They are really starting to stack up, with critics of the IOC already saying the organisation has not done enough to confront human rights abuses in Belarus, China and Iran. HRW is among the organisations ensuring the IOC is constantly reminded of these issues and does not step back from taking responsibility. 

HRW's recently-published report once again brings a human rights issue to the forefront of the IOC's consciousness. Sex testing in sport is not new and has proved to be controversial in the past, but the report has produced fresh evidence of human rights abuses as a result of the current regulations. It makes it even more impossible for the IOC to ignore.