The 2024 Olympics gender row – Science & Legal issue

It’s 15 years ago this month that a teenage runner, Caster Semenya, from South Africa was publicly scrutinized over her sex at a major sports event.

This issue has now come to the fore again in relation to two women boxers competing at the Paris Olympics. A frenzied debate has raged over the International Olympic Committee (IOC) clearing Algerian boxer Imane Khelif and Taiwan’s Lin Yu-ting to compete in the women’s boxing in the Paris Olympics, despite them having been disqualified from last year’s Women’s World Championships for failing to meet eligibility criteria.

Both women are being subjected to scrutiny over their sex after the International Boxing Association (IBA) claimed both boxers failed sex verification tests last year – but without the IBA giving any information about these tests.

Olympic officials have called the arbitrary testing “so flawed that it’s impossible to engage with it” and stressed that both boxers were assigned female at birth, identify as women and are eligible to compete in women’s competitions.

Nevertheless, female athletes of colour have historically faced disproportionate scrutiny and discrimination when it comes to sex testing and false claims that they are male or transgender.

Transgender and Differences of Sex Development (DSD) Athletes

Transgender participation

The fight to promote fair and/or safe competition should not, in principle, be contentious; however, this is certainly not the case when it comes to transgender athletes and those with DSD.

Semenya was born with DSD and regulation (or perceived lack of regulation) in these areas has proven to be extremely polarising and continues to be a minefield for the IOC and International Federations (IF) to navigate.

In August 2021, the IOC admitted that its previous transgender guidelines (which recommended that transwomen suppress their testosterone levels to under 10 n/mol per litre for at least 12 months to compete) were not fit for purpose.

The IOC’s Transgender Framework, introduced in November 2021, states there is now no need for transwomen to lower their testosterone to compete against natal women.

Nevertheless, rather than attempt to define eligibility criteria for every sport, the IOC has left it in the hands of the individual IFs to determine if an athlete is at a disproportionate advantage.

Semenya’s ongoing legal battle

DSD athlete participation has proven equally controversial, exemplified by the multi-forum legal battles of Semenya. World Athletics’ 2018 Eligibility Regulations for the Female Classification relating to DSD drew much attention and were heavily criticised by many at the time, including a number of human rights organisations

Under the DSD Regulations, female athletes looking to compete in certain middle-distance events must demonstrate that their endogenous testosterone levels are below 5 nmol/L.

Semenya challenged the DSD Regulations before the CAS in 2019 but, whilst the Panel held there was a discriminatory element to the regulations, they were deemed justifiable. That was not the end of the matter as Semenya had an appeal to the Swiss Federal Tribunal rejected in 2020, and in 2021 brought a challenge to the European Court of Human Rights (“ECtHR”).

On 11 July 2023, the ECtHR held by a 4:3 majority that the DSD Regulations had violated Article 14 (prohibition of discrimination) of the European Convention of Human Rights (ECHR), taken together with Article 8 (right to respect for private life), and Article 13 (right to an effective remedy).

In particular, the Court held that Semenya had not been afforded sufficient institutional and procedural safeguards in Switzerland. The case, following appeal from the Swiss Government, has now been referred to Grand Chamber of the ECtHR, to be heard by 17 judges.

Where does this leave Imane Khelif and Taiwan’s Lin Yu-ting?

We do know that the process of sex determination starts when a foetus is developing. Most females get two X chromosomes (XX), while most males get an X and a Y chromosome (XY).

The IBA chief executive Chris Roberts stated that both athletes (Khelif and Yu-ting) had agreed to medical tests and that XY chromosomes were found in “both cases”. However, it doesn’t end there.

As genetic variations are so many and so varied, it’s argued that it would be impossible to establish that everyone with a Y chromosome is a male and everyone without a Y chromosome is a female. As such, and whilst it is a good marker, it is not a perfect indicator.

Nevertheless, a key indicator is the gene named SRY or ‘sex-determining region of the Y chromosome’. Leading biologists believe that this is what is called the make-male gene and it is the ‘master switch’ of sex development.

However, as stated above, the IBA has not disclosed details of the way both boxers were tested.

As a consequence, there is not enough information to know if they have a DSD that would need to be regulated and regulating elite sports, which typically rely on male-female binary categories in competition, is complicated because the biology of sex itself is complex and not exclusively binary.

Some believe that the IOC is not basing its eligibility criteria on the best available science and there are growing calls for mandatory sex testing at the next Olympics. However, even this test has met with disagreement amongst many in the medical profession.

There are calls for a comprehensive sex test that would test genetics (‘make-male’ gene), hormones (testosterone), and lastly, the body’s responsiveness to hormones like testosterone.

For now, it would appear that Khelif and Yu-ting are caught in a never ending cycle to the extent that the science in this sphere and the applicable law/regulations are not able to offer clear cut guidance or a definitive answer just now.

One thing is clear though – this issue is not going away.

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