The DSD crisis continues, as the IAAF responds to Letter from three prominent groups supporting Women’s sports rights. The full letter is below. This battle over DSD regulations will continue for some time to come.
Today the IAAF responded to a letter received last week from Raswyn Lovett, Co-Chair of the International Working Group on Women in Sport (IWG), Diane Huffman, President of WomenSport International (WSI), and Professor Rosa Lopez de D’Amico, President of the International Association of Physical Education for Girls and Women (IAPESGW).
Dear Ms Lovett, Ms Huffman and Professor Lopez de D’Amico,
Thank you for your letter dated 30 May 2019 in relation to the IAAF‘s Eligibility Regulations for the Female Classification (Athletes with Differences of Sex Development) (DSD Regulations).
The IAAF agrees that this is a ‘complex issue’. However, with respect, the IAAF cannot agree with a number of the misconceptions asserted in your letter, notably that the DSD Regulations ‘enforce gender inequality’.
The DSD Regulations were introduced precisely because the IAAF is committed to protecting the rights and opportunities of female athletes. The IAAF is entitled, indeed required, to give male and female athletes an equal chance to excel in elite-level athletics, for the benefit of the athletes themselves, the sport and wider society. It is because of the substantial physical advantages between adult males and females that the female category is protected in sport. Without separate competition categories, female athletes would win no medals or other prizes (and would not even come close to winning). The reason is biological: men have XY chromosomes that lead to testes that produce high levels of testosterone (the hormone that builds larger and stronger bodies with more muscle mass, stronger bones and more haemoglobin in the blood). It is not fair and meaningful for biological women (with XX chromosomes that lead to ovaries that produce much lower levels of testosterone) to compete against men.
The challenge that the IAAF faces is how to accommodate individuals who identify as female (and are legally recognised as female) but who – because of a difference of sex development – have XY chromosomes that lead to testes that produce high levels of testosterone, and therefore have all the same physical advantages over women for the purposes of athletics as men have over women.
All of the concerns that you express in your letter were argued by those appealing the regulations before the Court of Arbitration for Sport (CAS). The CAS Panel – chaired by an experienced female judge – found that the DSD Regulations were discriminatory but that such discrimination was lawful because the DSD Regulations were a necessary, reasonable and proportionate means of achieving a legitimate objective. That legitimate objective was fair and meaningful competition in the female category of elite athletics.
However, the IAAF wishes to directly address a number of the concerns you have raised in order to avoid the repetition of statements that are misconceived or plainly incorrect:
– The IAAF is not a public authority exercising state powers, but rather a private body exercising private (contractual) powers. Therefore, it is not subject to human rights instruments such as the Universal Declaration of Human Rights or the European Convention on Human Rights. Consistent with that, the IAAF notes that Principle 1(a) of the Brighton plus Helsinki Declaration on Women and Sport that you cite in your letter places obligations on ‘state and government’, not on international sports federations like the IAAF.
– However, the IAAF has itself committed (in Article 4 of the IAAF Constitution) to equal treatment and non-discrimination in athletics. In fact, it is that commitment to equal treatment that mandates provision of a female-only competition category, on the basis that the biological differences between the sexes mean this is the only way to guarantee female athletes an equal chance to excel and to secure the social and other goods that elite sport can offer. Anti-discrimination laws in Australia, the US and the UK recognise the need for this positive discrimination in favour of biological females on the basis of biological sex traits, and so expressly permit this female ‘set-aside’ in sport, and do not allow those excluded from the category to argue this is unlawful.
– The IAAF agrees that the affected DSD athletes have not cheated or doped but strongly disagrees that the DSD Regulation ‘implies wrongdoing and comes with a penalty’. The DSD Regulations themselves state that they ‘exist solely to ensure fair and meaningful competition within the female classification’, and the dignity and privacy of affected athletes will be protected.
– Under no circumstances will the DSD Regulations ‘force an athlete to take medication that alters their natural state’. Athlete consent is built into the DSD Regulations at every stage, and any diagnosis and/or treatment (in either case, if desired by the athlete) is undertaken by world-leading medical experts, independent of the IAAF. It is important to recognise that for many 46 XY individuals with one of the covered DSDs and a female gender identity, such treatment is the recognised standard of care and the medication helps to change their body to better reflect their chosen gender.
– The DSD Regulations are supported by a strong team of world-renowned experts, robust scientific evidence and extensive evidence from elite athletics (please see the Explanatory Notes to the DSD Regulations here: https://www.iaaf.org/news/
The right to participate in sport does not translate to a right to self-identify into a competition category or an event, or to insist on inclusion in a preferred event, or to win in a particular event, without regard to the legitimate rules of the sport or the criteria for entry. It is legitimate for all sport in general, and for the IAAF in particular, to create a protected category for females and to base eligibility for this category on biology not identity. Any other definition would be category defeating and would deter girls the world over from choosing competitive and elite sport after puberty.
The IAAF is committed to the full participation of women in the sport of athletics, be that as elite female athletes in fair and meaningful competition, as young girls developing life skills, or as administrators or officials. Regrettably, it was not so long ago that women were not permitted to compete in sport at all. There is a lot of work to be done, but the IAAF is at the forefront of that work. Indeed, the IAAF is one of the only international sports federations to pay women and men equal prize money. It is one of the IAAF‘s core values to promote and achieve equal treatment and opportunity for women and girls in athletics. I look forward to working with you to achieve that goal.