The problem: women with testes?

These kinds of women should not run with us….For me she is not a woman. She is a man1

In 2009, Caster Semenya, an 18-year-old South African, won the women's world 800 m world title by two and a half seconds. Almost immediately some of the other competitors called her victory into question, claiming that she was a man.2 Caster underwent medical investigations, the results of which were not publicly disclosed. She was not permitted to compete in any other events by the International Association of Athletics Federation (IAAF), the governing body for track and field athletics, until July 2010 by which time she had presumably been fully assessed and received whatever medical therapy was considered necessary.3

It is considered a point so obvious as to be beyond argument that humans are sexually dimorphic and that distinguishing between individuals of different sex is a simple matter. However, like Caster Semenya, many individuals are not easily categorised into one of the two sex groups. For example, in 2012, four athletes competing as women were found to have testosterone levels in the male range during routine drug testing.4 On further investigation, these women were found to have a ‘male’ set of chromosomes (46, XY) and functional testes. They have what is regarded medically as a Disorder of Sex Development, sometimes referred to as intersex.5 Specifically, these four individuals were found to have a distinct medical condition known as 5α-reductase deficiency, in which some (though not all) areas of the body lack the enzyme needed to activate testosterone. Therefore, despite the presence of testes, they develop some male anatomical features and some female features. In this condition, known as partial androgen insensitivity syndrome,4 individuals are frequently born with female-appearing external genitalia and may be brought up as females. They are, therefore, women with testes. In this paper, I will make the assumption that a person who self-identifies as a woman is a woman. While I acknowledge that the question as to whether self-identification is a sufficient criterion for membership of the female sex or gender is a substantive one that is currently the subject of much debate in ethical, legal, political, sociological and other academic discourse, this complex topic is outside the scope of this short paper and will not be discussed further.

The actual prevalence of intersex is uncertain, with estimates varying between 0.018% and 1.7% of the population.6 Therefore, when routine ‘gender’ verification was attempted in international athletic competition, the International Olympic Committee (IOC) encountered difficulty. The major rational of testing was to identify men masquerading as women as a means of cheating.7 Testing was routine from the 1960s to the 1990s.7 Methods used included appearance of the genitalia,2 chromosomal tests8 and tests for a gene closely associated with the development of the testis.7 All the methods used identified some individuals who were competing as women but whose test gave a ‘male’ result. At least some of these athletes may have been women with functional testicular tissue. As research has progressed, it seems that sex development is a highly complex matter, with many points at which there might be variation. There are multiple genes that play a role in the development of an individual's sex. Rosario suggests that there are at least “a dozen or more genes, each conferring a small percentage likelihood of male or female sex that is still further dependent on micro- and macro- environmental interactions”.8 Thus, there is no single or multiple set of biological parameters that confer a certain sex on an individual and it seems likely that many more people who do not fall easily into male or female will be identified, both within sport and in society in general.

It is not only intersex women who have testicular tissue. In England, under the Gender Recognition Act 2004 trans individuals do not have to undergo any medical or surgical treatment in order to achieve recognition in their self-identified gender. This means that individuals possessing the characteristics of one biological sex are able to identify themselves for all legal purposes as belonging to the opposite gender. Trans women will possess testes, unless they have had surgery.

Women with testes raise a fundamental problem in athletics—how do we decide who can compete as a woman? At the present time, women with testes producing functioning testosterone and whose bodies are able to respond to it are not permitted to compete as women. The IAAF9 and IOC10 recognise that such individuals are women and this, therefore, precludes them from competing as men; the regulations emphasise that athletic competition requires that competitors are divided strictly by gender11 ,12 into male or female and that this division must be respected.11 Therefore, an athlete identifying as a woman with testicular tissue producing functional testosterone will be unable to compete at all in elite competitions unless she fulfils the IAAF and IOC requirements.

The current solution to the problem

For the IOC and IAAF, intersex women9 ,10 ,13 and trans women11 ,12 can compete in the female group only if they have no functional testicular tissue.14 With regard to trans women, the IOC Medical Commission decided in October 2003 that those who undergo sex reassignment could compete in their assigned sex only if they have completed legal, medical and surgical reassignment, including gonadectomy, genital surgery and hormone therapy.12

In 2011, the IOC decided that any women found to have an abnormally high testosterone (and no resistance to androgens) or to show ‘male characteristics’ should be evaluated by a panel of experts before being declared eligible to compete as a woman.10 Women with testes and resistance to androgens (a condition referred to as complete androgen insensitivity syndrome) do not develop any characteristics associated with high testosterone and, therefore, are eligible to compete as women.10 If considered ineligible for competition, the athlete needs to fulfil conditions stipulated by the IOC or IAAF before being permitted to compete in women's events again. The exact conditions will depend on the findings of the panel. While gonadectomy for those with testicular tissue is not specified, this is presumably what is implied since it would be the only method of reducing testosterone to the level acceptable to the IOC and IAAF.

Is it unfair if women with testes compete as women?

In an attempt to achieve fairness, all sports are bound by rules. Those wishing to compete in that sport must agree to abide by them as a condition of taking part.15 While the need for rules in general is understood, the fairness and appropriateness of individual regulations can be challenged. Considering the rules concerning women with testes, Karkazis asks “does endogenous testosterone actually confer athletic advantage in a predictable way…?” and “If there is an advantage from a naturally occurring high testosterone, is that advantage unfair?”14 The theory behind sex segregation in athletics is based on the premise that there is an advantage and that this is unfair. The World Anti-Doping Agency has proscribed exogenous administration of testosterone,16 and the IOC says, with respect to endogenous testosterone,The androgenic effects on the human body explain why men perform better than women in most sports and are, in fact, the very reason for the distinction between male and female competition in most sports. Consequently, women with hyperandrogenism generally perform better in sport than other women.10

It is, therefore, part of the rules that high endogenous testosterone is not considered fair if the individual concerned is to compete as a woman. However, the hypothesis that women with testes have an advantage has not been subjected to close scientific scrutiny.17 High levels of testosterone may assist a predisposition to be faster and more powerful, but athletic ability depends on a much wider range of factors such as natural talent for the sport, genetic composition, personal interest and motivation, appropriate training, nutrition and so on. The potential benefits of a higher than normal level of testosterone may never be realised in the absence of these other factors.

What constitutes fairness in sport is also open to question. It depends, to some extent, on what the sport's purpose is held to be. Normative frameworks can broadly be classed as instrumentalist, performance and performer theories.18 Instrumentalist theories hold that sport serves an external purpose (political or economic, say) and, itself, has no independent moral framework. The morality of sport is, therefore, dependent on the external goals, which may or may not have a moral framework.18 The second type of theory, based on performance, holds that the value of sport is the continuing improvement of physical achievement by the constant edging forward of records.18 The ethical framework in terms of such a theory depends on a notion of fairness that emphasises precision in measurement and equality of external conditions.18 In ‘performance’ theories, constraints on physical enhancement or limitations on physical characteristics that assist performance may be considered undesirable19 and use of all available technology may be permitted. In this ethical framework, it is unlikely that women with high testosterone would be considered to be cheating. Rather, they would be considered to possess a potential advantage that may assist in producing a better performance.

Neither instrumentalist nor performance theories are considered to embody the ideals of sport expressed by the IOC and IAAF. Sport is considered to be an aspect of idealised human development for the individual performer and a way of “building a peaceful and better world by educating youth. Sport should be practised without discrimination of any kind and in the Olympic spirit, which encompasses friendship, solidarity and fair play”.20 Fairness is centred on equality of opportunity, but, as discussed by Henne, it is not entirely clear what Olympic spirit and fair play mean. The terms suggest deals of purity and naturalness for competing athletes, both of which are also difficult to define.21 As far as possible, individuals must have the opportunity to realise their potential and compete against those who are their equals.18 In this type of ‘performer’ theory, it is important that inequalities are compensated for as far as is possible. It is in this context that gender segregation is considered justified and that women with testes are not permitted to compete as women.18

Is it fair to impose gonadectomy on women athletes with testes?

The need to undergo castration and other surgical and medical intervention is imposed on those women with testes wishing to pursue a career in elite sport. This is not something required for those following most other careers. It can be argued that it is too great a demand. It means undergoing surgery with the risks and morbidity entailed by this. It could also mean sacrificing fertility as a male for a trans woman, although this is usually not the case for intersex women since testicular tissue in this context has typically lost fertility.22 There is a further problem with the demands made by the IOC on trans women. It is at least possible to see that there might be a reason for gonadectomy, but it is difficult to see how genital (ie, penile and scrotal, rather than testicular, surgery) could be seen as influencing performance. This does not have any effect on testosterone level, but the IOC requires that a trans woman athlete must undergo it before competing as a woman.12 As mentioned previously, the Gender Recognition Act 2004 does not impose medical or surgical intervention on trans women in order to be recognised as women.23 The fact that the IOC and the IAAF do require some sort of medical intervention for recognition is, therefore, at variance with the legal situation in some jurisdictions.23

It might be argued that the possession of testes is no different to many other physical characteristics. Individuals differ in all sorts of possible ways, and there are many other genetic differences that might confer advantages for physiological reasons.17 It will always be the case that those of smaller stature will be at a disadvantage in almost all athletic events in comparison to taller and larger individuals, but there is no attempt to try to nullify the effects of these variables between individual performers in an attempt to impose fairness. One might argue that it is simply not fair that someone as fast as Usain Bolt is allowed to compete at all. Or to use another example, many basketball players are freakishly tall or have large hands, but this is not usually regarded as a form of cheating24 or something that needs to be modified surgically before they can compete. Clearly these are physical advantages that assist the sportsperson in performance in his or her chosen field, but it seems that women with testes are regarded as more problematic, perhaps in part because their existence interrogates the generally held idea of a clear gender binary and contravenes the notion of what is “natural” for a woman.

Are there alternative solutions?

There are many reasons why it is important that women are able to compete in elite high-profile sports. As pointed out by Schneider,25 in many societies men dominate sport and cultural affairs in general. To limit women's participation in sport may only serve to increase this dominance.25 Female athletes can provide strong and inspiring role models in countries where women's freedoms are restricted. This is an important principle of the Olympic movement.26 If gender categories were to be abolished, a solution argued for by Tännsjö,27 and athletics involved the fastest and strongest competitors of either gender, this might mean that very few (or, perhaps, no) women would ever compete in the very high-profile events, such as the sprint races. Tännsjö points out that there are sports in which there is no sex segregation and women excel, such as the equestrian sport of dressage. The female dominance is not considered a reason to introduce a male-only competition.27 However, having less men competing in dressage is very different to making it near impossible for women to compete in sprint races.

Might it be possible to devise a system in which gender categories are abolished but in which athletes are streamed on the basis of some other biological character? Any biological parameter or combination of parameters could be used, such as height or weight or a combination of them. It might be possible to devise a system of having multiple categories, based on physical abilities and parameters, in a similar way to the system used in the Paralympics, where physical impairment is classed into one of eight groups.28 However, the argument against this system is that it would be complex to administer and would not guarantee women's participation.

Foddy and Savulescu have suggested that it cannot be just to use gender alone to stream athletes because, as we have already seen, high testosterone levels and male gender do not correlate exactly.29 Rather than stream people on the basis of whether they are male or female and making sure they fit into these categories as far as testosterone level is concerned, a logical alternative is to form the two groups on testosterone level rather than gender. The high testosterone group is likely to include most of those identifying as men, but also some individuals identifying as women with testes (both trans women or intersex women). The low testosterone group would most probably consist of most of those competing as women. Women with testes would be free to choose whether they wished to have gonadectomy or not. However, such a method is unlikely to be of any practical use. The advantage conferred by hyperandrogenism is complex and a single or a few measurements of testosterone in isolation may carry very little significance.14 Therefore, this solution is unlikely to offer any advantage and would have the effect of increasing the medicalisation of sport to a degree that many might consider unacceptable.

There is, however, a more feasible alternative proposal. Men and women could be permitted to compete in accordance with their self-identification, but gonadectomy for women who have testes might be voluntary, not enforced. There is no reason why testicular tissue and high testosterone cannot be seen as a potential biological advantage, just like any other, as discussed previously. The argument against this is that women with testes will be competing against women without testes and, as the argument goes, the women who have testes will be at an advantage and may dominate athletic competition. If it was found that women with testes were dominant, then there could be modifications to the system, perhaps by having separate groups for women with testes and women without testes.

Permitting trans women and intersex women with functioning testes to compete may assist normalisation and acceptance of different gender categories in society, analogous to the effect of the Paralympics with regard to disability. One aim of the Paralympic movement is to change perceptions of disability in society.30 A potential difficulty is that athletes may themselves wish to conform to a binary view of gender and be regarded as ‘normal’, not wishing, perhaps, to have the type of media attention given to individuals such as Caster. They may choose to have gonadectomy for other reasons. Many trans women may have a strong need to undergo physical gender reassignment as treatment for gender dysphoria. For intersex women, there may be medical reasons for removal of abnormal gonads31 and, indeed, health of the competing athletes is one of the reasons given by the IOC for identifying competitors with high testosterone.10

It may be that it would be perceived as so difficult to compete as a woman with testes that no one would chose to do so. The need to be perceived as normal is powerful, but, perhaps, we need to question why certain ‘norms’ are held in our society. There may be individuals who would be willing to act as pioneers, challenging the myth that everyone falls within a simple binary model of gender/sex and thereby lead a change in perception. If an athlete does choose to forego gonadectomy, then it is likely that this decision is a difficult one made following much thought and athletes making it should have their right to autonomy protected. There is evidence that this point of view may be gaining momentum in the case of sprinter Dutee Chand, bronze medallist in the 200 m at the 2013 Asian Championships. She was found to have a high testosterone and was banned from competition in 2014, but she has taken her case to the Swiss Court of Arbitration for Sport. The recent judgement has overturned this ban and has questioned the IAAF rules on hypergonadism in female athletics, giving that body 2 years to provide scientific evidence linking high testosterone to improved athletic performance.32