It was never about “fairness”, it was about control; or: Why I’m deeply concerned about the new World Aquatics eligibility policy
By Sheree Bekker (FSL and University of Bath)
First published in 2022. Republished here with permission.
[Content note: sexual abuse in medical and sports settings; sex testing]
I am a swimmer. Not many people know this, but I swam at national level in South Africa in the afterglow of golden girl Penny Heyns. I loved watching the Thorpedo swim. And swimming is still the main sport I watch today.
But, mostly, swimming is my happy place. That black line is my meditation. A few years ago when I left Australia burnt out and run down, I took to the pool. It was a 20 meter pool in a tiny gym, but that space built me up again. It always does.
To think that if I wanted to swim at a World Aquatics sanctioned event as of Monday (20 June 2022), I’d potentially have to undergo medical testing (including genital examination) for the purposes of participation – medical testing that is inappropriate, subject to false interpretation, and an invasion of my personal privacy – is deeply concerning to me. And it should be for us all.
This is not how we make sport more welcoming for girls and women. Indeed, Frankie de la Cretaz has written about how this invasive sex testing (that is, genital examinations) normalises eroding the bodily autonomy and privacy of girls and women in sport, and how this is connected to the potential for sexual abuse. In a sport (and wider sports system) that has a massive problem with the sexual abuse of girls and women – and who can forget Larry Nassar perpetuating years of sexual abuse under the guise of medical treatment – this is egregious.
The new World Aquatics policy, rather than making sport safer, places girls and women at risk.
So let’s dig into it.
On Sunday 19 June 2022, World Aquatics (the international federation recognised by the International Olympic Committee for administering international competitions in water sports) voted through a new “Policy On Eligibility For The Men’s And Women’s Competition Categories”.
According to World Aquatics, this policy exists ‘to establish eligibility criteria to regulate the participation of transgender and 46 XY DSD athletes in the men’s and women’s categories in Aquatic sports that are consistent with FINA’s mission and core commitments.’
But what does the policy actually say?
In a nutshell, this policy requires:
That *all* athletes undergo a chromosomal test to “certify their chromosomal sex”, and
For those athletes who fall under further scrutiny, the potential for further medical assessment. This medical assessment requires not only testosterone level testing but also a subjective battery of tests, including an assessment of development beyond Tanner Stage 2 and/or signs of whether the athlete’s body can actually use Testosterone, and pubertal development.
Sounds simple and appropriate, right? But what does this actually mean, in practice?
Chromosomal “sex” testing
Chromosomal “sex” testing sounds like a simple, easy, and effective approach. Indeed, I have seen a few people on Twitter say that this is ‘a simple cheek swab’ that is ‘performed only once’. And yes, this is the case for the vast majority of people who will undergo chromosomal testing for the purposes of determining whether they have XX or XY chromosomes.
And according to World Aquatics, XX determines eligibility for the women’s category, and XY for the men’s.
What is being left out of the story here, though, is the reason why this form of testing was phased out by the International Olympic Committee in the 2000s: it isn’t always that simple or straightforward.
Yes, you read that right, the IOC has tried chromosomal testing before but it was abandoned for being unreliable.
As Professor Roger Pielke Jr wrote in his piece on chromosomal testing:
‘In 2005 the head of the International Olympic Committee’s (IOC) Medical Commission wrote of chromosome sex testing of women, “genetic screening for female gender in sport is history, saving a lot of embarrassment—and money.” The IOC decided to abandon chromosome testing for good reasons — it didn’t work, was a public relations nightmare and female athletes objected.’
Indeed, in 2000, Professor Myron Genel stated that:
‘In reality, gender verification tests are difficult, expensive, and potentially inaccurate," and that “these tests fail to exclude all potential impostors, are discriminatory against women with disorders of sexual development, and may have shattering consequences for athletes who 'fail' a test.’
This is because chromosomal tests look for an inactive X chromosome. This explainer here tells us that ‘[w]omen usually are born with two X chromosomes and the second is inactivated and appears like a small dot in the nucleus of the cell. In men, who have XY chromosomes, there would be no such evidence in the cells.’
However, this is complicated for women with Turner Syndrome, for example, who ‘only have one X chromosome and so would not show the tell tale sign in the cell nucleus.’
‘Still, they are unequivocally female, but if they took the test, they would fail.’ Professor Genel goes on to say.
Other women who are assigned female at birth, but who might have X and Y chromosomes would also fail the test. We have seen this play out in athletics, where Human Rights Watch has documented this, and the resultant extensive human rights abuses in sex testing of women athletes in this damning report.
But let’s not forget about men caught up in this too. Professor Genel explains that the irony is that there are ‘men with Klinefelter's Syndrome have two X chromosomes and one Y chromosome. They very typically have small testes and are infertile, yet they would have passed the test as women because of the extra X chromosome.’
This all this becomes a complication for sports bodies like World Aquatics who seek to separate categories into women and men according to XX and XY chromosomes.
Because of this unreliability, World Aquatics had to include provision for the second part of their eligibility criteria: medical examination.
In their policy, this is composed of three elements: blood testosterone level testing and limits, an assessment of whether the athlete’s body can use that testosterone (because not everyone’s body has the ability to do so), and an assessment of pubertal development using the Tanner Scale.
Let’s look at each of these in turn.
Blood testosterone level and limits
World Aquatics has set a new limit on blood testosterone levels at 2.5 nanomoles per litre of blood. We saw this limit being introduced by UCI (the international governing body for cycling) very recently too. And this new limit is down from the 10 nmol/L we saw from the IOC in 2016, and 5 nmol/L from World Athletics in 2018.
The trouble with this is, as Professor Cara Tannenbaum and I wrote in the British Medical Journal (The BMJ) in 2019, and I later explained further in The Conversation, is that these limits are set arbitrarily:
‘[I]n non-athletes, testosterone ranges between 0.4-2.0nmol/l in girls and women. In elite women athletes, the testosterone range has been shown to be between 0.4-7.7nmol/l, and that women can and do have much higher levels than that, which can also overlap with men’s ranges.
So an arbitrary 5nmol/l limit for women could have the effect of capturing and regulating a much larger group of female athletes than intended, including women with polycystic ovarian syndrome (who naturally have high levels of testosterone).’
World Aquatics and UCI moving down to 2.5 nmol/l will now unnecessarily capture an even larger group of women with high testosterone.
It is important to state here that testosterone is not the ‘elixir of performance’ as may would have us to believe. As Drs Rebecca M Jordan-Young and Katrina Karkazis explain here, ‘Don’t let sports competitions be shaped by misguided “T Talk”’. Testosterone is not the “master molecule of athleticism’. High natural testosterone levels does not translate into medals.
In addition, there are people who’s bodies cannot use testosterone, even if they do have high blood testosterone levels.
So to mitigate for this, FINA has to include an assessment of whether a relevant athlete’s body can use testosterone. And this is where it gets even more concerning.
Androgen (testosterone) sensitivity assessment
Assessing for androgen (testosterone) sensitivity, rather than being a scientific test, is a much critiqued subjective process. There is no reproducible, valid laboratory test for this.
Therefore, this assessment involves, for example, a gynaecological exam and radiological imaging for the purposes of determining the development of reproductive organs and secondary sex characteristics. In other words, this involves a doctor assessing and measuring the development and size of the clitoris, breasts, and pubic hair, against a subjective scale (the Tanner Scale, which I discuss below). It may also include radiological imaging of internal organs.
These assessments, particularly that of clitoral size, are widely viewed as “inappropriate, subject to false interpretation, and an invasion of personal privacy”.
The mere suggestion that girls and women in particular should have to undergo these genital checks to participate in sport should be a concern to us all. FINA mandating this is outrageous.
Tanner Stage 2 assessment
Finally, the World Aquatics policy mandates an assessment of whether an athlete (trans girls and women in particular) has undergone any part of what they call ‘male puberty’. This shift to a focus on ‘male puberty’ is a new one, representing a shift away from testosterone levels alone (seemingly because the use of testosterone as a proxy for advantage has been widely critiqued).
The way they intend to assess this is via the Tanner Scale.
The Tanner Scale is again a much critiqued subjective scale in which physicians assess external primary and secondary sex characteristics such as the size of the breasts and clitoris, pubic hair, and, relevant to trans girls and women, testicular volume.
Tanner Scale
Tanner Scale
Illustrations by : Michał Komorniczak (Poland) CC BY-SA 3.0
It should come as no surprise that Tanner Scale assessment is not reliable, and open to subjectivity. Similarly with androgen sensitivity assessment above, it is also widely viewed as inappropriate, subject to false interpretation, and an invasion of personal privacy.
As Professor Celia Roberts has shown:
‘The history of the Tanner Scale – it’s troubling entangling of children, photography and sex – raises both important conceptual questions about the nature of sexual development and ethical concerns about how it should be studied.
Rather than a neutral scientific tool, the Tanner Scale is a significant actor in the making of modern sexed bodies.’
Eroding the medical and personal privacy and bodily autonomy of young people (in particular, but of course anyone who comes under scrutiny through this policy) who want to participate in sport by subjecting them to this kind of medical assessment should be a red line for us all.
Sports have now shifted the goalposts to assessing whether or not someone in the women’s category has undergone “male puberty”, but make no mistake, this approach and concept is just as nebulous, subjective, and highly critiqued and disputed as the approaches that came before it. It remains a deeply problematic ‘nude parade’ under the guise of scientism and medico-legal language.
As Sharda Ugra writes:
this ’escalates…“eligibility regulations for female classification” from medico-scientific decoy into what it really is: the abuse of the rights of women athletes to privacy, dignity & health.’
The wider context
It is not hyperbole to say that the ever-widening net and shifting goalposts of these types of eligibility policies should be of major concern to us all.
Indeed, in 2019, Dr Anna Posbergh and I predicted this move in BMJ Opinion where we wrote that World Athletics, in regulating women athletes:
“shifted the goalposts in changing the wording of the policy to focus exclusively on 46XY females (this was not specified in the 2018 iteration of the policy, likely due to issues of confidentiality given the small number of athletes who may be part of this group).
This places the focus of this regulation on an even smaller group of vulnerable women with variations of sex characteristics. Further, it is of concern that this shift now potentially sets the scene for ‘necessary discrimination’ against women who are transgender and their future regulation in sport.”
What we didn’t predict explicitly, but what is of great concern now, is that allowing the regulation of some women in sport, paves the way for the regulation of all women in sport.
We are currently seeing the rapid and terrifying rise of anti-trans legislation in the USA which includes precisely the kind of sex testing I describe above, for all sports participation:
We also know that these policies have gendered, racialized, and ableist outcomes. It is inevitably Black and Brown women (particularly those from colonized nations) who are most likely to be excluded from sports (and increasingly other settings, such as bathrooms) under these policies because they do not conform to Western, White ideals of femininity.
This image here really struck me as an excellent example of how "...‘safety’ is part of a wider protectionist politics around (cis) women’s bodies that function to protect idealised notions of white female vulnerability” (Patel 2017 and Koyama 2020 as in Pearce et al 2020)
This policy ultimately polices the purity of who ‘gets to be’ a woman and a man, and what a woman and man should be (because it’s always about maintaining a strict white supremacist cishet binary for those in the business of policing bodies, and thus society).
And it was never about ‘fairness’, it was about control.
It is really important to recognise that presence and existence of trans women and girls in sport does not hurt cis women and girls.
It is the policing and exclusion/segregation of some women and girls that ultimately hurts all women and girls.
We are all connected.
***
Footnote 1: World Aquatics has suggested that it will look into an ‘open’ category for those who do not neatly fit into their regulations for the women’s and men’s categories. This, again, appears a simple and neat ‘solution’ but in reality is segregation by another name, othering, and sends the message that those athletes are not welcome in ‘real’ sport. Equal funding, resources, and support are also highly unlikely to be forthcoming.
Footnote 2: Like World Rugby's guidelines, the World Aquatics policy is unenforceable in many nations worldwide, including Canada and South Africa, legally and constitutionally.
Footnote 3: World Aquatics has stated that trans women who ‘completed’ transition before the age of 12 or Tanner Stage 2 (whichever comes first) and who suppress testosterone will be eligible for the women’s category. This has two major concerns:
1. This betrays a complete lack of knowledge about what transition is and means. As Dr Abby Barras so beautifully shows in her research here, there is a real tension in linear narratives and non-linear experiences of transition and sports participation.
2. This mandate to reduce testosterone to low levels also places trans women into a state of androgen deprivation for the purposes of sport, and as Kristen Worley consistently points out, this is contrary to medical care, and the long-term effect of this has devastating health impacts for trans women.