Originally posted on the Gender & Sexuality Law Blog, Columbia School of Law.

As Mai
Ratakonda recently noted
last Wednesday, the International Olympic Committee announced the recommendations
of a panel of "experts" on
the manner in which the Olympics should "handle" persons with "Disorders of
Sexual Development." They concluded that the IOC should approach female
athletes whose sex has been questioned, treat them as having a medical
disorder, and they will be referred to special clinics for diagnosis and
treatment, or as they call it, "management." The recommendations address
Olympic athletes whose "true" sex is called into question because they deviate
from a socially determined female norm. The meeting of experts was convened by
the IOC in response to the Caster Semenya case. (An earlier blog post addressed Semenya.)

The
recommendations raise a number of problems. First, it seems that for athletes
who wish to compete in the female division and who have had their "sex"
challenged, they will have to agree to examination and treatment in order to
remain eligible. "Those who agree to be treated will be permitted to
participate," said Dr. Maria New, an IOC hired panel participant, an expert on
sexual development disorders, and a controversial figure in the intersex world
insofar as she has been a strong advocate for genital surgeries for babies born
with "ambiguous genitalia."

"Those who do not agree to be treated on a
case-by-case basis will not be permitted" to compete. Dr. New suggests that the
best first step in identifying and treating athletes of questionable sex is
that "photographs of [those] athletes [be sent] to experts like her. If the
expert thinks the athlete might have a sexual-development disorder, the expert
would order further testing and suggest treatment."

Imagine,
for a second, how this will work: a world-class athlete, such as Caster
Semenya, will have her female credentials questioned by another athlete —
likely someone who just lost to the athlete whose female-ness is being
questioned. That athlete will then have to remove her shorts, have her genitals
photographed, and then have those photos sent to Dr. New for review. Applying
what seems like a "know it when you see it" standard of abnormality, Dr. New
may then determine that the athlete be further tested and treated/managed for
her "Disorders of Sexual Development" as a condition of further eligibility in
IOC-sanctioned competition. This new procedure creates a climate whereby female
athletes who run too fast, throw too far, or jump too high "for a woman" stand
likely to have their sexual identity challenged, thereby exposing themselves to
the humiliation of genital photography and the shameful suggestion that they
are freaks. Look what happened to Caster Semenya and Santhi Soundarajan who endured a similar sexual
inquisition and attempted suicide as a result to know where this is leading.

Second, as
if the privacy and shaming of the IOC panel’s recommendations weren’t enough,
this new approach to policing the boundaries of women’s athletics smacks of sex
discrimination. Many of the world’s top athletes have some physical
"endowments" that explain, at least in part, their advantage over competitors.
Take Michael Phelps, who won an amazing eight gold medals in the last Olympics.
Swimming fans are in awe of Phelps’ disproportionately large "wing span"
(basically, really long arms), the fact that he is double jointed, and has huge
feet.

"His size 14 feet reportedly bend 15 degrees farther at the ankle than
most other swimmers, turning his feet into virtual flippers. This flexibility
also extends to his knees and elbows, possibly allowing him to get more out of
each stroke," wrote Scientific America in a special story
on Phelps’ physical endowments.

Phelps isn’t seen as having a joint
or foot "disorder." He isn’t forced to have pictures taken of his body that
will be reviewed by medical experts who apply a loosey-goosey standard to
evaluate whether he needs treatment in order to make him more normal, and
thereby allow him to continue competing. No, he’s just built for his sport in
ways that give him enormous advantages over the average person. We stand in awe
of him, not in judgment.

Only those
endowments that are regarded as sex-related trigger an investigation into
whether a female athlete is eligible for competition in a women’s division. But
who’s to decide which are and which are not "sex-related?" Consider Lance
Armstrong’s exceptionally large lung capacity and low heart rate which are
looked to to account for his unbelievable success in biking (doping allegations
aside). Not only are his physical advantages not treated as disqualifying, his
body has been transformed into a lesson plan for high school biology classes.

But
maybe he should be referred to the sex police. Research shows that females demonstrate a somewhat
different and better pattern of cardiac adaptation to exercise than do men, and
as a result have better oxygen extraction by their working muscles due to greater
capillarization and more mitochondria. So, in effect, Lance Armstrong’s body is
more "feminized" as compared with the other male competitors. But you don’t see
him getting called out for being insufficiently male and from having an unfair
advantage over the other men in the Tour de France because his capacity to
process oxygen is more typical of female than male athletes, do you? His
endowments are not seen as sex-related, they’re just the envy of top cyclists.

Hmmm.

So too,
small male jockeys or petite male coxswains aren’t seen as cheaters (girly men
competing in male sports) in the same way that Semenya was. Yet their light,
lithe bodies are prized in their sports precisely because they are smaller than
the average man. No sex police here.

Men, it
seems, can compete under the influence of abnormal hormonal levels or other
body functions so long as they use what "god gave them," but women, it seems,
may not. As Alice Dreger recently
commented on the new
recommendations:

That,
then, raises the apparently unconsidered question of why athletes competing as
women would be subject to such androgen-capping, while athletes competing as
men are not (unless they dope). If we women naturally make all those same
hormones — and we do — why do the guys get to keep all they naturally make, and
we don’t?

Good question. And it
raises a serious suggestion of sex discrimination in athletics.