The complexities of gender verification: Legal, medical and performance dilemmas
I thought I'd interrupt the weight management series for a day to cover very briefly the news being reported out of Miami, where a panel of medical experts met to discuss the complexities around gender verification. The meeting, convened by the IOC in response to the huge controversy over Caster Semenya's win in the IAAF World Championships last year, addressed how authorities manage the minefield of equality of competition vs the rights of individuals and the medical concerns over such conditions.
It turns out, however, that fairness of competition didn't feature. That's according to one delegate, Joe Leigh Simpson. His words: “We did not address fairness. The entire concept was that these individuals should be allowed to compete.”
And the means to compete, according to news reports, is to treat the condition medically and not from the point of view of performance. That is, if they wish to compete as females, but have a condition which gives them masculine characteristics, they should seek a diagnosis and treatment. “Those who agree to be treated will be permitted to participate,” said Dr. Maria New, a panel participant and an expert on sexual development disorders. “Those who do not agree to be treated on a case-by-case basis will not be permitted.”
If this is the agreed upon approach, then fairness is very definitely an issue. One cannot be forced into medical treatment as a condition for participation, surely? The only reason to make medical treatment compulsory is to ensure fairness of competition, and so while delegates may say fairness was not an issue, it has to have been.
Other delegates have challenged this on the basis of fairness. The previously mentioned Dr Simpson admitted that the guidelines would be deemed unfair by some female athletes, but that “we have to balance fairness to female athletes to fairness to other competitors."
The question is, does the right to compete with a possible advantage as a result of masculinization trump the right to fair competition for those without it? Whose rights are more important, because balancing fairness requires that somebody assign a value to each side's arguments.
And legally, if an athlete decides not to seek medical treatment, can they be excluded from competing, unless some very clear guidelines are developed for how potential performance advantages can be evaluated. Can medical treatment be bartered against competing? As I see it, the only way this would be feasible is if athletic competition with such a sex ambiguity poses a risk - then authorities could say that they do not wish to be party to the increased risk and deny the athlete the right to participate. The risk of having such a condition alone would not entitle the IOC to ban an athlete, surely?
This discussion may in fact be happening as we speak, with Caster Semenya's lawyers and the IAAF locked in negotiations. Part of that discussion may involve terms for return to competition, and whether medical treatment is a pre-requisite.
As we've learned over the last few months, this is an incredibly difficult issue, with no obvious solution. Regardless of which way you swing, there are going to be winners and losers in the debate - someone is either excluded, or large numbers of athletes are possibly disadvantaged.
My personal opinion agrees with that of Doriane Coleman, a law professor at Duke University, and a former elite 800-meter runner. “If you start to do this you are making a joke of the fact that there are two classifications — male and female. They might as well open it up and have women competing with men.”
But that's because my paradigm is performance, advantage and fairness. Unfortunately, it's never quite that simple.
I'll get back to other "weighty" issues next week - feeling rather burned out at this stage, I must confess. Luckily the year is nearly over...