Who Counts as a Woman? The Court of Arbitration for Sport Provides an Answer

In late July, the Court of Arbitration for Sport (“the court”), the final appeals court for global sports, suspended the practice of “hyperandrogenism regulation” by the International Association of Athletics Federations (“the I.A.A.F.”), the governing body of track and field. The court ruled that a woman’s having a high level of natural testosterone in her body is insufficient grounds for barring her from competing in women’s athletics. Questioning whether a naturally high level of testosterone truly gives a person an athletic advantage, the court gave the I.A.A.F. two years to provide more convincing evidence establishing a link between “enhanced testosterone levels and improved athletic performance.”

This ruling represented a victory for Dutee Chand, a female sprinter who had challenged the maximum testosterone level as effectively compelling healthy female athletes to undergo unnecessary surgical or medical interventions to meet an artificially limited definition of who “counts” as a woman for purposes of athletic competition. In this column, I will examine the benefits of Chand’s victory along with some potential downsides of permitting women with naturally high levels of testosterone to compete in women’s sports. A look at the so-called “endowment effect” in behavioral economics may provide insights into the ways in which we think about the relationship between what is natural and what is artificial in the context of human traits and capacities.

The Case

The case under consideration here began with an I.A.A.F. rule providing that women having an elevated testosterone level well beyond the top percentile of women in the general population are ineligible to compete against other women. After undergoing invasive anatomical and hormonal scrutiny, and upon learning that she was ineligible for track and field competition on this ground, Dutee Chand—India’s 100-meter champion in the 18-and-under category—could have undergone surgery that would have reduced the amount of testosterone produced by her body. She could, alternatively, have taken hormone-suppressing drugs that would have had the same effect. The reason for the rule was the view, supported by some evidence but not universally accepted, that testosterone enhances athletic performance and that it would accordingly be unfair to women within the ordinary hormonal ranges to have to compete with women who produce an elevated level of testosterone, thereby generating the sort of performance that only men can ordinarily achieve.

To better understand the concern about testosterone, it is useful to remember why we divide Olympic sports and other organized athletic pursuits by sex in the first place. Unlike scholastic endeavors, in which males and females can compete as equals, men at the highest levels of athletic competition outperform women at the highest levels, and the difference appears to be a matter of biology rather than exclusively one of cultural differentiation. If men could compete in women’s sports (and women in men’s), the foreseeable result would be an arena in which virtually no women would be able to participate.

By virtue of their sex, men have a significant advantage over women that would translate into women’s exclusion from most college and professional sports, as well as from other competitions, including the Olympics, if athletics were integrated by sex. Separating men from women is, accordingly, a means of providing women with the space to participate in sports that might otherwise exclude them. Unlike in the racial context, “separate but equal” is understood as a necessary path to gender equality in sports competition.

Hormone Levels

Let us assume that testosterone represents an important component of what allows men to build greater muscle mass, run faster, and compete more effectively in sports (though the court’s ruling appears to call that assumption into question). It follows from this assumption that testosterone, when used by athletes, is a performance enhancing drug (which it, in fact, is, under the rules). Men and women alike may accordingly be disqualified from competition if they are caught “doping” with androgens, because such artificial infusions of testosterone interfere with athletes’ natural endowments and potentially create an unfair advantage in competition.

When a person takes a dose of testosterone (or any other performance-enhancing substance), it is easy to identify that act as unfairly altering the playing field. In particular in the case of women’s sports, the injection of testosterone can undermine the reason for having a separate sphere of competition for women: it may re-create the male/female imbalance, but this time between the competing women themselves.

More difficult is a case like Dutee Chand’s, where no one has injected any external substances, but the woman in question naturally produces much more testosterone than her female peers. In her case, providing an allowable hormone level range amounts to the exclusion of a healthy athlete from competition simply because she does not fall within the range of hormone levels ordinarily found in women. Alternatively, if the woman is dedicated to participating notwithstanding such a rule, she will need to undergo elective surgery or drug infusion that in no way enhances her health, just to lower her levels so that she can compete.

Caught between a rock (exclusion) and a hard place (unnecessary and invasive surgical or medical interventions), Dutee Chand chose instead to go to court and to argue that she was born female, that she remains female, and that her particular hormone level reflects the fact that sex is a spectrum rather than the fixed binary division that many imagine it to be. The book Middlesex, a fascinating novel about people who are intersex (once known as “hermaphrodites”), eloquently makes a similar point about the attempted suppression of such ambiguously gendered individuals.

Another Side

The problem we create, however, by declaring that people born female qualify as women despite their naturally high testosterone levels is that it may exclude from competition, by implication, those women who were born with an assigned sex or chromosome makeup that does not match their own experience of their gender. That is, it may exclude transgender women from the category of “women,” for purposes of athletic competition. A transgender woman likely was born with XY chromosomes and probably has relatively high levels of testosterone in virtue of her biology and its mismatch with her identity. She may at the same time have physical advantages, in terms of strength, speed, or muscularity, over women born into female bodies and assigned the female sex at birth. Is their exclusion fair? Is it fairer than the exclusion of women born as women with the same competitive advantage?

In terms of public sympathy, Dutee Chand may get mileage out of the fact that she was born female. We may empathize with her predicament because she has owned her femaleness from her earliest age. This means that taking this away from her, by ruling that she falls outside the category of “female” for purposes of track competitions, amounts to taking away something that has been hers her whole life. By contrast, the transgender woman has likely had femaleness as a recognized feature of her identity for a much shorter time. Taking it away from her may thus seem like less of a deprivation.

There is a phenomenon identified in behavioral economics as the “endowment effect,” whereby people consider things that they already own to be about twice as valuable as the same things that they do not yet own. This creates another seemingly irrational phenomenon known as “loss aversion,” whereby people are much less willing to give up something that they already own than they are to forgo the receipt of the exact same something that is not yet theirs. Professor Michael Dorf and I, in our forthcoming book, Beating Hearts: Abortion and Animal Rights, argue that there may be a moral component to the endowment effect, such that our moral intuitions tell us that someone who already owns something (or has owned it for some period of time) has a greater entitlement to keep it than does someone who has yet to own it or to acquire it in the first place. If entitlements correspond to ownership in this way, then it may make sense to preference Dutee Chand’s claim of femaleness over the claims of someone who only recently (relative to her date of birth) announced that she is transgender.

In my view, though we might perhaps preference Chand’s claim (or we might not, because a transgender individual may have known that she was truly female just as early as Chand did), it might make more sense not to choose between them. We could instead replace male/female divisions in athletics with something else. We could, for example, acknowledge that there are two distinct levels of competitive ability that roughly correspond to sex (or at least to assigned sex at birth). Rather than dividing competitions into “men’s” and “women’s” sports, though, we might designate two such levels and provide that some amount of strength and muscle mass places a candidate outside the first (roughly female) level and requires him or her to compete in the second (roughly male) level.

In this way, we could have one team that would generally be made up of men but might have a few women on it (whether transgender or hyperandrogenic or simply far stronger, faster, and more muscular than women ordinarily are) and a second team that might have a few men on it but that would generally be made up of women. Though imperfect, such an approach could spare people the humiliation of the sorts of anatomical examinations, hormone level checks, and other invasive procedures intended to suss out a supposedly binary divide between men and women, a divide that in truth looks a lot more like a spectrum than many of us may presently be prepared to acknowledge.