LANE ONE: IOC introduces “framework” on transgender and hyperandrogenism in women athletes, but no rules and no timetable

From the IOC presentation of its "Framework on Fairness, Inclusion and Non-Discrimination on the Basis of Gender Identity and Sex Variations” (Courtesy of the IOC)

“I think we can clearly say: we have not found the solution to this big question which is out there. But what we have tried to do is to outline a process which helps International Federations to set eligibility criteria and to find solutions. And we will continue helping them doing that work but clearly, this is a topic which will be with us for a long time.”

That’s a good summary from International Olympic Committee communications director Christian Klaue (GER) of the new “IOC Framework on Fairness, Inclusion and Non-Discrimination on the Basis of Gender Identity and Sex Variations.” Introduced at an online news conference from Olympic House in Lausanne (SUI), the six-page document outlines principles to be used together to help each International Federation come up with eligibility rules that “protect” the female category. The primary principles include:

1. Inclusion
2. Prevention of Harm
3. Non-Discrimination
4. Fairness
5. No Presumption of Advantage
6. Evidence-Based Approach
7. Primacy of Health and Bodily Autonomy
8. Stakeholder-Centered Approach
9. Right to Privacy
10. Periodic Reviews

What does this mean in practice, right now?

Not much.

Said Kevah Mehrabi (IRI), the IOC’s Director of the Athlete Department:

“We want to make sure that the process is done appropriately and thoroughly and one is not jumping to conclusion without having enough evidence and knowledge for defining the eligibility criteria. Again, from sport to sport, the work that has been done is quite different and … many sports already have done a lot of research. So if they feel they have enough to revise or introduce eligibility criteria before Paris 2024 qualification, that’s fine. If they feel like they need to go through a longer process to make sure that they get it right, that’s also fine.

“We want to make sure that the process is done properly and not forcing a conclusion because of a specific timeline.”

Pressed further, Mehrabi also noted:

“The Framework is not legally binding, to go into the core of it. … I think it’s a process that we have to go through with each federation on a case-by-case basis and see what is required.”

The major change in the IOC’s thinking from its’ 2015 guidelines that specified a 10 nmol/L testosterone limit for transgender or athletes with differences in sex development is a sport-specific, or even event-specific inquiry by the International Federations into what is needed to ensure a “level playing field” in the women’s category.

IOC Medical Director Dr. Richard Budgett (GBR) said it plainly:

“It is perfectly clear now that performance is not proportional to your endogenous – your in-built – testosterone. … What we’re really interested in is the outcome, and what this does is change the process to getting that outcome of performance.

“There was an agreement amongst many of us in sport that 10 nmol/L was probably the wrong level if you’re looking at testosterone anyways. Many sports have moved on from that, and gone to different levels, and what we’re saying now is, ‘you don’t need to use testosterone at all.’ But this is guidance, not an absolute rule. So we can’t say that the framework in any particular sport be it World Athletics or another is actually wrong. They need to make it right for their sport and this Framework gives them a process by which they can do it, thinking about inclusion and then seeing what produces disproportionate advantage.”

The hour-long presentation and discussion showed that the mindset of the IOC’s presenters was more on transgender athletes than athletes with naturally-elevated levels of testosterone (so-called “differences in sex development”).

Katia Mascagni (SUI), the IOC’s Head of Public Affairs, explained the change in the process this way:

“But rather than looking at defining who is a woman and who is not a woman, it will be actually looking at where there is a history of performance of an athlete who is competing in the female category, where she’s actually generating concerns in terms of a disproportionate advantage that she would have, for instance, and then, therefore, then look into that to determine where there is an unfair performance for that athlete, and therefore determine whether if that athlete would be entitled to compete or not.”

So, essentially, it’s only when an athlete – like South Africa’s double Olympic 800 m winner Caster Semenya – shows she’s extraordinarily good that sports federations should be concerned? Does that then lead to retroactive disqualifications – not contemplated in the Semenya case – for “unfair” outcomes that were “fair” at the start of a race?

These questions were not answered, nor will they be by the IOC, which has only set out a set of principles which the International Federations will be required to wrestle with on their own. The IOC did note that federations can ask for help with research funding.

Mehrabi did underline what the IOC wants to see eliminated:

“[P]olicies that requires [women] to modify their hormone levels to compete lead to serious problems in their health. So, again, instead of requiring unnecessary and potentially harmful treatment, we need to engage from an angle and simply find ways to understand what is an unfair disadvantage and include all [women] on that basis without requiring extra, unnecessary treatment.”

That would suggest that the World Athletics approach to Semenya and others is wrong.

However, Magali Martowicz (GBR), the IOC’s Head of Human Rights also stated:

“[W]hile it’s not about [and not] intended to accept all athletes – an exclusion can still happen – what we have to really ensure is that process, this fair process, is non-discriminatory in its nature.”

An evidence-based approach is considered essential, and a simplified system of “gender verification” is clearly frowned upon.

This is a start, and the IOC acknowledged that its efforts in this area since 2019 have produced no clear answer for all sports, or even all events within a large sport like athletics, cycling or aquatics. With the Framework to be “rolled out” in 2022, look for a lot more studies and a lot more activists asking the IOC to intervene with federations – like World Athletics – whose regulations, no matter how deeply researched, keep anybody out.

Rich Perelman

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