Why imposing the gender binary on athletes is a violation of human rights

News that the International Olympic Committee is considering mandatory gender testing and therapies to 'treat' intersex athletes is quickly starting to get some attention.

Andrea James has an excellent article in BoingBoing about Caster Semenya and the apartheid of sex—a term attributed to transhumanist Martine Rothblatt. James correctly points out that Semenya is being subjected to the latest "sex science" in order to fit her into our socially imposed gender binary, so that "the apartheid of sex can be upheld within the sporting tradition."

Indeed, fostering discussions of intersexed persons within the context of social tolerance and inclusion is not where the IOC wants to go. They have a problem on their hands because they are completely unwilling and unable to look beyond fixed male and female roles. Introducing new leagues or classifications that cater to these kinds of athletes would be far too uncomfortable and complicated for them to deal with. Insisting that there are only males and females simplifies things, and coercing these athletes into conforming to a gender-specific roles is a seemingly quick and easy fix.

Except for the fact that it may be a human rights violation.

I use the word coerce because intersex athletes like Semenya would likely have to undergo therapies should they want to compete. "Those who agree to be treated will be permitted to participate,” said Dr. Maria New, an IOC hired 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."

Some activists contend that this is a human rights violation, and they may be right. The intersex rights advocacy group Zwischengeschlecht.org certainly thinks so. They are condemning the IOC's attempt to re-introduce mandatory gender tests for female athletes via what they consider a back-handed channel. "We also strongly condemn IOC's notion of apparently blanket exclusion of "ambiguous" athletes, unless they agree to undergo potentially most harmful genital surgery and hormone treatments," they write in a recent press release. Zwischengeschlecht.org is demanding the prohibition of forced genital surgeries on intersexed people.

It also appears to me that the IOC is picking on intersexed athletes. The primary issue with these athletes participating as females arises from their increased testosterone production. Trouble is, however, not all women produce testosterone in the same amounts. In fact, some successful female athletes have a genetic abnormality in which they produce more testosterone than average females. Why is it acceptable for them to compete 'as is', but not for intersexed athletes? Should they be forced to undergo therapies, too? And if so, why should they be considered abnormal simply because they fall outside the averages?

Moreover, testosterone levels can change for women depending on a myriad of factors. Take Mary Decker for example. Decker was the 1983 world champion at 1,500 and 3,000 meters and once held every American women's outdoor record from 800 through 10,000 meters. In 1996 she was one of the athletes routinely tested by the United States Olympic Committee for illegal drugs. The report on her test said she had a testosterone-epitestosterone level higher than international rules allow. Decker contended that the test was invalid for women and that her suit be thrown out. She argued that the test did not take into account the hormonal swings a woman goes through during menstruation while on birth control and nearing menopause.

Should the IOC rule that intersexed athletes have to undergo therapies in order to compete, they will also have to consider cases such as these. To do otherwise would not just be hypocritical, but a blatant sign of discrimination. As it stands, the IOC's contention that intersexed athletes are a special case and that they must be physically modified in order to complete is a human rights violation.

The answer to the problem is not conformism, but accommodation.