Hyperandrogenism Regulations and Women's Right to Participate in Competitive Sports

Abstract

In this paper, it is discussed whether the regulations on hyperandrogenism in elite women's sports can be harmonized with women's right to participate in competitive sport. The paper first reviews, by a doctrinal and source-coded approach, eight of the provided academic, legal and medical sources, followed by the current World Athletics 2023 DSD Regulations and the 2026 Olympic Charter, and concludes that the female category could be a legitimate regulatory tool, but that testosterone-based eligibility rules are subject to a high-proportionality standard. There is a disagreement over the evidence base. World Athletics has taken the general relevance of androgens to muscle mass, haemoglobin, lean mass and some performance parameters on faith and the relevant evidence is endocrinological studies. Meanwhile, bioethics and legal scholarship demonstrate that testosterone cannot be a full substitute for sex testing, suspicion-based enforcement can result in sex testing, and treatment as eligibility can be an infringement on bodily integrity, privacy, equality and due process. We propose therefore a rights-compatible framework, which would require that eligibility restrictions be event-specific, evidence-based, reviewed regularly, that the athlete's medical care be excluded, be confidential, be appealable and follow the principle of the least restrictive means. Sport does not have to stop all sex classification in order to have the right to participate. It does call on governing bodies to argue exclusions based on more than a fear of a category nightmare and to think of the affected woman as an athlete as much as an exception.