SII Focus 24th February 2016

Transgender Guidelines: an attempt to ‘dead cat’ debate on gender

In November 2015, the International Olympic Committee (IOC) published its Transgender Guidelines within a Consensus Statement following a ‘Consensus meeting on sex reassignment and hyperandrogegism’. The Guidelines are intended to replace the 2003 Stockholm Consensus, which required transgender athletes to undergo surgical anatomical changes and hormonal therapy in order to compete in female competition. The Guidelines, which are intended as recommendations for international federations and other sporting bodies, recommend that such surgical changes should no longer be required.

Has the IOC suddenly had a change of heart? Does the IOC intend to let men with penises and testicles line up alongside women to compete in female sport? Or is this an attempt to ‘dead cat’ a scientific debate over issues around gender and participation in sport?

The term was coined by London Mayor Boris Johnson in a 2013 editorial for the Daily Telegraph. It refers to distracting people from an issue by throwing something ‘outrageous’ onto the table (i.e. a dead cat) so that everyone is forced to talk about it instead.

The timing of the IOC’s Consensus Statement is significant. On 29 February, the Ontario Superior Court of Justice will hear the IOC’s attempt to bring a human rights complaint back within the sporting system. Canadian elite cyclist Kristen Worley has filed an case with the Ontario Tribunal of Human Rights, and it appears that the IOC is not happy for it to be heard there. It would prefer the Court of Arbitration for Sport (CAS), which it solely funded until 1994, to hear the case. Worley’s case, examined in detail here, alleges that the sport’s rules have caused her medical damage, and uses science to dispel the myth that natural testosterone levels can be used to determine a person’s sex and to measure athletic ability.

Secondly, the Rio 2016 Olympics are less than six months away. In the Dutee Chand ruling on 24 July last year, sport’s own arbitration court, the CAS, gave the International Association of Athletics Federations (IAAF) two years in which to provide scientific evidence regarding the degree of competitive advantage enjoyed by ‘hyperandrogenic’ females, otherwise its 2011 ‘Regulations Governing Eligibility of Females with Hyperandrogenism to Compete in Women’s Competition’ would be declared void. Such evidence has yet to be provided.

‘The IAAF, with support from other International Federations, National Olympic Committees and other sports organisations, is encouraged to revert to CAS with arguments and evidence to support the reinstatement of its hyperandrogenism rules’,  reads the IOC’s Consensus Statement, ignoring the scientific and ethical evidence that had led the CAS to suspend the regulations in the first place. Article 3(b) of the IOC’s Regulations on Female Hyperandrogenism require National Olympic Committees (NOCs) to ‘actively investigate any perceived deviation in sex characteristics’. This means that female athletes preparing for the Games face the spectre of having their femininity called into question.

Both the IAAF and IOC Regulations were underpinned by the same science that the Consensus Statement wants reinstating, science that sport’s own court has called into question. Although the IAAF Hyperandrogenism Regulations attempt to downplay the issue by highlighting the ‘rarity of such cases’, the Chand ruling reveals that there have been ‘over 30 cases to date’. As the Hyperandrogenism Regulations came into force in May 2011, that is over ten cases per year.

Why is this important? Because people are being medically harmed by sport under these regulations. Ahead of the London 2012 Olympics, four young athletes were forced to undergo surgery to allow them to compete, reported the International Business Times. The IAAF initially denied that this had taken place, however a 2013 study appears to suggest that it did.

Arne Ljungqvist, former Chairman of the IOC’s Medical Commission, told the New York Times that he was shocked to hear about the cases, because surgical intervention is not part of the IOC’s Hyperandrogenism Regulations. He said that the way in which the rules had been interpreted in this case was “unacceptable”. However, sport is required to ‘actively investigate any perceived deviation in sex characteristics’, so while IOC policies may not be directly responsible for the surgery carried out, they appear to be the reason why it was carried out.

The IOC’s Consensus Statement is attempting to garner support for polices that are not supported by sport’s own research. ‘The lack of definitive research linking female hyperandrogegism and sporting performance is problematic and represents another central point of the controversy’, reads research commissioned by the IAAF in July 2014. ‘With the exception of data extracted from doping programs in female athletes in the former German Democratic Republic, there is no clear scientific evidence proving that a high level of T [testosterone] is a significant determinant of performance in female sports’.

By allowing men with penises and testicles to line up against women in Rio, the IOC was counting on the fact that the public would react with sufficiently outraged vitriol to cover up the inadequacies in its science. The Times and Mumsnet duly obliged, predictably stating that such rules were unfair to women and demanding action from the IOC.

The ‘dead cat’ had hit the table and had done its unpleasant job, removing the IOC’s responsibility for explaining its discriminatory policies, which have medically harmed women, transgender or not. The IOC is hoping to be able to say that it doesn’t want to introduce such policies, but public pressure has forced its hand.

Apples with oranges

One of the main problems with sport’s approach to these issues is that it attempts to put all of the eggs in the same basket, whilst it is really comparing apples to oranges.  To take out the mixed metaphors, women and transitioned women have entirely different physiologies. Sport’s rules fail to recognise this medical science by trying to impose the same testosterone limits on both.

Females have two kinds of the same chromosome (XX) and males have two distinct chromosomes (XY). However, nine different variations on this basic theme are possible. Testosterone is an androgenic hormone. Whilst testosterone is the dominant sex hormone in males (oestrogen in females), it is produced in significant quantities by both males and females – especially by elite athletes, who need it to aid muscle growth and recovery. Females produce it in the ovaries and the adrenal gland, whilst men produce it in the adrenal gland and testes.

Until it introduced its Transgender Guidelines, the IOC required XY female athletes to undergo surgical anatomical changes and hormonal therapy, as mandated by the 2003 Stockholm Consensus. Sex reassignment surgery often involves an orchiectomy, or removal of the testes. Transitioned athletes need to take synthetic androgens, as they have no functioning ovaries or testes, and therefore cannot produce testosterone or oestrogen naturally. Scientists have found that when the body loses its ability to produce androgens, it loses its ability to maintain itself, as androgens have over 200 daily functions in the human body.

Unless transitioned woman (XY females) take synthetic hormones, ‘Complete hormonal deprivation’ can occur, which involves the cessation of cell synthesis, causing a number of serious health issues. These include the induction of an immediate extreme post menopausal state; a non-natural and aggressive ageing process; complete muscle atrophy (i.e. failure of muscle development and recovery, making sport impossible); anaemia; a large drop in haematocrit levels and more.

The US University of Rochester’s online medical library states that the normal ‘male’ range for testosterone is between 9.7nmol/l and 38.1nmol/l; and between 0.5nmol/l and 2.4nmol/l for ‘females’. The US government’s National Library of Medicine agrees with the University of Rochester’s ranges with regards to ‘women’, but puts normal ‘male’ levels at between 10.4 nmol/l and 34.7nmol/l. According to research undertaken in the US in 2004, the IOC and IAAF limit of 10nmol/l is at the lower end of the normal range for males over 40.

As these different analyses show, these levels can vary with age, but also due to occupation. A 2014 study, ‘Endocrine profiles in 693 elite athletes in the post-competition setting’, found that 16.5% of the ‘male’ athletes had low testosterone levels, and 13.7% of the ‘females’ had high testosterone levels, ‘with complete overlap between the sexes’. The report concluded: ‘The IOC definition of a woman as one who has a ‘normal’ testosterone level is untenable’. In other words, elite athletes have testosterone levels that differ widely from those that might be considered ‘normal’ in the general public population and are not an arbiter of whether elite athletes are ‘male’ or ‘female’.

XY females need a range of total testosterone somewhere between the higher female atypical range and the lower male range in order to maintain normal health. This is somewhere between 9nmol/L and 12nmol/L for non-athletes, but is understood to be higher in athletes. As synthetic testosterone is on the World Anti-Doping Agency’s (WADA) Prohibited List, XY females required a Therapeutic Use Exemption (TUE) for this medical need.

The Consensus Statement recommends allowing ‘those who transition from male to female’ to compete if they can demonstrate that their total testosterone levels in serum are below 10nmol/l (ten nanomoles per litre – in other words a billionth of the amount of a substance) for 12 months prior to – and during – competition. Any athlete who cannot do this will only be eligible for ‘male’ competitions. Women who wish to compete as men are allowed to compete ‘without restriction’.

As the IAAF and IOC have set the permitted androgen level at the lower end of the ‘normal male’ range, (i.e. not the normal range for elite athletes) this can cause ‘complete hormonal deprivation’ in elite XY athletes forced to take their testosterone levels down to sport’s mandated levels. By setting the testosterone limit at the lower end of the normal male range, the IOC is medically handicapping any athlete who should  transition from male to female, as they have a medical need for synthetic androgens.

The level of 10nmol/l is significant, as it matches the level mandated by the IAAF in its 2011 Hyperandrogenism Regulations, which apply to XX women. Such a limit was not mandated by the Stockholm Consensus. It could be argued that the levels applied to XY women by the IOC’s new Consensus Statement are more discriminatory than the Stockholm Consensus by imposing testosterone limits sport deems appropriate for XX women on XY women. Why has this limit, which sport has deemed as the upper acceptable limit for testosterone in XX females, suddenly been imposed on XY females?

Discrimination and bad science

It appears that the IOC and IAAF have simply decided that 10nmol/l should be the limit for natural testosterone for those it does not consider female. Into this sporting basket we can put XY females and XX females with ‘hyperandrogenism’, which the IAAF Regulations highlight as XX women with ‘masculine traits’. XX women who fit sport’s idea of what it is to be ‘feminine’ are not subject to such regulations.

As has already been highlighted, natural testosterone levels differ wildly in elite athletes, and such levels are not an indication of athletic ability or of gender. Should we be sanctioning people for something their body produces naturally, or limiting access to a medically required hormone by those who have lost the ability to produce it naturally? Such sanctions appear to go against the ethos of sport, which is based on making the best of the natural advantages the body has. After all, we don’t shorten extremely tall basketball players, despite scientific evidence that their height may sometimes be due to XYY chromosomal make-up.

It is important here to distinguish between naturally produced (endogenous) testosterone and externally administered (exogenous) testosterone. Exogenous testosterone is the main ingredient in anabolic steroids, which are banned in sport as they artificially elevate the body’s natural testosterone levels, stimulating muscle growth.

In a very simplified form, a person taking on exogenous testosterone is cheating, as it allows that person to artificially stimulate muscle growth. What is less certain is the impact that endogenous testosterone levels have on muscle growth, as they are tied in with so many other biological factors. What is very uncertain is the impact that testosterone has on athletic performance and whether it results in a competitive advantage.

Yet the myth persists. Along with the IAAF’s Hyperandrogenism Regulations, the IOC’s Hyperandrogenism Regulations and the Consensus Statement suggest that endogenous (internal) testosterone production determines athletic ability in females. ‘The performances of male and female athletes may differ mainly due to the fact that men produce significantly more androgenic hormones than women and, therefore, are under stronger influence of such hormones’, reads the IOC’s Hyperandrogenism Regulations. ‘Androgenic hormones have performance-enhancing effects, particularly on strength, power and speed, which may provide a competitive advantage in sports’.

The IAAF’s regulations are more forceful: ‘The difference in athletic performance between males and females is known to be predominantly due to higher levels of androgenic hormones in males resulting in increased strength and muscle development’, they read. However, note the use of ‘may’ and ‘predominantly’.

An article by Liz Riley of Bird & Bird, who advise the IAAF and the IOC, cites this piece of research as evidence as to why 10nmol/l has been set as the limit. However, this appears to be research conducted on XX females with hypogonadism in the general population, not elite XX female athletes, not XY females and not XY female athletes. In short, it doesn’t support why such a limit has been imposed on two distinctly separate groups of elite athletes.

As well as Riley, the IOC panel that drew up the guidelines included Joanna Harper, an XY female athlete and Medical Physicist in Radiation Oncology, Providence Portland Medical Center. Harper conducted research that involved collecting 200 race times from eight XY female distance runners over seven years. She found that the eight subjects got much slower after transitioning and put up almost identical age-graded scores as XY females as they had as XY men. Harper’s research states that the eight subjects underwent ‘testosterone suppression’, but it is understood that they were not subject to the 10nmol/l limits prescribed by the IOC Consensus Statement and IAAF Regulations. This in itself is curious, since transitioned XY women wouldn’t need testosterone suppression, since their body would not be able to produce any testosterone naturally.

Interestingly, Harper found that the Stockholm Consensus relied on research conducted by Dr. Louis Gooren from Amsterdam, an expert in transgender studies who studied 19 XY females after the commencement of hormone therapy. ‘After one year of testosterone suppression, the subjects had testosterone levels below those of 46,XX women, and hemoglobin levels equal to those of 46,XX women (red blood cell content is very important in endurance sports)’, says Harper about Gooren’s research. ‘This study was not undertaken on athletes, nor did the researchers directly measure any physical component of athleticism, such as strength, speed, explosiveness, or endurance. Transgender women who have undertaken testosterone suppression change from normal male testosterone levels to normal female levels, in fact, after surgery their testosterone levels are below the mean for 46,XX women (Gooren and Bunck, 425–429). Largely as a result of their vastly reduced testosterone levels, transgender women lose strength, speed, and virtually every other component of athletic ability.’

Harper’s research mentions ‘the majority of scientists agree that testosterone is primarily responsible for the difference in athletic results between the sexes’, however the source for this statement is interesting. It is the same research commissioned by the IAAF which found that ‘there is no clear scientific evidence proving that a high level of T [testosterone] is a significant determinant of performance in female sports’. The authors of the research include Stéphane Bermon of the IAAF Medical & Anti-Doping Commission and Gabriel Dollé, the former Director of the IAAF’s Anti-Doping Department who has been implicated in corruption allegations. Interestingly, Dollé is not listed as an IAAF employee within the research.

Shenanigans aside, Harper’s research appears to show that complete transition (from male to female) appears to at least equalise the performance of XY women, and may even take it below that of XX women, which would undermine the IOC and IAAF’s position. As explained, complete transition removes the body’s ability to naturally produce androgens. So why the IOC limit of 10nmol/l is in place therefore remains something of a mystery.

Riley’s article (mentioned above) also inadvertently highlights the impact that such a regulation, when it is implemented from the top down, can have on sport. Football, rugby league, badminton England and British Rowing have all adopted testosterone limits applicable to XY female athletes, taking their lead from the IOC and IAAF. The article does, however, concede that ‘the requirement that female-to-male transsexuals have testosterone levels ‘in the male range’ (ostensibly due to safety concerns) also seems potentially problematic (in particular, the ‘male range’ is not specified in such policies, and while a normal male range does exist there will be males with testosterone levels outside of that range)’.

In conclusion, scientific research that the IOC and IAAF are using to prop up their regulations does not appear to support them. The fact that the Consensus Statement was not ‘announced’ by the IOC in a media release perhaps gives something away as to their true intent, as does the language used in them, which suggests that they are doing XY females a favour by allowing them to compete. ‘It is necessary to ensure insofar as possible that trans athletes are not excluded from the opportunity to participate in sporting competition’, they read, perhaps showing their natural preference.

The myth of choice

The nature of the Consensus Statement implies that XY females have a choice whether to undergo sex reassignment surgery. Research undertaken by the Williams Institute found that suicide attempts reported by 6,000 transgender people was 41%, much higher than the 4.6% average reported by the general US population. By allowing transgender XY men to compete against XX women, the Guidelines appear to imply that there is a choice in whether to transition to become an XY female.

“For me, and the few others I have spoken to over the years, surgery was never a ‘maybe’, or ‘I might do it if I feel like it’ or ‘oh, I might as well go the whole way’”, argues Mianne Bagger, a professional golfer. “’Transition’ was always about complete transition, right from childhood. There was never a ‘decision’ to be made in that context. The only way choice can be applied here is the choice to stay alive, as opposed to taking my own life. This may be brutally harsh, but that’s how it was. This is what is so abrasive when we read articles or comments about the notion of how some ‘man’ might ‘decide’ to have a ‘sex change’ to then compete in women’s sport. People talk about it as if it is like choosing a new hairstyle of having ones hair colour changed.”

One athlete who knows this argument all too well is Canadian elite cyclist Kristen Worley. She met the requirements of the Stockholm Consensus, which required her to take herself out of competition for two years following surgery and hormone replacement therapy after surgery. However, due to IOC, WADA and Union Cycliste Internationale (UCI) rules, she was required to obtain a TUE for the synthetic testosterone she medically required.

This took over three years, and when it arrived only permitted testosterone levels of 0.5nmol/l – well below the ‘normal’ levels for non-athletic XX females. As previously stated, XY female athletes require testosterone at a higher level than 10nmol/l in serum, so this induced ‘complete hormone deprivation’ in Worley, as explained in this article. ‘There is no competitive advantage for Kristen in maintaining this androgen level and her doctors have shown that this level simply maintains Kristen’s health at the same level as any other female competitor’, reads Worley’s filing, a copy of which is held by the Sports Integrity Initiative.

Harming healthy XX females

As explained, the link between the Consensus Statement and the IOC and IAAF’s hyperandrogegism regulations is that they both set a testosterone limit at 10nmol/l, a limit that doesn’t appear to be appropriate for either XX females or XY females. The CAS acknowledged this in its ruling on Dutee Chand’s case against her 2014 ban by the Athletics Federation of India (AFI), which had found that her testosterone levels were above 10nmol/l.

‘The IAAF has not provided sufficient scientific evidence about the qualitative relationship between enhanced testosterone levels and improved athletic performance in hyperandrogenic athletes’, read its ruling. ‘The IAAF has not established, on the balance of probabilities, that the Hyperandrogenism Regulations apply only to exclude female athlete that are shown to have a competitive advantage of the same order as that of a male athlete.’

Dutee Chand appears to have been banned for something her body produces naturally, and she is not the only one. Put simply, some women (such as Dutee Chand) naturally have higher testosterone levels than some men. As highlighted previously, paragraph 248(d) of the July 2014 ruling (extract below) reveals there have been over 30 cases to date. As the IAAF’s Hyperandrogenism Regulations came into force in May 2011, that is over ten cases per year.

As mentioned in the introduction, this includes four young athletes, aged 18-21, who were forced to undergo surgery to allow them to compete at the London 2012 Olympics. It is understood that all four XX female athletes were found to have a mix of male and female anatomical features and ended up having surgery to remove undescended testicles, being told that this would lower their testosterone levels and allow them to continue competing. A scientific study revealed that all the athletes had medical procedures that had nothing to do with this process: reductions to the size of their clitorises, ‘feminine’ remodelling surgery and oestrogen replacement therapy.

As these young athletes (18-21) have had their ability to naturally produce androgens surgically removed due to a requirement by sport, they are now suffering ‘complete hormone deprivation’ – the same condition ensured by Worley – at sport’s hands. The sad thing is that the surgery, in this case, was not due to any gender identity issues, had no basis in relation to sport or physical performance, and were based purely on cosmetic ideals put forward by sport. These four XX women have been medically damaged due to a requirement of sport that does not appear to be based on scientific research.

Conclusion: the dead cat is disgusting

Far from supporting transgender athletes, the IOC’s Consensus Statement appear to reassert the premise that a single measure of testosterone is the main factor in determining whether anybody is ‘male’ or ‘female’. However, it appears that this assertion is not backed by science or even by sport’s own commissioned research.

In fact, the Consensus Statement could be considered as even more discriminatory than the 2003 Stockholm Consensus, by pegging such testosterone levels to those of XX females and implying that XY females have a choice in transitioning. Neither assertion is backed by scientific or ethical research. In fact, the testosterone levels appear to actively exclude XY females from sport by making them uncompetitive and medically harming them.

In undergoing sex reassignment surgery, transgender athletes are taking a great leap into the unknown, as their bodies are likely to require more testosterone than that sport’s limit, which is equivalent to the lower range for a male over 40. If they don’t have surgery, they can still produce testosterone, but must medicate to keep levels below those required by sport. However, as the Williams Institute research and Mianne Bagger have poignantly pointed out, there is no choice not to have surgery.

By introducing the Consensus Statement, the IOC appears to be attempting to ‘dead cat’ any debate on these issues. Its true intentions are made clear at the end of the Guidelines, which urges the IAAF and the rest of sport to support the reinstatement of the hyperandrogegism rules, despite the fact that have medically harmed XX females such as the four athletes required to to undergo surgery in order to compete in the London 2012 Olympics and despite the fact that they are not backed by science. In fact, they take the abuse a step further by pegging unscientific limits applied to XX females to XY females.

The fact that sport is attempting to re-impose and extend a set of regulations which its own court – the CAS – could find no scientific support, has not been lost on lawyers. ‘Without acknowledging or addressing any of the scientific or ethical arguments that persuaded the CAS to declare the IAAF’s Hyperandrogenism Regulations discriminatory, the IOC’s statement calls on the IAAF and other national and international sports governing bodies to resurrect those now-suspended Regulations’, reads a 9 February open letter from the legal team that represented Chand at the CAS. ‘We call on the CAS to publicly respect the CAS decision and declare it will not introduce Hyperandrogenism Regulations for the upcoming Rio Olympic Games’.

It is telling that the IOC has petitioned the Ontario Superior Court of Justice to have Worley’s case heard within the sporting system at the Court of Arbitration for Sport (CAS) in Switzerland. The CAS is designed to rule on whether sport’s rules have been correctly interpreted and applied. The ‘dead cat’ in this whole debate is the Consensus Statement, which is designed to stimulate public outrage on a similar, but unrelated issue to detract from the human rights abuses sport has committed on Worley and other athletes, which will be aired in a very public forum if the IOC doesn’t succeed in blocking the case.

‘To require surgical anatomical changes as a pre-condition to participation is not necessary to preserve fair competition and may be inconsistent with developing legislation and notions of human rights’, read the IOC’s Consensus Statement. The irony is that you could replace ‘surgical anatomical changes’ with ‘testosterone levels below 10nmol/l’ and it would appear that the sentence would still read true. The IOC will have to prove that its interpretation is incorrect in front of a human rights court. Good luck with that one.

In his editorial, Boris Johnson said that people didn’t need to be disgusted by the dead cat, just distracted. However in this case, they ought to be disgusted.

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