Features 5th July 2021

DSD Regulations call out athletes as biologically male

Last week, two Namibian athletes were excluded from the Tokyo 2020 Olympics after being assessed under the DSD Regulations of World Athletics. It has been widely reported that the DSD Regulations (PDF below) seek to exclude ‘women’ whose testosterone levels exceed 5nmol/L from international events run between 400m and one mile in World Athletics’ female category. 

The truth is that the DSD Regulations are not really about testosterone at all. They do measure testosterone, but this is to weed out athletes whom World Athletics considers have developed an advantage over time due to being ‘biologically male’. 

As such, the DSD Regulations label the two 18 year old Namibians as 46 XY karyotype, or ‘biologically male’. This was terminology used by World Athletics to describe whom the DSD Regulations are directed against during Caster Semenya’s challenge to them at the Court of Arbitration for Sport (CAS).

The Regulations

World Athletics has confirmed that the DSD Regulations only apply to the 46 XY karyotype. ‘A 46 XY karyotype reveals that one is dealing with a genetic male who was undermasculinised during fetal development’, states Science Direct.

The Reguations don’t specifically state that they only apply to 46 XY athletes – to do so would be politically problematic. They outline that they only apply to athletes who have one of the five following DSDs:

• 5α-reductase type 2 deficiency;
• partial androgen insensitivity syndrome (PAIS);
• 17β-hydroxysteroid dehydrogenase type 3 (17β- HSD3) deficiency;
• ovotesticular DSD; or
• any other genetic disorder involving disordered gonadal steroidogenesis.

If an athlete has one of these five DSDs and their endogenous (natural) testosterone is at 5nmol/L or above and is taken up by their androgen receptors and boosts their physiology,  they must reduce it to below 5nmol/L. If they do not, they cannot compete in international events run between 400m and one mile in World Athletics’ female category.

‘The DSD Regulations do not apply to 46 XX female athletes, none of whom (even those with polycystic ovary syndrome) would ever have testosterone levels above 5nmol/L’, wrote a World Athletics spokesperson in an email. ‘These 46 XY athletes have DSDs which mean that their testes are internal, and their lack of male external genitalia caused them to be assigned a female gender rather than male gender at birth. ‘From puberty onwards, their internal testes produce the same levels of testosterone (7.7 to 29.4 nmol/L) as are produced 46 XY males who do not have DSDs. And provided they have functioning androgen receptors, and so their bodies are able to utilise that testosterone (another condition that has to be met for the DSD Regulations to apply), those male testosterone levels give them exactly the same physiological advantages over 46 XX females as the 46 XY males without DSDs enjoy.’

Jonathan Taylor

‘The DSD Regs only apply to Relevant Athletes, i.e. athletes who meet the criteria set out at 2.2(a)’, confirmed Jonathan Taylor, one of the authors of the Regulations. ‘And only 46 XY DSD athletes will meet those criteria. A 46 XX athlete could have an ovotesticular DSD, but she would not have enough testicular tissue to produce testosterone anywhere near 5 nmol/L.’

The original DSD Regulations covered seven, rather than five, DSD conditions. The amended Regulations carve out Congenital Adrenal Hyperplasia (CAH) from their scope, as well as 3β‐hydroxysteroid dehydrogenase deficiency. 

These two conditions could be experienced by XX athletes. As explained in the CAS Decision in Semenya’s case against them, the IAAF modified the DSD Regulations to exclude XX athletes from their scope. By doing this, it was able to frame the DSD Regulations as mitigating any advantage held by ‘biologically male’ athletes in international events run between 400m and one mile in its female category.

The logic behind the DSD Regulations is the same as the logic behind World Athletics’ rules on transgender athletes. The argument is that the action of testosterone on the XY physiology from puberty onwards combined with exercise and diet allows an insurmountable advantage to develop over XX athletes. This developmental advantage is asserted to be the reason why male athletes outperform female athletes, and is why World Athletics argues that is female category is protected, whilst its male category isn’t (XX athletes who seek to compete in the male category can take synthetic testosterone to bring them up to what is considered the ‘male’ level).

‘World Athletics has in fact done a longitudinal study comparing performance of biologically female and biologically male athletes, which we call the world records’, continued the World Athletics spokesperson. ‘Over decades, these prove time and again that there is substantial difference between the best-performing male and female athletes (8-12% across different athletics disciplines, much more in other sports). The scientific consensus is that this is due to the substantial differences in size and strength of muscles, bones, the heart and the lungs (which drive strength and power) and in serum haemoglobin (which drives endurance) caused by the enormous sex difference in levels of circulating testosterone between females (46XX) and males (46XY), which emerge during puberty.’

Using this logic, many sports have chosen to exclude XY athletes from their female category entirely. However, asserting that transitioned XY females will always hold an advantage over XX females fails to consider the collapse of the endocrine system that occurs in XY individuals who undergo surgery to become XY females. If they no longer hold an advantage, do they have a right to compete in their chosen gender?

The transition process involves a gonadectomy, or surgical removal of the testicles. In XY individuals, the endocrine system is driven by testosterone, which is produced by the testicles. In XX individuals, it is driven by oestrogen and progesterone in addition to testosterone. The XY endocrine system collapses without testosterone. In response to stimulus, the brain tells the body to produce testosterone, but it cannot produce any.

One of the four athletes who had surgery under World Athletics Rules said she wished she had died…

In an ordinary XY person, the result of this is understood to be felt almost immediately. Due to the nature of their profession, an elite athlete is fit and healthy, so this process is understood to take a few years. The impact that removal of the testicles can have on XY athletes is evidenced by the experience of Kristen Worley and four young athletes who were offered surgery under previous rules in this area to reduce their testosterone levels.

Worley succeeded in holding sport to account for her treatment at the Ontario Human Rights Tribunal…

All had gonadectomies. All later became uncompetitive in sport and suffered significant health issues. Without testosterone, they are uncompetitive, showing that sport’s rules work. However, as the experience of these five athletes shows, in requiring 46 XY karyotype athletes to make a choice between surgery or reducing their endogenous testosterone to below what their physiology may require, sport also risks making people ill. 

Do no harm

A young Caster Semenya…

Caster Semenya fits the IAAF definition as ‘biologically male’, as she has one of the five DSDs outlined in the DSD Regulations, and competes in the Restricted Events. Semenya’s status as a 46 XY DSD athlete was confirmed by the Swiss Federal Supreme Court on 29 July 2019, when it revoked a supra-provisional suspension of the application of the DSD Regulations to Semenya. ‘Mokgadi Caster Semenya is an “athlete concerned” within the meaning of Article 2.2 of the DSD Regulations’, reads its 29 July interlocutory order (available here in French).

And as confirmed by World Athletics above, the DSD Regulations only apply to 46 XY athletes. As such, their application has outed Caster Semenya, Christine Mboma, Beatrice Masilingi, Francine Niyonsaba, and Margaret Wambui as 46 XY DSD, or ‘biologically male’. Through the application of its Regulations, World Athletics is literally labelling young athletes who consider themselves female as male.

The European Court of Human Rights (ECHR) has recently published ten questions that parties will be asked to consider in deciding if the DSD Regulations contravene Semenya’s human rights. The first of these asks if she has ‘suffered treatment contrary to her human dignity, her physical and mental integrity, and her social and gender identity’. It is hard to see how the answer could be anything other than the affirmative. 

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