Excerpted From: Rachel Crass, Not Woman Enough: How World Athletics' Treatment of Women with Differences in Sexual Development Violates the Olympic Charter and the UN's Conventions Against Racial Discrimination and Discrimination Against Women, 52 Denver Journal of International Law and Policy 315 (Spring, 2024) (189 Footnotes) (Full Document Requested)

RachelCrassIn ancient Greece, so a creation myth goes, Pelops founded the Olympic Games to celebrate his marriage to Hippodamia, daughter of King Oenomaus and granddaughter of Ares, one of the twelve Olympians and God of war and courage. Pelops won his bride by cheating to beat Oenomaus in a chariot race after both men had sworn an oath of fair play to Zeus. Consider it a bit of cosmic karma, then, that the Olympic Games have been plagued by a constant game of cat and mouse between cheaters and those fighting to enforce fair play. But what happens when the fight for fair play overcorrects and becomes the very thing its proponents are battling against? Unfortunately, as WA's current policy of singling out and effectively banning women with Differences in Sexual Development (DSDs) shows, the answer to that seems to be: not a whole lot.

The Olympic Games, originally reserved only for male athletes, have grappled with what to do with women since 396 B.C., when Spartan Princess Kyniska took advantage of a loophole surrounding horse ownership to win a chariot race despite not being allowed to enter the arena. Over 2,000 years later, in 1896, not even a loophole could grant women participation in the first modern Olympic Games. International Olympic Committee (IOC) founder Pierre de Coubertin said at the time that women competing in the Games would be “impractical, uninteresting, unaesthetic, and ... indecent.” Slowly, however, Olympic sports began to open up to women, so long as those sports were aesthetically pleasing, such as tennis and figure skating. Events for women have continued to grow in number and scope over the last 100 years, but sports with subjective scoring systems still emphasize strength and power for men and aesthetics for women. Other sports continue to exclude women from particular events altogether, such as track and field's exclusion of women from the decathlon.

While female exclusion from the decathlon is an obvious disparity, track and field's international governing body, WA, is engaged in a much more insidious breed of sexism with its classification of women with DSDs. The policy's application and enforcement also violate international standards against racial discrimination. WA and the International Court for Arbitration of Sport (CAS) admit the policy is discriminatory, but, they argue, the discrimination is necessary to enforce fair play. The truth, however, is that eliminating WA's current DSD classification system would not only better serve the sport's alleged goal of fairness but would also bring WA's eligibility criteria into compliance with international standards governing gender and racial discrimination.

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In order to align with international anti-discrimination standards and to regain compliance with the Olympic Charter, World Athletics should eliminate its DSD regulations altogether and allow all women who have identified as female since birth to compete in the women's category of events without risk of being subjected to further gender verification testing or endogenous hormone suppression. Because the DSD regulations are discriminatory and carry significant adverse health risks for the athletes involved, if World Athletics refuses to eliminate the regulations, the IOC is Charter-bound to intervene.

Rachel Crass is a law student at the University of Denver Sturm College of Law, where she is pursuing a career in domestic and international human rights law. Rachel earned a B.S. in Biology from the University of Colorado, Colorado Springs in 2008 and has been an Elite Athlete Representative for an Olympic Sport since retiring as an athlete in 2010.