Sex Testing on Trial

Two global sport governing bodies – World Athletics (WA) and World Boxing (WB) – recently decided to institute genetic testing as a precondition for competing in the women’s category of their sports. Both now require all athletes intending to compete in women’s events to undergo a genetic test to detect the presence or absence of the SRY gene, as proxy for “biological sex.” The intent is to exclude some women, including those with certain congenital “differences of sex development” (DSD), from women’s sport.

Notably, genetic testing is not a new approach to “female eligibility” in sport. Rather, it revives an old model – last widely used in 1990s – which was deemed unscientific, unethical, and ultimately unworkable. In today’s legal landscape, with the proliferation of laws that specifically regulate genetic testing and the handling of genetic information, this renewed approach to female competition eligibility faces even more pitfalls, which have so far escaped notice.

The many laws restricting genetic sex testing around the world

Female eligibility regulations in sport have already faced multiple legal challenges, including under international human rights frameworks, such as the European Convention on Human Rights. These frameworks contain general protections like the rights to private life, bodily integrity, and freedom from discrimination, which are relevant to genetic testing. Less discussed, however, is the growing body of law that specifically regulates and restricts genetic testing and the use of genetic information.

At the international level, the Council of Europe’s Convention on Human Rights and Biomedicine (the Oviedo Convention), ratified by 30 member states, and its Additional Protocol concerning Genetic Testing for Health Purposes, are particularly relevant. Thes instruments guarantee everyone, without discrimination, respect for dignity, integrity, identity, and other rights and fundamental freedoms in the context of biology and medicine. They also impose specific restrictions on when and how genetic testing may be conducted and how genetic information can be used. Multiple non-binding UNESCO instruments – such as the International Declaration on Human Genetic Data and the Universal Declaration on the Human Genome and Human Rights – affirm similar principles.

At the domestic level,¹⁾ many countries, particularly in western and northern Europe, have adopted laws specifically regulating genetic testing. In Norway, for example, such laws were amended to specifically prohibit genetic sex testing in sport when it was last attempted decades ago. Some countries have also adopted genetic non-discrimination laws to prevent private actors from conditioning employment or other benefits on genetic testing. In addition, emerging data privacy laws specifically regulate the handling of human genomic data, with implications for genetic sex testing in sport. Moreover, professional regulations and ethical conduct codes place significant constraints on physicians administering genetic testing, including requirements of medical benefit, consent, confidentiality, non-discrimination, respect of autonomy, beneficence, non-maleficence.

Together, this patchwork of domestic and international laws creates numerous pitfalls for genetic sex testing in sport, which are not accounted for in WA and WB’s regulations.

The many legal pitfalls of genetic sex testing in sport

Genetic sex testing in sport appears to violate multiple principles enshrined in domestic and international legal instruments, including (1) the prohibition on genetic testing for non-health purposes; (2) the prohibition on using genetic testing as a condition for receiving benefits or other discriminatory purposes; (3) the prohibition on genetic testing without free and informed consent; and (4) the prohibition on the collection and handling of genetic information by certain entities. A brief review of each reveals that WA and WB’s new regulations are vulnerable to legal obstacles and challenges on multiple grounds.

Prohibited purposes

Most fundamentally, genetic testing²⁾ is typically prohibited unless it serves a health-related purpose. For instance, under Article 12 of the Oviedo Convention, genetic tests “may be performed only for health purposes of for scientific research linked to a health purpose.” Likewise, domestic laws, such as Norway’s Biotechnology Act, France’s Bioethics Law, Austria’s Gene Technology Act, and Switzerland’s Federal Law on Human Genetic Analysis, limit genetic testing to medical purposes with diagnostic or therapeutic aims. Some laws, including those of Norway and Switzerland, place additional restrictions on the range of permissible medical purposes for testing individuals under a certain age. The genetic tests mandated by WA and WB, however, serve no medical purpose whatsoever. They are not carried out at the athlete’s request to improve their health or inform their clinical care. Rather, the explicit purpose of WA and WB’s testing regime is to determine eligibility for sports competition.

The Additional Protocol to the Oviedo Convention further specifies in Article 6 that the “clinical utility” of a genetic test – that is, the likelihood that it will improve the patient’s health outcomes – must be “an essential criterion for deciding to offer this test to a person or a group of persons.” Genetic tests must also “meet generally accepted criteria of scientific validity and clinical validity” and any genetic screening programme must undergo independent evaluation for health relevance, scientific credibility, and ethical acceptability. These requirements appear unmet for genetic sex testing in sport. Not only is there no clinical purpose for such testing, but the scientific justifications for using the SRY gene as an exclusive marker of sex are complex, contested, and controversial, since sex is not reducible to a single gene. Additionally, there is no indication that WA and WB’s sex testing regimes have undergone the independent review required for genetic screening programmes, including to assess the many ethical concerns associated with such testing.

Notably, these shortcomings – the absence of medical purpose alongside significant scientific and ethical criticisms – were key reasons why professional medical associations began objecting to genetic sex testing in sport in the 1980s. As bioethical laws have proliferated since, so too have the legal pitfalls for WA and WB’s current regulations.

Prohibited preconditions

Another longstanding concern about genetic sex testing, among doctors and others, has been discrimination. The Oviedo Convention (Article 11) and its Additional Protocol (Article 4) prohibit any form of discrimination or stigmatization against a person, either as an individual or as a member of a group, based on genetic characteristics. This prohibition is to be interpreted in accordance with the general principle that “[t]he interests and welfare of the human being shall prevail over the sole interest of society or science.” Similarly, the International Declaration on Human Genetic Data emphasizes that human genetic data should not be used “for purposes that lead to the stigmatization of an individual, a family, a group or communities.” However, WA and WB’s regulations seem to do just that: They apply only to women, legally and socially recognized as such, thus discriminating against women as a group. They further divide women into “biological females” and “biological males” based on a single genetic marker, subjecting the latter, including women with certain DSD, to further discrimination, including invasive examinations and, in most cases, disqualification.

WA and WB’s regulations also appear to violate more specific national non-discrimination laws. A case in point is Canada’s Genetic Non-Discrimination Act, which prohibits making genetic testing or disclosure of the results of such testing a condition of a contract, agreement, or the provision of goods or services. Yet, WA and WB’s regulations do exactly this: They add a genetic testing condition to the contract between athletes and their sport’s governing body and, likewise, to the provision of access to competition, official recognition of results, and financial prizes. Similar laws exist in many other countries, from the United States to Austria, which specifically prohibit employers, among others, from requesting and using genetic information. In professional sports contexts, genetic sex testing regulations may also run afoul of these laws, in addition to broader non-discrimination laws.

Prohibited pressures

In virtually all jurisdictions, free and informed consent is a precondition for genetic testing. This is reflected in the Oviedo Convention (Article 12) and its Additional Protocol (Article 8), which require that such testing be accompanied by genetic counselling that is “non-directive” in nature. Testing minors who lack legal capacity to consent is prohibited unless postponing the test would harm their health or well-being. The International Declaration on Human Genetic Data specifies that consent to genetic testing is only valid if it is not induced by financial or other personal gain, while the Universal Declaration on the Human Genome on Human Rights states that “limitations to the principle of consent […] may only be prescribed by law, for compelling reasons within the bounds of public international law and the international law of human rights.”

The nature of sex testing in the context of sport eligibility makes free and informed consent virtually impossible. Refusing to consent carries a heavy cost: losing the ability to compete, which for many athletes is the basis of their livelihood, alongside potential reputational consequences, including stigmatization based on assumptions about what their refusal implies. Consent given under threat of ineligibility, among other attendant consequences, cannot be said to be free of inducements.

Further, in many jurisdictions, children under a certain age may not consent to and/or undergo genetic testing, except in certain rare health-related circumstances, which do not include eligibility for sports competition. WA and WB’s regulations apparently apply to athletes of all ages, including minors, thus introducing additional legal barriers.

Additionally, there is no reference in WA and WB’s regulations to other legal requirements such as genetic counselling, which is often a prerequisite to free and informed consent, regardless of age. Such counselling must typically be neutral and non-directive, which is challenging to achieve when testing is mandatory for eligibility. In any case, the universally mandatory nature of sex testing under WA and WB’s regulations seems to vitiate consent entirely.

Prohibited processes

Finally, WA and WB’s regulations ignore the special legal protections afforded to genetic information in terms of who may access it and in what context. For example, the International Declaration on Human Genetic Data grants human genetic information “special status” because of its sensitivity, and restricts its collection, processing, use, and storage to healthcare, scientific research, and criminal legal proceedings – each subject to international human rights law. In some jurisdictions, like Norway, only medical practitioners or researchers may even inquire whether an individual has undergone a genetic test, let alone request, receive, or possess the results of such a test. WA and WB are private organizations engaging in precisely this prohibited conduct.

Moreover, genetic information occupies a distinct legal category, with heightened protections, in data protection frameworks all around the world. However, WA and WB’s regulations do not indicate how compliance with these frameworks will be achieved, despite requiring cross-border sharing of athletes’ genetic information. For instance, WA’s regulations require athletes to agree to the collection, processing, disclosure, and use of their sensitive personal information “to the fullest extent permitted and not contrary to applicable laws” (section 3.5.2), without indicating who is responsible for ensuring compliance within and between countries. Similarly, the regulations state that WA’s Medical Manager will ensure that athletes’ medical information is processed “in accordance with applicable data protection and privacy laws” (section 2.2.3), without specifying which laws apply to which athletes.

Importantly, any Medical Manager hired or retained by an international sport governing body to oversee “female eligibility” is asked to be guided by the interests of that private body and the terms of their employment or retention, rather than by patients’ interests and physicians’ ethical duties. In this way, all four legal pitfalls discussed above converge to form a web of legal jeopardy.

To summarize, the genetic tests mandated by WA and WB serve no medical purpose, but function instead as a discriminatory condition on the contractual agreement between athletes and sport governing bodies, thus vitiating consent while ignoring legal restrictions on the collection and possession of genetic information by private entities. Sex testing regulations in sport subject women to genetic testing they did not seek, under conditions that may ostensibly resemble clinical practice but are structured around the private aims of a sports organization, not consensual medical treatment.

The many points of legal exposure in international sex testing regimes

Due to the numerous points of conflict between WA and WB’s eligibility regulations and the laws of various jurisdictions, doctors may again refuse to participate in implementing them, as they did decades ago. Indeed, the World Medical Association has already repeatedly called on physicians to “take no part” in implementing eligibility regulations that are “not based on medical need” and “constitute a flagrant discrimination based on the genetic variation of female athletes and are contrary to international medical ethics and human rights standards.”

The last time WA recruited doctors to administer universal chromosome-based sex testing, prior to the 1994 Olympics in Lillehammer, scientists across the Nordic countries refused, on the basis that the test was unreliable, unethical, and discriminatory. After organizers of the 1995 Junior World Championships in alpine skiing in Voss argued that sex testing violated Norway’s Biotechnology Act, the Norwegian Social Affairs and Health Ministry recommend to the Parliament that the law be amended to explicitly ban genetic testing of sex characteristics in sport. The Act was amended in 1997, with the specifically stated intent of preventing such practices. As before, medical professionals and local sports organizers may again be the first line of defense against unlawful sex testing regulations in sport.

Legal action may also be taken by affected athletes (or in the case of minors, their parents or guardians) and/or their national federations.  Sport governing bodies like WA and WB impose mandatory arbitration on athletes and national federations, requiring that disputes about the validity of eligibility regulations be resolved exclusively by the Court of Arbitration for Sport (CAS). There, athletes may invoke the various legal instruments discussed above, although the CAS has tended to overlook specific domestic and international human rights norms. However, the European Court of Human Rights recently held that the Swiss Federal Supreme Court, when reviewing CAS awards for compliance with public policy, must conduct a “particularly rigorous examination” of human rights claims, including discrimination, arising in sport. The Court of Justice of the European Union also held that all national courts within the EU must subject CAS awards to heightened scrutiny when assessing their compliance with EU public policy. Further, under Article V.2 of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the New York Convention), each of the 172 states parties may refuse to recognize or enforce a CAS award if the matter is deemed non-arbitrable under domestic law or the award is contrary to domestic public policy.

There is therefore a growing risk that CAS awards will undergo more comprehensive human rights review by domestic courts, and that the sports regulations at issue will be temporarily or permanently blocked. Indeed, a Belgian court recently invalidated trans-exclusionary eligibility regulations of the international cycling federation (UCI) as unjustifiably discriminatory. This shift in the legal landscape should push the CAS to contemplate laws relevant to athletes’ human rights, including specifically regarding genetic testing.

In some cases, claims may also be brought directly before domestic courts, against local organizations or medical practitioners involved in implementing and enforcing international regulations within the relevant domestic jurisdiction. Further, other domestic authorities, like data protection or human rights commissions, may have relevant investigatory and decision-making powers. WA and WB’s regulations are therefore legally exposed not only for their substance – non-therapeutic and non-consensual genetic testing for discriminatory uses by a private entity – but also for their reliance on national-level actors, with clear obligations under both domestic and international law. Under Article 23 the Oviedo Convention, for example, states parties must “provide appropriate judicial protection to prevent or to put a stop to an unlawful infringement of the rights and principles set forth in this Convention at short notice.”

This post aims to serve such notice, not only to states, but also to WA, WB, and all those tasked with enforcing these international sport governing bodies’ genetic sex testing regulations. WA and WB are endangering not only athletes’ rights, but also national federations, medical practitioners, and other implementing actors around the world by exposing them to serious legal risk.