Interview: Katrina Karkazis and Michele Krech on Gender Binaries in Sport

Brenda talks to bioethicist Katrina Karkazis and lawyer Michele Krech about the scientific, legal, and ethical challenges to gender binaries in sport.

This episode was produced by Martin Kessler. Shelby Weldon is our social media and website specialist.

Transcript

Brenda: Hello flamethrowers, Brenda here. As you know by now, we’re releasing our interviews on Thursday. Here’s our latest conversation about the recent ruling on Caster Semenya, the faulty science behind gender binaries in sport, and how we can think about a more inclusive landscape. Just a heads up: you’ll notice the audio quality changes a bit toward the end. We think the conversation just got a little spicy for our primary recording, so we had to go back to the backup for a bit.

We are thrilled today to have with us two real expert, and beyond that real import figures in thinking through the challenges that have come to shake the foundations of the gender binary at the heart of the sports world and the segregation that institutions try to put on that landscape. So, today we have with us great friends of the show, Katrina Karkazis. Dr. Karkazis is an anthropologist and bioethicist; she is in the women, gender, and sexuality program at Emory. And we also have Michele Krech, a lawyer and doctoral candidate at the NYU School of Law where she teaches transnational sports governance and has co-founded the Feminist Legal Theory Reading Group. Thank you to you both for being here – welcome to Burn It All Down.

Katrina: Thank you for having us.

Michele: It’s a pleasure.

Brenda: So I’m gonna start with you, Katrina, and just ask you: the last time that you were on this show was right on the heels of Caster Semenya’s case when it came up at the Court of Arbitration for Sport, and at that time they rejected her appeal to reject the testosterone argument that limited the amount that she could have to be able to run in her events. Has anything substantively changed in terms of the medical reasons that they’re giving for trying to put these regulations in place?

Katrina: Substantively, no. It’s still really the same kinds of series of arguments. It is true that earlier on there were a series of arguments including that women lowering their testosterone would be healthier than if they had left it unaltered, but those kinds of arguments have really slipped out of the way, and so the kind of narrative that’s happening right now is really one of testosterone being the primary and most important determinant of athleticism, and that which explains performance differences between men and women. But that quite significantly its not a level alone per se, and so one of the more nefarious things that I think happened in between Dutee Chand’s case and Caster’s case is that there was a narrowing down of the women to whom it applied. So you might say, alright, if they set a threshold then this applies equally across all women.

But they did something that’s more sinister which is to say only some women with testosterone above this threshold, and they made that determination based on normative ideas about women’s bodies and really singling out women who have what are non-normative sex characteristics, whether those are chromosomes or gonads. So in just really plain terms: if you are a woman with testosterone above the threshold and you have XX chromosomes you can compete, and if you have XY chromosomes you cannot in these particular restricted events. Someone’s chromosomal status is immaterial to why it is that this level should matter or come to matter in terms of the body. The reason I say this is it really highlights I think what had been more obscured earlier on, which is this continued invest in only allowing certain women to compete and in excluding women who have variation in sex characteristics and reinforcing the longstanding scrutiny of women and exclusion of women in the way that sex testing policies have done for decades.

Brenda: Why do you think the focus is on testosterone? Maybe you could just mention your book right here for people who wanna take a deeper dive into that.

Katrina: Sure. So, the book is written with my longstanding collaborator, Rebecca Jordan-Young, at Barnard, and it’s called Testosterone: An Unauthorized Biography; Harvard University Press put it out almost a year ago, but don’t be scared that it’s a university press! We worked really hard to make it accessible to a wider audience than just the certain pointy heads in academia. There is a whole chapter in there about athleticism which is work that we haven’t published elsewhere. You know, the turn to testosterone I think is a molecule of convenience here, and one of the things that I’ve been thinking a lot about lately is that if testosterone itself was not gendered as a hormone I actually don’t think that they could be making these kinds of regulations and the arguments that they make about these regulations. So there’s a way in which its identity as a male sex hormone and a hormone associated with all things masculine and manly allows it to be a convenient narrator, a convenient scapegoat, a convenient cause that allows them to not only make the claim that higher levels are somehow foreign to women’s bodies or bad for women, but simultaneously to say that it is also that which propels athleticism, and it’s almost as though it’s a dose-response kind of argument even though to be really clear we’re not talking about doping.

There’s still this kind of logic in what they’re saying, that sort of the more you have the better you will do, which absolutely does not fit the broader scientific literature. But as I’ve been talking to people about this for ten years it’s really frustrating to people who try to think about this through logics and rationality to try to understand what’s happening, and that’s not how you can understand what’s happening. You have to understand it though a political lens and the way in which science is being conjured to support a desired outcome, and that outcome is exclusion of women with higher than typical testosterone levels.

Brenda: I’m going to ask directly now about the Caster Semenya ruling, which last week came from the Swiss federal court. It was the appeal to the CAS case that we had discussed last time, and before I do I should mention that Michele served as an expert consultant to Caster Semenya’s team and that Katrina contributed to Dutee Chand’s successful appeal of the IAAF testosterone regulation at CAS, and served as an expert witness in the hearing and also consulted with Caster Semenya’s team. So, we just wanna put all the disclaimers out there that we need to. Michele, cold you speak a little more directly to what your takeaway is from this decision on the part of the Swiss court?

Michele: Yeah, I think there’s two really important sort of technical legal points that are important to understand because they really shape how this decision plays out. The first is that basically the Swiss supreme court has an extremely limited scope of review in its ruling on an appeal against an international arbitral decision, as it was in this case. So, besides claiming any procedural irregularity there’s only one possible substantive ground of appeal and that’s that the decision is incompatible with Swiss public policy. This is a very limited concept and we should definitely get into that, but perhaps of particular interest to the listeners: a violation of a provision of international human rights law, whether domestic or international, is not sufficient in and of itself to be a breech of Swiss public policy.

So, I think that’s one very significant thing. Then the second is that when the Swiss court is sort of reviewing the decision of the Court of Arbitration for Sport it’s not reviewing the decision as a whole – it has to accept all the facts as established by the Court of Arbitration for Sport. It cannot question these, change them, or add to them. Even if they’re wrong. So, I know Katrina will have a lot to say about that because she’s the facts person here. But I think we can’t really understand why this decision ended up the way it did without being cognizant of those two factors. 

Brenda: So if you’re taking the labor of someone like Caster Semenya and restricting that labor by saying it doesn’t, you know…Human rights violation doesn’t matter, because Swiss public policy matters. Where is a better place to see justice served?

Michele: That’s a really excellent question and one that I think so many people including myself are struggling with right now. There are many options, and the fact is that most have not been tested. So it’s hard to say with certainty which would be the best option. We can see that the Court of Arbitration for Sport has been tested and has yielded highly unsatisfactory results, so perhaps that’s not the best option. But other possibilities – domestic courts or international human rights courts – also have their limitations in terms of who has standing, who can actually bring a case before them. When were talking about an international context like this, you know – where’s the athlete from? where’s the international federation headquartered – those are all complex questions about standing and jurisdiction. So it’s yet to be seen, but I think it’s probably safe to say that this won’t be the last challenge to these types of regulations.

Katrina: Can I quickly add something to that, Brenda?

Brenda: Please.

Katrina: Someone asked me the other day if this set a precedent. I’ve never been asked that before, and the answer that came out is one that I’m actually okay with, which is that I actually think that it does set a precedent. It sets a really important negative precedent. I think that precedent is that it allows regulations that harm, that violate medical ethics, and that infringe on international human rights to stand. And that it underscores for me now through both cases plus the appeal that women athletes basically have near-insurmountable barriers as they try to seek redress for their rights because in these mechanisms that are available, that have been used so far, in my view, have failed to account for violations of those rights. I don’t actually think it’s possible in these to make the harm legible.

That is the part that I really am struggling with, and it resonates I think with so many other issues that are happening in the world right now, of how do you make a harm that is evident to those bringing the case, those that are narrating their lives, and those who because of reasons of authority and credibility and who’s a reliable narrator and questions about injustice and epistemic injustice about whose stories are taken seriously and whose stories are sort of elevated. Right now the story that’s being told is one of science, but that’s absolutely not the only story to tell here, and it’s not the most important story, and yet we’re stuck in this loop where we keep having to argue here and the issues that are important are over here, and that is a source of really deep frustration for me.

The other thing I’m thinking is it may not be obvious to people how costly it is to bring a case like this, and the fact that you are thrust into the media spotlight…Caster was already a very well-known, famous international athlete when she brought her case and I think had already unfortunately been toughened through the scrutiny that was applied to her. Dutee was young. She was a teenager still, and the resources themselves are prohibitive, never mind…It doesn’t mean as you’re bringing a case that you’re necessarily allowed to run, so you can still be sidelined for years – and perhaps the most important years of your career – as you try to marshal all of the resources – social, psychological, financial and et cetera – to be able to bring a case, only to have it go on for years. I mean, it’s important that Dutee’s case from the time she was barred began in 2014, and here we are this many years later. You know, she’s allowed to compete because her events were not included in the restricted events, but…I don’t know. It’s so important to recognize that it’s not just Caster, that there are many other women in the global south who are women of color, who are being disadvantaged and harmed by these regulations. 

Brenda: I’m gonna ask you to talk about that a little more because it’s hard not to notice that the women who seem to be subject to this first and foremost are being arbitrated in Europe and are from the global south. Can you speak to that a little bit?

Katrina: You know, it’s like…How to talk about this? Because it hasn’t always been women of color from the global south; we lose sight of that, especially contemporary analyses. So there is a way in which the scrutiny has varied at particular times and affected different populations of women at various times. There’s no question that at this moment these iterations if you will of these regulations disproportionately if not exclusively – I haven’t found any example that doesn’t fit this – target and harm women of color from the global south. There are myriad reasons, and you will see some analyses or commentary that I think point to kind of the white, western gaze and white norms of femininity, and that’s absolutely operating, but that alone cannot explain what’s happening here. It can’t explain it because it doesn’t also disproportionately affect women of color from the global north. So there’s a way in which I think these regulations can be understood in a medical-colonial framework where it is primarily people with PhDs and MDs – though not exclusively, but overwhelmingly – that are creating policies that force women from the global south to conform to intervention paradigms for babies that have been born with diagnoses that would give them higher than typical testosterone in the global north. Those babies have had no ability to contest or consent the interventions that have happened to them at birth, and so it’s not that there are more women in the global south with sex variations, it’s that the women in the global north have had non-consenting nonconsensual irreversible interventions on their bodies so they’re not living with higher than typical testosterone levels, generally speaking. I think this is gonna change, and I think it’s gonna change in part because the kinds of interventions that World Athletics is essentially recommending and mandating are ones that people with these variations have been challenging for three decades, and so it’s an outmoded paradigm to sort of normalize, if you will, bodies thought to be not conventional enough, and to do that in a way that is not under the guise of what is best for the woman medically or otherwise – indeed, it’s not under the direction or advice of a physician at all. It’s in order to comply with a mandate in order to continue their careers. So, I think there’s multiple intersecting things that are happening at once because there’s no question too, though, that there are racialized gazes around femininity and norms for femininity that also affect who it is that looks suspicious or becomes suspicious, and then who it is that might have high testosterone will be limited, you know, based on whether or not somebody’s been intervened upon early in life. So it’s a really complicated nexus, but I think the most important thing is that it is people in rooms in the global north who are maybe vast majority white, maybe not all, who are making regulations that harm women from the global south.

Brenda: Michele?

Michele: I would just add that a lot of what Katrina is saying has actually been recognized in sort of official ways let’s say, at both domestic and international levels. The UN high commissioner for human rights recently released a report references these kinds of points about the intersection of racism and discrimination against women in sport. All kinds of NGOs who are interested in justice for racialized or intersex people have spoken out against these regulations. Sport ethics center, the medical association, has spoken out against these. So this is widely recognized as a problematic approach to quote-unquote “gender equality in sport.” So, what we have here is sort of…We’re really seeing the autonomy of sport governing bodies, because despite all this criticism, both sort of political or policy-based and legal, they are able to continue because of the way the system is set up.

Brenda: And I would like to ask a specific question about that. I mean, is that part of the appeal of deciding to have the IOC and FIFA in Switzerland?

Michele: It’s a great question. Two legal reasons: one is the tax system, and the other that’s maybe a little more pertinent to this case is the power of review of the Swiss supreme court. Monaco might be another option – that’s where World Athletics is, and it’s working pretty well for them.

Brenda: And it’s working wonderfully for CONMEBOL to be in Paraguay. It’s worked wonders. So, we’ve seen this…To your point about sports governance and what these federations are able to continue to operate within and outside, legally speaking, is pretty striking in terms of the parallels around the world. So, I have to ask, I guess more from an emotive perspective, because you’ve laid out just such strong arguments all the time and generous explanations. Why do you think the entrenchment and the investment in keeping these women out of sport is happening again and again and again – even with all of this increased, you know, statements by United Nations and medical evidence and, you know…What is their investment in this?

Michele: These sports organizations were founded for the most part as male-only organizations that governed only men’s sport. Incorporating women into it was seen to be a very, you know…It’s very complicated, how are we gonna do it? The simplest way, it was just assumed from the beginning, we’re gonna divide. I think these sports federations are sort of geared towards conservatism and traditional ideas about sport and about society in general. I mean, it also goes to the way that people are elected or appointed to these sport bodies. The turnover is low…I think there’s so many factors contributing to it. The one that’s most troubling to me is the idea that sport is somehow special and different from every other context in the world, whether we’re talking about an employment context or a social context. That’s very evident in this most recent decision. I mean, the Swiss court agreed with CAS that, you know, ensuring fair sport is a completely legitimate interest. Basically, that can justify serious infringements of the rights of athletes. This is not me giving examples – this is what the court specifically said. We’re already doing this in doping. Women’s bodies are already scrutinized for anti-doping purposes, so this is just how it is in sport. That’s the part, especially as a former athlete, I find that just mortifying if you wanna talk from the emotive perspective like you said. 

Brenda: Katrina?

Katrina: Yeah. [laughs] I’m squirming right now. Yes, everything is embodied right now, every feeling I have…You know, I was texting with someone today who I think, again, was like, “I don’t understand.” One of the things Michele talked about is like, “The science doesn’t support this, I don’t understand.” It’s really important to say while I’m harping on the science for one more second: CAS was not unanimous in its assessment of the science, if I’m remembering this correctly. There were multiple areas in which the arbitrators were split, and one of them was around the role of testosterone in athleticism. Right, Michele? And the second one was about the harm of the interventions to lower T? Is that…? I mean, there are others. But those two?

Michele: I think that’s fair to say. It’s a little difficult to…They don’t identify the arbitrators specifically. At one point in the decision it just stops from being “all of us” to “the majority.” 

Katrina: Exactly – “the majority.” So you can read between the lines to understand that there was someone dissenting, and it was around these issues as well as others. So, I have so many thoughts in my head, but one of the things that is frustrating is the way that that contestation gets obscured as we move through CAS to the Swiss court, because that fact can no longer be contested. So it gets cemented as fact as we move along, but there’s no new data or information to actually support that. The other thing I think that is baffling and upsetting is the way that the regulations and the arguments around them and the decisions that come from these court cases invert the operations of power and harm so that the least advantaged are figured as the unfairly advantaged, right? And so this is really problematic, and somehow this is normalized. Michele, I would like it…Sorry, now I’m taking over. [laughs] But I would like you to comment on this other…I’m trying not to use the word “crazy” because it’s ableist… 

Brenda: You can always say fucked up on Burn It All Down.

Katrina: Thank god! Fucked up. Okay, yes, let’s use it. Now the dog is excited, like, why am I yelling? [laughs] Because there’s this language that keeps popping up about competing rights. What the fuck competing rights are happening? The right to win? There is no right to win. What rights? Someone articulate for me what the rights are of the athletes whom these regulations privilege or advantage or the worldview it reflects. I’m not sure what rights are getting trampled. When you put that against the actual real harm that are happening to women – of physical inspections, of…And I’m sorry, you can say that doping provides some degree of physical inspection – nobody’s putting shit up your vagina and nobody is measuring your clitoris and nobody is asking you about your sexual history and who you’re attracted to and what your identity is, blah blah blah. That does not come as part of doping, right? This is very different.

So there’s this idea somehow that that level of invasiveness is okay, and you need to go through that just to be ruled in to compete – not ruled out, but just to be ruled in! And then if it’s too high you lower it though these interventions which for some women can be sterilizing. We’re talking about possibly torture, because the special rapporteur on torture has talked about these kinds of interventions on people with intersex variations. We’re talking about physical integrity, you know…A whole bunch of things that Michele already mentioned were outlined in the UN report that came out from the office of the high commission. Then to just get this glib little statement…I admit my French is not such that I was eager to dive into this longer report that came out from the Swiss court, but the press release was in English, and somehow based on no further evidence the Swiss court decided that somehow this didn't disrupt the core human right to bodily integrity, that that was still intact despite all of this. Says who!? Michele, can you talk more about…I feel like you’ve been thinking about this whole competing rights argument…Or you can talk about whatever you want. [laughs]

Michele: I think that there’s absolutely a contradiction there, because on one hand supporters of the regulations, including the courts, would say there is no right to win or to compete at the highest level when it comes to women with differences of sex development. So that’s why we’re not violating their rights – there’s no right to be the best, so we can make you do all these things. But then on the other hand they’re upholding the regulations on the basis that there is such a right for women who don’t have differences of sex development. So the reason that we can have these regulations is because these women have the right to compete at the highest level. So yeah, I don’t find this competing rights argument compelling, and especially because it is premised on sort of, I think, putting the cart before the horse. If we’re already deciding there’s two groups of women and that they’re relevantly different and then thinking about what are their respective rights. So, before even getting into all the science that, Katrina, you’re the expert on. We’re deciding already that there are two groups of women and one is worthy of protection and one is not, before we even get into the rights discussion.

Brenda: Well, given everything we’ve discussed, are there things that we should feel hopeful about coming out of this process…? Is there some way to scrape together some optimism to keep fighting the good fight?

Michele: I can think of two hopeful points. One is that I do think, despite what the court of arbitration has said and what the Swiss supreme court has said, in broader society the point is becoming – in many parts of society, anyways – the point is becoming so clear that it is questioning someone’s sex and gender identity to impose these regulations. So these courts say that these regulations are not doing that, but I think that argument is really getting weakened just in popular discourse and legal discourse. So I’m hopeful that in some number of years that’s no longer gonna stand and that won’t be part of these kinds of decisions anymore. The other thing that makes me the most hopeful, honestly, is Caster Semenya and other women like her, who are just so courageous and won’t back down. I mean, without women willing to stand up and unfortunately face all the scrutiny that comes with it we might not even know what’s going on. Their courage and determination really is what gives me hope.

Katrina: I feel some hope and some despair. I’ve already talked a lot about my despair points so I won’t revisit the highlights of the despair. But I will say that…You know, you had asked much earlier in the conversation, Brenda, about why is this happening, and in my mind it’s patriarchy. The reason that we have these regulations is about long-standing…Through myriad venues, right? Whether it’s reproductive rights or anything else, really, that involves women’s bodies, a desire to control women’s bodies and to police women. I don’t view this as being separate and it’s part and parcel with policing the category. One of the most interesting things is if you look back historically what we know is that the sex binary in part was deeply tied to white supremacy, and there’s more work that people could read about this, but the idea was that actually white people were the most sexually differentiated. So that was like the highest evolution, if you will, of the binary. Black women weren’t been considered in that binary. So we see some of this replicated here, these really old standing kind of paradigms.

So, that said, I don’t have a lot of hope for that going away. However, I think the challenge to these regulations is joining up with broader challenges that people are bringing around #MeToo, around transphobia, around issues of gender equity in sport like pay. All of that I think is bringing attention to the way that these forces seek to confine, oppress, minimize, hold back, judge, scrutinize women. That larger conversation and all of the people working specifically on these regulations and on those issues more broadly, like the whole podcast crew that you all have been pounding away for so long – that is what’s gonna make it change. I think people see through these false arguments. These arguments are not sophisticated! [laughs] They’re arguments of convenience, they’re arguments that echo normative gender ideologies, they’re on the wrong side of history. We just need a bit more time to really cement that. 

Brenda: As an historian I endorse that. [laughs] I think one of our favorite parts of our job is to get to decide who is on the right and wrong side of history, so on behalf of all historians that wouldn’t want me speaking for them – or that would – I’d like to say that you both are very much on the right side of history. On behalf of the podcast I am truly grateful you’ve come on to share your expertise and wisdom and passion with us once again. So, Dr. Katrina Karkazis and Michele Krech, thank you so much for being on Burn It All Down.

Michele: Thanks for having us.

Katrina: Thank you.