This week World Athletics has reintroduced gene testing for all athletes competing in female categories at world ranking events. The move is framed as a means of ensuring fairness in competition and protecting women competing in the female category. But is this truly in the best interests of the athletes it affects?
Gender eligibility in sport is not a new issue. Sports bodies have been wrestling with the conundrum of including gender diverse athletes – which includes both trans athletes and athletes with differences in sex development (DSD) – in competitive sport for many years, and there has been some progress in knowledge and understanding of this nuanced space
But the issue has become tense and polarised in recent times, in large part due to the UK Supreme Court ruling on the definition of sex this year. The implications for sport have been unintentionally far reaching, and sports bodies have placed further bans on trans females competing in the female category as a consequence. Shortly afterwards in the context of DSD athletes, the Grand Chamber of the European Court of Human Rights found that Caster Semenya was denied a fair trial over World Athletics rules requiring her to undergo hormone treatment to compete.
Despite highlighting concerns surrounding the rules, the Court stopped short of labelling them discriminatory.
Best option on the table?
In the past, sports organisations have relied on sex testing to determine eligibility – but these methods were eventually abandoned for being inconsistent, unreliable and unethical. In recent years, there has been a shift towards a more nuanced, case-by-case approach.
So, the decision to bring back gene testing is, in my view, a little regressive. Rather than advancing our understanding of sex and gender diversity in sport, it risks reviving outdated practices that violate athletes’ rights.
The gene test supposes that the possession of a Y chromosome produces superior athletic ability. It was eventually abolished because the impact of chromosomes on performance in sport is not definitive and chromosome sex determination is not always exact.
My colleague and I conducted a research project in 2019 examining the use of genetic testing in sport. We found that applying genetic criteria as a condition for competition could be incompatible with existing human rights and anti-discrimination laws.
A key concern is around privacy: requiring an athlete to undergo genetic testing may result in personal information that they may not even be aware of themselves being disclosed.
World Athletics reassurance
Although World Athletics has provided reassurance on this refreshed approach, stating it will handle genetic data with care, the risk of outing individuals or breaching confidentiality remains.
We’re talking about the dignity and rights of individuals, regardless of them being athletes. This testing is not being carried out for medical treatment or academic research – it’s being used to determine eligibility for the purpose of employment and selection. That places it on much more sensitive legal and ethical ground.
Meanwhile, jurisdictions vary on the legality of gene testing. In the United States, for instance, the use of genetic information in employment and insurance contexts is legally prohibited. In some countries, using genetic information in this way is outright illegal – so sporting bodies need to tread very carefully.
This issue cannot be viewed from a scientific perspective alone. We have to account for law and ethics too. It requires a multidisciplinary approach that respects the dignity, privacy and inclusion of all athletes.
Ultimately, we must ask ourselves: what is the objective here? If it is to protect the integrity of women’s sport, is gene testing truly a necessary and proportionate tool to achieve that aim? Or could it do more harm than good?
Dr Seema Patel is an Associate Professor at Nottingham Law School
