A/HRC/44/26 about the public exhibition of the female body, and exposure to physical exertion and risk. 50 Because women’s participation in sports was managed according to a strict two-sex categorical division, concern for who belonged in the women’s category arose almost immediately, giving rise to female eligibility criteria, which remain in place. 25. So-called sex testing (also called femininity testing or gender verification) began in the 1930s as ad hoc, suspicion-driven testing of women athletes based on their physical appearance. In the 1960s, this practice evolved into mandatory universal certification of all women athletes seeking to compete in international competitions governed by the International Association of Athletics Federations (IAAF) 51 and/or IOC. 26. The processes, methods and criteria for determining sex have shifted over time, from physical inspections to biological sampling, at first for chromosomal karyotype and specific genes and more recently for endogenous testosterone levels. 52 While most individuals have innate sex characteristics that fit typical expectations for female or male bodies, this is not true of everyone and no single marker is determinative of male or female sex. 53 27. In the 1990s, under pressure from its own policymakers, medical professional organizations and athletes, IAAF and then IOC stopped the practice of mandatory sex testing of all women and reverted to suspicion-driven testing that targeted women whose bodies were perceived as “masculine”.54 28. In 2011, IAAF (in consultation with IOC) released new regulations governing the eligibility of women with “hyperandrogenism” to compete internationally. These regulations restricted the permissible amount of naturally occurring testosterone in female athletes and required them to undergo interventions to lower their testosterone to specified levels in order to compete.55 IOC has issued its own version of such regulations. 56 29. These regulations have come under scrutiny for their impact on athletes’ rights to nondiscrimination, as well as the continued use of a single biological marker for determining sex. Questions have also been raised regarding the selective use of scientific evidence, as the underlying claim that higher natural testosterone provides some women with a competitive advantage over other women, and the magnitude of any performance difference, remains unsettled in the scientific literature.57 30. In 2015, the Court of Arbitration for Sport suspended the IAAF hyperandrogenism regulations on the basis that they were unjustifiably discriminatory: the evidence did not establish that “hyperandrogenic” females enjoy a performance advantage over their peers sufficient to justify their exclusion from the female category of competition. 58 The Court granted IAAF two years to provide additional evidence, failing which the regulations would become void. 31. In 2018, IAAF issued new eligibility regulations for the female classification, which apply only to women with particular variations in sex characteristics. 59 These regulations set eligibility criteria which, inter alia, require women athletes with variations in sex 50 51 52 53 54 55 56 57 58 59 Susan K. Cahn, Coming on Strong: Gender and Sexuality in Twentieth-Century Women’s Sport. (Cambridge, Harvard University Press, 1995). Renamed World Athletics in October 2019. Vanessa Heggie, “Testing sex and gender in sports: reinventing, reimagining and reconstructing histories”, Endeavour, vol. 34, No. 4 (2010), pp. 157–163. OHCHR, “Background note on human rights violations against intersex people”. Vanessa Heggie, “Testing sex and gender in sports”. “IAAF regulations governing eligibility of females with hyperandrogenism to compete in women’s competition” (2011). “IOC regulations on female hyperandrogenism” (2012). Katrina Karkazis and Morgan Carpenter, “Impossible ‘choices’: the inherent harms of regulating women’s testosterone in sport”, Journal of Bioethical Inquiry, vol. 15 (2018), pp. 579–587. Court of Arbitration for Sport, Dutee Chand v. the Athletics Federation of India and the International Association of Athletics Federations, Case No. CAS 2014/A/3759, interim arbitral award, 24 July 2015. IAAF, “Eligibility regulations for the female classification (athletes with differences of sex development)” (2018). 7