We, the undersigned legal experts in human rights and sports, issue this statement out of urgent concern about the regressive move toward genetic testing as a precondition of participation in women’s sport. Such eligibility rules, which have already been adopted by several major International Federations—including World Athletics, World Boxing, World Aquatics, and the International Ski and Snowboard Federation—not only conflict with the IOC’s existing guidelines on the matter, but also violate domestic and international laws that protect human rights and regulate the use of genetic testing and genetic information.
Violations of the IOC Framework
The IOC’s Framework on fairness, inclusion and non-discrimination on the basis of gender identity and sex variationsoutlines fundamental principles to be followed within the Olympic Movement when defining eligibility criteria for the men’s and women’s categories of competition. According to the Framework, any such eligibility criteria should be aimed at ensuring that no athlete has an unfair and disproportionate competitive advantage or at preventing a risk to the physical safety of other athletes. Under the Framework, such an advantage or risk cannot be presumed based on an athlete’s sex variations, physical appearance, or transgender status. It must instead be established based on evidence in the form of robust and peer reviewed research.
In particular, such evidence should be “based on data collected from a demographic group that is consistent in gender and athletic engagement with the group that the eligibility criteria aim to regulate” and must demonstrate “disproportionate competitive advantage and/or unpreventable risk exists for the specific sport, discipline and event that the eligibility criteria aim to regulate.” Contrary to this evidence-based approach, exclusion based on the presence of the SRY gene constitutes a categorical ban based on a single biological marker, rather than on peer-reviewed research demonstrating that transgender athletes and/or athletes with sex variations have a disproportionate competitive advantage or pose an unpreventable safety risk in specific sporting disciplines.
Moreover, the IOC Framework advises International Federations to prioritize athletes’ health, wellbeing, bodily autonomy, and privacy. Current genetic sex testing rules fail to do so, in violation of numerous domestic and international laws, which we urgently draw attention to below.
Violations of national, regional, and international human rights laws
As several Special Procedures of the UN Human Rights Council have observed, genetic sex testing as a condition of eligibility for women’s sport infringes on athletes’ internationally recognized rights to equality, bodily and psychological integrity, and privacy.
Further, the IOC, along with the many International Federations based in Europe, must comply with the European Convention on Human Rights. Indeed, the European Court of Human Rights has recognized that the failure of a sport governing body to respect human rights may engage the responsibility of Switzerland under the Convention and, further, that the Swiss Federal Supreme Court must subject female eligibility rules in sport to particularly rigorous review given the seriousness of the personal rights at issue, including privacy, bodily and psychological integrity, economic freedom, and human dignity.
We consider that mandatory genetic sex testing, and the exclusion of women athletes on this basis, violates Articles 8 (right to respect for private life) and 14 (prohibition of discrimination) of the European Convention. Such violations can only be justified if the eligibility rules are reasonable, necessary, and proportionate, which International Federations bear the burden of proving and which they are currently unable to do. As the European Court of Human Rights recently recognized, the harms of sex testing include the inevitable disclosure of certain athletes’ private and confidential medical information, the potential loss of their livelihoods, and a range of other serious harms. In our view, these consequences—and particularly the social exclusion, psychological distress, physical harm, and material loss that accompany them—cannot be considered reasonable and proportionate to the aim pursued. This is particularly so given the absence of conclusive scientific evidence demonstrating that transgender women athletes or athletes with sex variations have a systematic advantage over other women athletes.
The exclusion of athletes on the basis of genetic sex testing likewise violates domestic laws, as a Belgian court recently concluded, finding that international cycling regulations barring transgender women were discriminatory, lacking a sound scientific basis, and disproportionate.
Violations of laws regulating genetic testing and genetic data
Genetic sex testing as a condition of participation in sport also violates numerous national, regional, and international laws, which strictly circumscribe the use of genetic testing and genetic data.
First, the Convention on Human Rights and Biomedicine, along with the domestic laws of many jurisdictions, prohibit genetic testing unless it serves a health-related purpose, which sex testing rules clearly do not. Some domestic laws place additional restrictions on the range of permissible medical purposes when it comes to minors, however International Federations apply genetic sex testing rules indiscriminately to athletes of all ages. Because of such domestic legal restrictions, athletes in some countries have been pushed to access genetic testing abroad, in less protective jurisdictions.
Second, across jurisdictions, free and informed consent is a fundamental precondition for genetic testing. Not only do individuals below a certain age lack the legal capacity to consent, the consent of an athlete of any age cannot be freely given when it is a condition of sports eligibility. Illustrating this legal principle, 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, yet sports eligibility rules do exactly that. While many jurisdictions require the provision of non-directive genetic counselling prior to any testing, this safeguard is nullified by the directive nature of sports eligibility rules.
Third, domestic and international laws prohibit discrimination based on genetic characteristics, as well as the use of genetic data in ways that stigmatize individuals or groups. Yet genetic sex testing rules do so, first, by targeting only women athletes for testing, and second, by excluding those with a particular genetic trait, resulting in the further stigmatization and marginalization of transgender and intersex people, not only in sport but in society at large.
Fourth, in order to prevent such discrimination, certain jurisdictions specifically prohibit making genetic testing or disclosure of test results a condition of a contract and prohibit anyone other than medical practitioners or researchers, and particularly employers, from requesting or using genetic information. International Federations cannot circumvent these legal restrictions by outsourcing genetic testing to authorities at the national level.
Finally, privacy and data protection laws around the world, including the General Data Protection Regulation(GDPR) afford heightened protection to genetic information. The GDPR prohibits the processing of genetic data, except in very narrow circumstances, such as where the data subject gives explicit, voluntary and informed consent, or where the processing is necessary for and proportionate to reasons of substantial public interest set out in EU or member state law. Such voluntary and informed consent does not exist for genetic sex testing as athletes are forced to grant consent under the threat of exclusion from sport, and often in circumstances where they are not knowledgeable about the risks of harm that might result from the data processing. There is also no EU or member state law that describes the purported aim of sex testing in sport as a substantial public interest and, even if there was, the data processing in pursuit of that aim would not be necessary and proportionate due to the absence of scientific evidence that women with the SRY gene have a competitive advantage over other women athletes and the significant harms to athletes that can result from genetic sex testing.
The processing of genetic data for sex testing may violate other data protection laws that have been recognized as providing an adequate level of protection similar to the GDPR, such as the data protection laws in Brazil, Canada, Japan, Switzerland and the United Kingdom.
Our Call
We call on the IOC, as it finalises the work to find a “consensus” to “protect the female category”, to reject mandatory genetic testing as a condition of eligibility. We call on International Federations that have already adopted such eligibility rules to withdraw them immediately. And we call on all sport governing bodies to recommit—in practice, not only in policy—to the principles of inclusion and non-discrimination that they have already affirmed.
If international sport governing bodies fail to do so, we call on National Federations to refuse to apply and implement international eligibility rules that violate their respective domestic laws and international legal obligations. Simultaneously, we call on states to urgently review the legality of mandatory genetic sex testing policies that are being applied to athletes and/or at competitions within their jurisdictions.
We also call on athletes to challenge the national or regional implementation of mandatory genetic sex testing, demanded by the IOC or International Federations, before domestic courts, by invoking national or regional laws protecting human rights, prohibiting anti-discrimination, and regulating the use of genetic testing and genetic data.
At the same time, we call on courts, particularly the Court of Arbitration for Sport, the Swiss Federal Supreme Court, and ultimately the European Court of Human Rights and the Court of Justice of the European Union, to uphold their duty to ensure a particularly rigorous review of the rules and decisions of the IOC and International Federations, which is compliant with European human rights law and public policy.
Mandatory genetic sex testing is a stigmatizing and exclusionary policy that lacks democratic legitimacy, scientific grounding, and proportionality between its harms and its aims. It simply has no place in international sport if sport is to be respectful of the values of human dignity, inclusion, fairness, and non-discrimination.
First signatories:
Dr. Antoine Duval, T.M.C. Asser Instituut, The Netherlands
Dr. Michele Krech, Toronto Metropolitan University, Canada
Signatories
1. Dr. Cem Abanazir, Manchester Metropolitan University, United Kingdom
2. Rafia Akram, University of Pretoria, South Africa
3. Dr. Shreya Atrey, University of Oxford, United Kingdom
4. Francis Awaritefe, lawyer, Professional Footballers Australia (PFA), Australia
5. Dr. Mathieu Le Bescond de Coatpont, Université de Lille, France
6. Manon Beury, Geneva Graduate Institute of International and Development Studies, Switzerland
7. Dr. Audrey Boisgontier, Paris Nanterre University, France
8. Jensen Brehaut, Osgoode Hall Law School - York University, Canada
9. Prof. Eva Brems, Ghent University, Belgium
10. Prof. Erin Buzuvis, Western New England University School of Law, USA
11. Dr Seamus Byrne, Manchester Law School, Manchester Metropolitan University, United Kingdom
12. Prof. Gillian Calder, University of Victoria, Faculty of Law, Canada
13. Dr. Pieter Cannoot, Ghent University, Belgium
14. Amritananda Chakravorty, Advocate, India
15. Jonathan Cooper, University of Gloucestershire, United Kingdom
16. Prof. Sharon Cowan, University of Edinburgh, United Kingdom
17. Dr. Martine Dennie, University of Manitoba, Canada
18. Moya Dodd, lawyer, Former Matilda (Australian Women’s Football Team), Australia
19. Nikki Dryden, lawyer, The Right Collective, Australia
20. Dr Eleanor Drywood, School of Law and Social Justice, University of Liverpool, United Kingdom
21. Prof. Maria C Dugas, Schulich School of Law, Dalhousie University, Canada
22. Prof. Ariel Dulitzky, University of Texas at Austin, School of Law, USA
23. Dr. Hilary Findlay, Brock University (retired), Canada
24. Deekshitha Ganesan, Human rights lawyer, Germany
25. Dr. Ryan Gauthier, Thompson Rivers University
26. Alexandra Gómez Bruinewoud, Director Legal at FIFPro, The Netherlands
27. Kaushik Gupta, Senior Advocate High Court at Calcutta, India
28. Dr Matthew Harvey, Victoria University Melbourne, Australia
29. Dina Francesca Haynes, Orville H. Schell, Jr. Center for International Human Rights and Yale University, USA
30. Prof. Kristin Henrard, Brussels School of Governance, Free University Brussels, Belgium
31. Dr. Daniela Heerdt, T.M.C. Asser Instituut, The Netherlands
32. Tim Holden, Solicitor admitted in Australia, Australia
33. Dr. Lena Holzer, University of Cambridge, United Kingdom
34. Shubham Jain, University of Cambridge, United Kingdom
35. Timothy Kajja, Advocate of the High Court of Uganda, Uganda
36. Dr. Ido Katri, York Institute of Science and Technology, Canada
37. Prof. Bruce Kidd, University of Toronto, Canada
38. Prof. Jennifer Koshan, Faculty of Law, University of Calgary, Canada
39. Prof. Mélanie Levy, Health Law Institute - Faculty of Law - University of Neuchâtel, Switzerland
40. Marcus Mazzucco, University of Toronto, Canada
41. Dr. Julie Mattiussi, Associate Professor, University of Strasbourg, France
42. Pedro José Mercado Jaén, European University Instute, Italy
43. Alice M. Miller, Global Health Justice Partnership of the Yale Law and Public Health Schools, Yale University, USA
44. Bárbara Monzerrat Meré Carrión, Legal Counsel at FIFPro, The Netherlands
45. Dr. Tomáš Morochovič, University of Edinburgh, United Kingdom
46. Prof. Benjamin Moron-Puech, Université Lumière Lyon 2, France
47. George Newhouse, Human rights lawyer, Australia
48. Dr. Matt Nichol, Central Queensland University, Australia
49. Khayran Noor, International Sports Lawyer, Kenya
50. Dr Catherine Ordway, University of New South Wales, Australia
51. Prof. David Pavot, Université de Sherbrooke, Canada
52. Prof. Debra Parkes, Peter A. Allard School of Law, University of British Columbia, Canada
53. Dr. Seema Patel, Nottingham Law School, University of Nottingham, United Kingdom
54. Prof. Carmen Pérez-González, Universidad Carlos III de Madrid, Spain
55. Prof. Isabelle Rorive, Université Libre de Bruxelles, Belgium
56. Mihir Samson, Advocate, India
57. Dr. Yassine Sangare, King Stage Business School, United Kingdom
58. Maya Satya Reddy, Former Professional Golfer, founder of the Harvard Law School LGBTQ+ Advocacy Clinic Sports Project, LGBTQ+ Sports Law and Policy Consultant (JD), USA
59. Kate Scallion, Jones Emery LLP, Canada
60. Dr. Bérénice K. Schramm, Galatasaray University, Turkey
61. Jhuma Sen, Advocate, Calcutta High Court, India
62. Dr. Faraz Shahlaei, LMU Loyola Law School, USA
63. Dr. Maayan Sudai, University of Haifa, Israel
64. Prof. Jessica Tueller, University of Oklahoma College of Law, USA
65. Faranaaz Veriava, University of Pretoria, South Africa
66. Prof. Ekaterina Yahyaoui Krivenko, University of Galway, Ireland
67. Dr. Jan Zglinski, LSE Law School, United kingdom
68. Monique Hennessy, ANZLA, Australia
69. Indiradevi Kollipara, Sports and Gaming Lawyer, India
70. David Rutherford, Human rights lawyer, New Zealand
71. Prof. Alberto Carrio Sampedro, Pompeu Fabra Universiry, Spain
72. Sam Chollet, PhD Candidate, Université de Lausanne, France/Switzerland
73. Daniel Cardona A, Sports lawyer, Colombia
74. Dr. Alice de Jonge, Monash University, InterAction for Health and Human Rights, Australia
75. Dr Aileen Kennedy, UTS Faculty of Law and InterAction for Health and Human Rights, Australia
76. Inês Espinhaço Gomes, Porto Faculty of Law, Universidade Católica Portuguesa, Portugal
77. Dr. Daniel Del Gobbo, Assistant Professor & Chair in Law, Gender, and Sexual Justice, University of Windsor Faculty of Law, Canada
78. Brendan Schwab, Professional Footballers Australia, Australia
79. Dr. Erin C. Tarver, Emory University, Oxford College, USA
80. Dr. Matteo Winkler, HEC Paris, France
81. Isabel Abella Ruiz de Mendoza, Abella Legal, Spain
82. Roland Sètondji Adjovi, UQAM, Canada
83. Prof. Dr. Peter W. Heermann, LL.M, University of Bayreuth, Germany
84. Andrei Kampff de Melo, Lei em Campo, Brazil
85. Megan L. Manion, Yale Law School, USA
86. Dr Andrea Cattaneo, Edge Hill University, United Kingdom
87. Prof. Alessandra Arcuri, Erasmus School of Law, Erasmus University Rotterdam, The Netherlands
88. Gabriel Vieira Terenzi, Centro Universitário Toledo Wyden, Brazil
89. Heather Corkhill, Legal Director, Equality Australia, Australia
90. Carlos J. Zelada, Universidad del Pacífico, Peru
91. Louise Collard, Université du Québec à Trois-Rivières, Canada
92. Prof. Sarah Joseph, Griffith University, Australia
93. Sven Demeulemeester, Partner, Atfield, Belgium
94. Andrea Florence, Lawyer, Executive Director, Sport & Rights Alliance, Brazil
95. Surbhi Kuwelker, Independent Legal Counsel, Doctoral Candidate, University of Neuchatel, Denmark
96. Prof. Pascal Borry, KU Leuven, Belgium
97. Clément Lanier, Paris-Nanterre University, France
98. Prof. Machteld Vonk, Faculty of Law, Radboud University, The Netherlands
99. Shoichi Sugiyama, Field-R Law Office / Japan Safe Sport Project, Japan