Policing ‘sport sex’: Examining the legal challenge filed against World Athletics’ 2018 Differences of Sexual Development regulations

Abstract

Policies that regulate entry into women's sports competitions continue to be enforced even as they have been critiqued as discriminatory and unfair, and subjected to legal challenges. To better understand the persistence of these highly contested policies and the continued exercise of normalising disciplinary power over female athletes with hyperandrogenism, this paper analyses the Court of Arbitration for Sport's arbitral award in South African athlete Caster Semenya's challenge in Court of Arbitration for Sport against the 2018 Differences of Sexual Development Regulations for the Female Classification in the Court of Arbitration for Sport. Drawing on a Foucauldian conception of power as productive of knowledges and subjectivities, the following analysis examines the close imbrication of techniques of disciplinary power and legal mechanisms to critique the Court of Arbitration for Sport's acceptance of World Athletics' evidence in support of the Differences of Sexual Development Regulations and its ruling to uphold these Regulations. Legal arguments that such eligibility regulations are discriminatory, unfair and disproportionate to their stated aims are articulated within the inherently constrained framework provided by the prevailing juridical mechanisms, where an independent definition of key terms – ‘discrimination’ and ‘fairness’ – cannot be developed. The Court of Arbitration for Sport's ruling also highlights the limitations of the arguments premised on human rights to secure the recognition of the rights of 46XY women with hyperandrogenism against discriminatory regulations. The paper argues for the need to analyse the power relations at play in the discursive construction of women with 46XY Differences of Sexual Development as problematic and threatening to challenge the exercise of normalising disciplinary power over their bodies.