Policing the Policing of Intersex Bodies: Softening the Lines in Title IX Athletic Programs

Great athletes are both born and made. Perhaps it is unsurprising, then, that organized sports have historically aspired to regulate both the nature and nurture of its participants. The underlying principle of athletic competition is fair play - consistent with the sporting world’s widespread condemnation of performance-enhancing drugs. But fair play is not synonymous with egalitarianism; nor could it be, given that inborn physical advantages are simply not doled out impartially. After eighteen-year-old runner Caster Semenya broke a South African record at the African Junior Championships in July 2009, a firestorm erupted over the fairness of her innate athletic talent. At that event, the South African teen also clocked the fastest female time of the year for the 800-meter race, improving her personal record by seven and a half seconds. This impressive victory, which qualified Semenya for the Berlin World Championships, coupled with her “masculine” appearance, fueled speculation that she was actually a man. In essence, her natural body was unnatural. As the Berlin World Championships drew closer, the whispers only got louder. On the day of the 800-meter final, just hours before the race, news broke in Berlin that the International Association of Athletics Federation had asked Semenya to undergo a sex test to prove that she did not have an unfair advantage. Despite this humiliating prelude, Semenya won the gold medal, capturing the 800-meter world title.The gender controversy reached a fever pitch after Semenya’s Berlin victory. Semenya was never formally suspended, but she agreed to wait for the IAAF’s decision on her eligibility before returning to competition. In the meantime, the public divided over her right to compete as a female and her entitlement to the world title. In July 2010, after eleven months of deliberation, the IAAF finally cleared Semenya to compete.The malestrom over Caster Semenya reveals our oversimplified understanding of sex but leaves complex questions unanswered. On one hand, Semenya’s story debunks the notion that sex is clear-cut; it is culture - not nature - that insists that human beings fit into one of two discrete sex categories. Still unresolved, however, is how and where to place intersex bodies within this male-female binary - and, more narrowly, in sports. Like other social institutions, sports are constructed on a dimorphic understanding of sex. But athletes like Caster Semenya force us to acknowledge that physical bodies can - and do - defy such neat classification. Indeed, approximately 1.7% of the world population is born intersex, neither fully male nor female.In the wake of Semenya’s ordeal, it is unclear how the American legal system will grapple with intersex in school athletic programs covered by Title IX, the landmark legislation that prohibits sex discrimination in school sports. Should an intersex student athlete be allowed to compete as a male or a female? What criteria should be used to decide where an intersex athlete falls in the binary scheme? This note explores these difficult issues. Its goals are modest. It does not attempt to resolve the inherent shortcomings of binary sex. Nor does it offer a method to ensure that student athletes are accurately grouped into discrete sex categories. To the contrary, this note challenges the legitimacy and fairness of binary categorization in the first place. It illustrates the cultural overlay to both the sex-based differences often regarded as biologically predetermined and the social understanding of sex as dyadic. Against this backdrop, this note argues that Title IX should be interpreted to cover discrimination based on binary-sex nonconformity. It advocates a self-identification policy on eligibility to compete as a male or female in Title IX athletics.