The case of Imane Khelif, the Algerian boxer who is the subject of heated controversy at the Paris 2024 Olympics because as a ‘trans’ woman she cannot fight a woman should, yes, make a scandal, but not for the reasons that many are arguing by Andrea Monti – Initially published in Italian by Italian Tech – La Repubblica.
Imane Khelif’s case should be a scandal because, in the name of ‘fair play’, a woman —because Khelif is a woman— is forced to undergo medical treatment to ‘get back to normal’ and not ‘kill the competition’.
Khelif, in fact, is hyperandrogynous, i.e. able to produce more testosterone than the female body can normally do. This has an effect on physical morphology and athletic ability that allows ‘off-the-charts’ performance, but in any case entirely natural because it is the result of a condition not altered by exogenous substances.
We are not talking about doping because it should be remembered, in fact, that the rules on sports doping punish the taking of substances or the use of methods that alter sports performance, but nowhere do they provide for the opposite, i.e. that an athlete who is too strong should be penalised because, precisely, he or she generates a ‘disturbance in strength’.
In other words, the world of sport makes this reasoning: if nature gives you an exceptional genetic trait, this is not good because if you are too strong, you always win, and so you alter the ‘level playing field’ but — it springs to mind in more pragmatic terms — you also devalue the spectacularity of the competition, that is, its economic and advertising value.
So, it is as if a basketball player who is too tall to be ‘stopped’ were asked to saw off his legs, or a sprinter who is too fast to run with ballasts, or, as in the case of Caster Semenya in 2009 and Dutee Chand in 2014 (South African and Indian respectively), to accept a reverse doping in order to reduce their performance precisely because they are hyperandrogynous.
Caster Semenya’s case deserves special attention because instead of being subjected to the diktats of the world athletics federation, the sprinter decided to contest them, arriving, but at the end of her career, as far as the European Court of Human Rights, which, with a ruling issued only in 2023, thus after thirteen years of legal battles, decided not to decide, missing the opportunity to issue a historic verdict for the right to personal identity and gender.
First of all, the court, as the English would say, mixed orange and apples.
Semenya’s case did not concern transgender athletes, whose participation in competitions with athletes belonging to the ‘target’ sex poses different problems than those under discussion. This altered the basis of the decision, which should, instead, have been exclusively about one point: is it permissible that, in the name of ‘normality’, a human being should be forced -constrained- to take drugs that alter their physiological ‘functioning’ in order to compete in a sporting event? Or, if one wants to pose the question from the perspective of a sports federation, is it permissible for a sports federation to force an athlete to perform interventions on his own body that not even a (democratic) state system would have the power to do?
In the (Italian) legal system, chemical castration (because that is what it is) as a penalty for committing sexual offences has never gone beyond the level of a political stance. And what would we say if Parliament were to pass a law stating that those who are too intelligent must be chemically made stupid?
The answers to these questions are obvious enough, but in the world of sport, pharmacologically intervening on the body and mind of athletes is an accepted practice, indeed an accepted rule.
To understand the violence of this position, one only has to read what the Swiss Supreme Court and the Court of Arbitration for Sport wrote in the documents brought to the attention of the European Court of Human Rights: ‘CAS and the Federal Supreme Court had concluded that her characteristics were “not sufficiently female” for the purposes of the sports classification’ and that undergoing ‘depotentiating’ hormone therapy has side effects that, by their very nature ‘were no different from those experienced by the thousands, if not millions of other women with XX chromosomes who took oral contraceptives’ (and therefore ‘normal’? , n.d.a.)
Who does not cringe at these words?
Be that as it may, the elephantine judgment of the European Court (58,365 words, almost a book) has given birth to a mouse: the procedural rules of sporting justice do not guarantee an effective procedural possibility to defend oneself (paragraph 200) and therefore there is no need to examine the most important question, that of the admissibility of a sporting rule that forces one, on pain of exclusion, to suffer a violation of one’s psychophysical integrity (paragraph 203).
In other words, with a masterpiece of balancing act: the Court decided not to decide whether sporting rules imposing compulsory medical treatment as a condition for competing are correct or not because it is a matter for ‘ordinary’ justice, which, however, did not guarantee an effective right of defence.
Moreover, paragraphs 215 and 216 of the judgment state that it is not humiliating enough to merit legal protection to give up one’s career in order not to undergo ‘treatment’.
The human story of Kehlif and, before her, of Chand, Semenya and the female athletes who are in a condition, according to sporting rules, of ‘non-normality’ is obviously very complex and concerns the crucial issue of the relationship between biological, personal and legal identity. A topic that certainly does not end with the issues of sporting rules, but which, once again, forces us to reflect on the extent to which anyone’s body, regardless of gender and identity, can still be considered an inviolable barrier by states and, all the more so, by private bodies whose primary purpose is profit.
