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'Gender verification' in sports
For about 100 years of sport history, men and women have been competing separately in most athletic events. The separation of the sexes is understood as a fundamental issue of competitive justice as genetic dispositions accord a physical advantage to the male athlete. In female competition, 'gender verification' i by genetic testing to detect fraudulent males is a common practice. South African runner Caster Semenya, the winner of the 800 m final at the World's Athletic Championship in Berlin 2009, was subjected to such a testing, as her female sex had been questioned on the basis of her physical appearance. 1
To protect individual privacy, dignity and self-determination, genetic tests in a medical setting and at the workplace are regulated by laws and international declarations. The Unesco Declaration on Human Genetic Data demands free, informed and express individual consent to the 'collection of human genetic data' (Article 8a). 2 Data must not be used in a way 'that is intended to infringe, or has the effect of infringing human rights, fundamental freedoms or human dignity of an individual or for purposes that lead to the stigmatisation of an individual' (Article 7a). 2 An expert group of the European Commission recommended that in the context of genetic testing 'the importance of a patient's right to know or not to know be recognised'. 3 Many Western countries have passed similar genetic privacy laws. 4 5
Would it be appropriate to subject genetic testing in sports competition to the same precautionary principles? Would it be necessary to respect the genetic privacy rights of athletes? After all, it cannot be considered discrimination to exclude someone from competition due to the wrong sex as the division by sex is a fundamental prerequisite of fairness. Close physical inspection to determine the sex of a competitor is considered humiliating by the majority of athletes. Why not use medical genetics to unobtrusively and objectively solve the problem and prevent cheating?
In this paper, I argue that genetic testing in women's sports competition does not make an exception to the rule. I will show that the current practice of athletic associations to largely ignore the right of suspected competitors not to know does not comply with prevailing ethical and legal...