By Jessica Mackinnon, Communications Manager, and Aditi Iyenger, Communications and Advocacy Officer, Sexual and Reproductive Health Matters

On 6 May 2024, SRHM, in collaboration with Global Health Justice Partnership (GHJP) of Yale Law and Public Health Schools, conducted a webinar on the topic ‘What do oral contraceptives have to do with human rights abuses in sports?’

This webinar comes at a crucial time, days before the Grand Chamber of the European Court of Human Rights is scheduled to hear double Olympic champion runner Caster Semenya’s complaint on May 15, 2024, against regulations introduced by World Athletics in 2018, requiring certain female athletes to suppress their natural testosterone levels, often by taking oral contraceptive pills. Semenya alleges that Switzerland breached its human rights obligations by affirming a Court of Arbitration of Sport decision that allows these sex-testing regulations to persist.

During this rich one-hour discussion, which was moderated by Professor Alice M. Miller, J.D. (co-director of the GHJP of Yale Law and Public Health Schools), the authors of a recently published SRHM paper (What do oral contraceptives have to do with human rights abuses in sport?), Katrina Karkazis, PhD, MPH (Professor, Sexuality, Women’s and Gender Studies at Amherst College) and Michele Krech, J.S.D. (Bigelow Fellow and Lecturer in Law at University of Chicago Law School) discussed in detail how the Court of Arbitration of Sport relied on mistaken assumptions about oral contraceptives, and misused scientific evidence to uphold a coercive and medically unnecessary use of oral contraceptive pills.

The paper we’re using here as a jumping off point today came about in light of the the range of fairness and justice concerns that sex testing regulations bring up. Katrina has been particularly interested in the concerns related to the use and misuse of science and I have been particularly interested in the concerns related to the disregard for human rights law. And we came to realise that these phenomena are happening in tandem. That the way the courts and the public speak about the science of sex testing, have, in many ways, obscured from view considerations of human rights as as well as medical ethics.
Michele Krech

Michele Krech also drew attention to how faulty assumptions about the science of oral contraceptive pills was used to deem these regulations reasonable and proportionate.

So let me put it this way: if the effectiveness of the oral contraceptive pills as a means of complying with sex testing regulations is in doubt, and it is, then the regulations cannot be said to be reasonable. And likewise, if the harms of oral contraceptive pills when used for this particular purpose are not properly accounted for, and they have not been, then the regulations cannot be said to be proportionate.

Sex testing regulations not only violate human rights, but also put medical practitioners in a compromised situation, where they are likely to breach their ethical obligations by complying with these regulations.

It is not tenable to simply rely on physicians to implement World Athletics regulations, because doing so will often be in contradiction with their ethical obligations towards patients.
Michele Krech

Michele Krech emphasized that reliance on these generated facts about the effectiveness and harmlessness of oral contraceptive pills has distracted from the  central harm that’s associated with these regulations: that it is a coerced medical, but not medically beneficial, bodily intervention.

The two mistaken assumptions, as discussed in the paper and webinar are:

1. Oral contraceptive pills are an effective and exclusive method of regulatory compliance
2. Oral contraceptive pills are not harmful because many women use them for contraception

Katrina Karkazis discusses these assumptions in detail in the webinar and explains how they came to be accepted. She emphasizes:

Even if using oral contraceptive pills to comply with the regulations carry the exact same health risks that one might have when using them for contraception, there is absolutely no health benefit against which to balance these risks when using them for regulatory compliance. Oral contraceptive pills are not benign, no matter how many millions of women use them. But their use may be considered beneficial to a patient and to a physician in light of the desired health benefit or goal. But choice is foundational to these decisions and the weighing of these risks and benefits. When the goal is simply an only regulatory compliance as it is for these women. There is no free choice, no medical benefit, there are only harms, and foremost among these is the coerced manipulation of one’s body, which is a significant harm in and of itself.

Part of what enables this kind of end run around ethics and human rights is the widespread notion among many, not simply the courts themselves, but a broader cultural notion among journalists among otherwise sort of reasonable people, that oral contraceptives themselves are no big deal, and that they’re a key to women’s freedom, emancipation, choice, and other things.

Our claim here is not, to be very specific, that oral contraceptives are bad. Our claim is the way that (Courts are) instrumentalizing that broader cultural view, towards a very particular end, is designed to violate rights. And it’s that movement, that, frankly, too many people have missed… One of our hopes is that a broader group of people understand the manipulation of certain facts and arguments towards the harm of other women.
Katrina Karkazis

The webinar also features two important recordings. The first one features Dr. Otmar Kloiber, the Secretary General of the World Medical Association who discusses his stance and concerns on these coercive regulations brought about by World Athletics.

Our Declaration on Principles of Healthcare in Sports Medicine, which was adopted over 40 years ago, contains an explicit statement and I quote, “The sports medicine physician should be aware that methods drugs or intervention, which artificially modify blood constituents, biochemistry, genome sequence, Gene expressing, or hormone levels, and do not benefit patients violate the basic principles of the WMA Declaration of Geneva which states “the health and well being of my patient will be my first consideration”.”
Dr. Otmar Kloiber

In the second recording, Dr. Payoshini Mitra, an athlete rights defender who actively campaigns for the abolition of sex testing practices in female sports talks to Ugandan former running champion Annet Negesa, who was coerced to undergo an invasive procedure mandated by the World Athletics to lower her testosterone levels.

I really I didn’t have enough information about it. And they squeezed me, like they gave me no option. Because I like sports, other kinds of sports. It is something which really I love so much. So it was something which gives me pleasure. And makes me happy. And, like, as I say, they gave me no option. So they pushed me.
Annet Negesa

This paper by Katrina and Michelle, it talks about the contraceptive pill, which is often looked at, not as severe, obviously, as doing life changing surgery. But there are harmful effects of any form of hormone therapy, which your body doesn’t really need. But you’re doing it just because you want to compete in sport.
Dr. Payoshni Mitra

Alice Miller summarizes the impossible position that female athletes are often put in.

You are between a rock and a hard place as an athlete who is trying to protect your rights or challenge the practice of the World Athletics in regulating sport, which is to say, you can go to your country and have your rights protected, they can use their constitution and international human rights treaty rights and protect you and now you can’t compete.
Alice Miller

You can now watch the entire recording of this webinar here at the link below, and hear directly from these experts, as we approach the date of Caster Semenya’s case hearing.

Through this webinar, we hope to raise more awareness and dialogue, and encourage reproductive health advocates across the globe to share and discuss this issue, to ensure that all athletes can practice bodily autonomy, and have their human rights protected without submitting to coercive medical treatments based on faulty assumptions.