During a periodic training on the university’s harassment policies today, I learned that my institution has added “genetic information” to the list of characteristics against which one cannot be discriminated. When one of my colleagues asked, “Do you have an example of that,” the presenter stumbled. After a few beats she said if someone had a gene for a disease but did not have any symptoms of that yet or an evident physical disability.
The policy change likely follows from the federal Genetic Information Nondiscrimination Act that protects some medical information. Genetic information cannot be used to make insurance and employment decisions. But the law is limited and has been criticized as being unenforceable.
I then raised the question, “So, if a female athlete is found to have XY chromosomes, then we could not discriminate by saying she could not play on the women’s team?” In some cases, this is androgen insensitivity syndrome, when a phenotypically female is genetically male but because her cells do not react to testosterone (and since the embryological default is female), she never developed masculine biology. The presenter said that was a great example. So it’s about more than just information from a genetic test, it’s about genes in our bodies.
Our new university policy may be progressive, but it may force us to grapple with external bodies that have very different perspectives. For example, the International Olympic Committee has the right to gender test a person if there is suspicion. In 2012, the IOC changed a previous policy that defined female as having two X chromosomes. In their new policy, being female means having androgen levels below a threshold. But, if the person has high levels of androgen and lacks sensitivity, then the androgen provides no competitive advantage and she may be able to compete as a female.
The IOC and the International Association of Athletics Federations limits “female” as less than 10 nanomoles of testosterone per liter (nmol/L). Normal for a women is 0.52-2.4 nmol/L and normal for a male is 10-30 nmol/L. However, male levels can be as low as 6.9 and some women have hyperandrogenism (as much as 5% of female athletes) with levels of 8.4 nmol/L. So there is some overlap on the extremes of the bell curve.
In another example, in the highly competitive world of Crossfit, a woman with androgen insensitivity syndrome (XY chromosome) was told that she could not compete as a female. The woman is currently suing the company.
The NCAA has a policy on transgender athletes. A trans male (female-to-male) who receives testosterone treatment may not compete on an all-women’s team. A trans female (male-to-female) can compete on a men’s or mixed team, but can only play on an all-female team after one year of “testosterone suppression treatment.” If there is no hormone therapy, then a trans male can play on either team but a trans female cannot play on a women’s team. This seems to be the closest they come to a policy on defining “female” for purposes of competition.
Therefore, it’s possible, that a student-athlete might be genotypically male, but phenotypically female. Under international rules, it’s possible that the student would not be permitted to compete as a female unless she was on suppression treatment. But a genetic nondiscrimination policy at a university could view that as discrimination. Such a policy might force an institution to allow anyone to play on any team irrespective of it being a men’s or women’s team. Thus the local and international policies are potentially in conflict.
Does “female” mean XX, a personal or social identification, or is it below 10nmol/L? The reason given for separating men and women in sports is supposedly fairness—in men, greater testosterone causes more muscle mass, and men tend to be taller, thus giving them an advantage in some sports. With continuing advances in genetic testing and our understanding of human development, questions once perceived as simple—male and female—are turning out be to be very complicated. This new knowledge creates opportunities for discussion, for possibly expanding policies and regulations. Genetics is redefining our very notion of self and exploding previous categories. As our rules, policies, and laws struggle to catch up, the future holds some interesting debates.
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