Promoting and Protecting Human Rights in relation to Sexual Orientation, Gender Identity and Sex Characteristics A Manual for National Human Rights Institutions 326 327 328 329 330 In July 2015, the Court found that insufficient evidence had been produced to indicate any link between enhanced androgen levels and improved athletic performance. It suspended the hyperandrogenism regulation for female track and field sports for two years, enabling Chand and other intersex athletes to compete.326 The Court noted that “there is no single determinant of sex” and ruled it was inappropriate to subject athletes to sex verification, external genitalia examinations or chromosome testing. Any basis used to divide athletes into male and female categories “should be necessary, reasonable and proportionate to the legitimate objective being pursued”.327 In a brief consensus statement in November 2015, the IOC noted its intention to go back to the Court of Arbitration for Sport seeking to reinstate its hyperandrogenism rules.328 This decision has been criticised by intersex activists.329 NHRIs can play a role in investigating intersex people’s experiences in trying to participate in sport, whether socially or competitively. In August 2015, the Australian Human Rights Commission announced a national online survey on the participation of intersex people in sport to ensure their rights are protected in the policies and practices of sporting codes.330 4.5. RECOGNITION BEFORE THE LAW Recognition before the law means having legal personhood and the legal protections that flow from that. For intersex people, this is neither primarily nor solely about amending birth registrations or other official documents. Firstly, it is about intersex people who have been issued a male or a female birth certificate being able to enjoy the same legal rights as other men and women. When intersex people experience discrimination, they are not able to enjoy the same legal rights as others. Secondly, some intersex people seek to amend their sex or gender details on official documents because those details were either inaccurate at birth and/or no longer reflect their sex or gender identity. In some jurisdictions these details can be corrected, when an error was made at birth.331 This may be the most appropriate option for some intersex people. Typically, the other legal avenue is where legal gender recognition provisions apply to intersex people as well as to transgender people. Such provisions should recognise the specific experiences of intersex people and should not be framed solely around transgender people or the medical process of transitioning.332 Finally, it is important to clarify that recognition before the law for intersex people is not about creating a third, separate category for the registration of people born with an intersex trait.333 To do so would risk segregating and potentially stigmatising intersex people. It would also remove their right to determine their own sex or gender. 80 326 The court allowed two further years for convincing evidence to be submitted by the IAAF. The regulation will be automatically revoked if evidence has not been provided within that time period. 327 J. Branch, ‘Dutee Chand, female sprinter with high testosterone level, wins right to compete’ in The New York Times, 27 July 2015. 328 International Olympic Committee, IOC Consensus Meeting on Sex Reassignment and Hyperandrogenism November 2015; at www. olympic.org/Documents/Commissions_PDFfiles/Medical_commission/2015-11_ioc_consensus_meeting_on_sex_reassignment _and_hyperandrogenism-en.pdf. 329 M. Carpenter, ‘IOC policy: no change for athletes with intersex traits’, 2 February 2016; at https://oii.org.au/30303/ioc-nochange-athletes-intersex/. 330 Australian Human Rights Commission, ‘Survey on transgender, gender diverse and intersex rights in sport’, 20 August 2015; at www.humanrights.gov.au/news/media-releases/survey-transgender-gender-diverse-and-intersex-rights-sport. This survey also looks at the experiences of transgender and gender diverse people. 331 For example, Births, Deaths and Marriages Registration Act 1995 NSW (Australia), s. 45. 332 For example, Gender Recognition Act 2004 (United Kingdom), s. 2(1)(a) requires that an applicant “has or has had gender dysphoria”. This excludes many intersex people (and also many transgender people). 333 Unfortunately, this type of misunderstanding is common in both gender recognition advocacy campaigns and media reports.