1. Establishing Regulatory Practices: Pursuing Globality and Monopoly

Since the foundation of World Athletics, the athletics program offered at the Olympic Games, and later at World Athletics’ own world championship competitions, has consistently included around twenty-four events for men. By contrast, World Athletics initially approved only five women's events to be included, on trial basis, in the 1928 Olympic program.Footnote ⁷⁵ This was less than half the number of events already staged at the short-lived Women's Olympics in the 1920s and 1930s.Footnote ⁷⁶ By 1980, the number of women's track and field events at the Olympics had grown to fourteen, with the Council requiring proof that each additional event was suitable for women—that is, evidence to rebut assumptions that women's participation in certain events, particularly long distance races, would lead to permanent injury, adverse health effects, impaired reproductive capacity, or aesthetic “masculinization.”Footnote ⁷⁷ Accordingly, World Athletics’ Women's Committee—the only organ led by, and focused on, women in the sport—regularly solicited and presented evidence to the Council and the Congress showing that women were in fact running longer distances, in faster times, without physically harming themselves.Footnote ⁷⁸

This constrained and incremental approach was partly a result of World Athletics’ commitment to globality—to ensuring some degree of consistency in the practice of athletics across countries, as well as to unity between national athletics federations. For instance, World Athletics regularly rejected proposals to add more women's events based on international discrepancies in their popularity or in views about their appropriateness for women.Footnote ⁷⁹ This remained true even as a long distance “running boom” emerged in the United States and several other countries in the 1970s.Footnote ⁸⁰ In response to urgent requests to add a women's marathon event to the 1980 Olympics from Kathrine SwitzerFootnote ⁸¹—best known as the first woman to enter the Boston Marathon in 1967—and Nacy Gori—the director of a track club claiming to be “representative of American and World Involvement in Women's Long Distance and Marathon Running”Footnote ⁸² —World Athletics responded that it was “not yet time” because no national federation had proposed to add the event and not enough countries had women marathon runners.Footnote ⁸³

As the U.S. member of World Athletics’ Cross Country Committee, Aldo Scandurra, explained to a journalist, in 1977, there was “inertia in the system due to the structure of [World Athletics] in which many countries are represented,” only some of which saw a need to add the women's marathon to the Olympic program.Footnote ⁸⁴ Scandurra advised World Athletics to “look ahead and consider that road racing will probably equal in scope Track and Field in participation in the next decade” and to therefore “assume the road racing responsibilities.”Footnote ⁸⁵ In other words, failing to get ahead of the increasing popularity of long distance running would put World Athletics’ global authority over long distance running events at risk.

The following year, Patricia Rico, a member of the Women's Committees of both World Athletics and the U.S. federation, expressed the attendant risk to monopoly. She reasoned that neither World Athletics nor the International Olympic Committee (IOC)Footnote ⁸⁶ would exist if the “founding fathers or those groups waited for all countries or regions of the world to develop sports, particularly athletes.”Footnote ⁸⁷ She then cautioned that if World Athletics were to “sit back and then ignore” the boom in women's long distance running, “another organization” would step in first.Footnote ⁸⁸

World Athletics’ initial response to these threats to its globality and monopoly was to establish its own World Championships, separate from the Olympic Games, featuring a 3000-meter race for women.Footnote ⁸⁹ However, the continued exclusion of longer women's races, namely the 5,000-meter, 10,000-meter, and marathon, from international competitionsFootnote ⁹⁰ invited condemnation from proponents of women's long distance running in the United States. They called World Athletics’ decision an “injustice and discrimination,”Footnote ⁹¹ an affront to “human rights,”Footnote ⁹² a manifestation of “sexism . . . insulting to the personhood of women,”Footnote ⁹³ a denial of “equal opportunity,”Footnote ⁹⁴ and a denial of “the right to compete in the compete in the Olympics because of sex.”Footnote ⁹⁵

World Athletics did not directly respond to these accusations from outside its ranks. Instead, the organization directed its attention to the threat of other organizations developing women's long distance running outside of its control. For instance, in 1979, World Athletics warned the International Running Committee (IRC)—newly established to help improve the administration of running and to increase competitive opportunities worldwide—not to interfere in its “governing role.”Footnote ⁹⁶ Further, certain members of World Athletics’ Women's Committee sounded the alarm about other “outside organisations taking over” the administration of long distance events, such that “the credibility of [World Athletics] was at stake.”Footnote ⁹⁷ They expressed concern that World Athletics was “in danger of losing control” of long distance running.”Footnote ⁹⁸ The Council seemingly agreed and sent a “very strong request” to the IOC to add the women's marathon to the 1984 Olympic program.Footnote ⁹⁹ In the meantime, the Congress approved the addition of the women's marathon to the program of World Athletics’ first official World Championships in 1983,Footnote ¹⁰⁰ after which the IOC agreed to follow suit.Footnote ¹⁰¹ World Athletics’ leadership refused, however, to do the same for the women's 5,000-meter and 10,000-meter races, on the basis that change to the competition program should be gradual and supported by statistics collected from the national federations. The president thus proposed “a little slower progress” going forward.Footnote ¹⁰²

This slow approach was promptly threatened by another U.S.-based rival organization, the Association of Road Race Athletes (ARRA), which had begun organizing professional road races. The World Athletics Council considered this an attempt “to ‘contaminate’ all the athletes around the world” by allowing professionals to compete and offering prize money in order to “prove” that World Athletics’ amateurism rules “were un-enforceable and the Governing Body could not control the sport.”Footnote ¹⁰³ The Council member from the United States was particularly concerned that “Law Courts would be used to aggravate and confuse the situation” and so he was adamant that all road races be sanctioned by World Athletics.Footnote ¹⁰⁴ Further, the President promoted the addition of more long distance races to World Athletics’ competition program as a way to “increase the importance” of the organization by leaving “less calendar space to the private Meeting Organisers . . . thus returning control to the Member Federations.”Footnote ¹⁰⁵

Around the same time, yet another organization, the Association of International Marathons and Distance Races (AIMS) —established in 1982 to standardize and promote marathon races—prompted similar concerns about the monopoly power of World Athletics. Members of the Women's Committee expressed “serious reservations” about the AIMS’ “militant” tendencies and lack of cooperation with World Athletics, such that “great care must be taken to ensure that [World Athletics] did not lose control.”Footnote ¹⁰⁶ The Women's Committee saw the addition of the women's 5,000-meter and 10,000-meter races to the Olympic program as a way to strengthen World Athletics’ position,Footnote ¹⁰⁷ but made a more modest proposal, to which the Council and the Congress would agree: to monitor development and generally support bringing road racing events “under the jurisdiction” of World Athletics.Footnote ¹⁰⁸ However, this restrained approach proved unsatisfactory to the world's top female long-distance runners, and World Athletics’ fear of judicial interference materialized.

2. Defending Regulatory Practices Against Legal Challenge: Pursuing Autonomy

The first ever lawsuit against World Athletics based on the norm of gender equality was filed in 1983. However, this case was several years in the making. In 1980, the American Civil Liberties Union (ACLU) was prepared to take legal action against the IOC for its discrimination against women across all sports, when Jacqueline Hansen, co-president of the above-mentioned IRC and former world record holder in the marathon, offered her support. Although the ACLU withdrew its threat of legal action when several new women's events, including the marathon, were added to the Olympic program, it offered to work with the IRC on the 5,000-meter and 10,000-meter races, if the IRC first exhausted the proper internal channels and produced evidence meeting the IOC's requirement that events be “widely practiced” in fifteen countries and two continents.Footnote ¹⁰⁹ Accordingly, the IRC gathered eighty elite 5,000-meter and 10,000-meter runners from twenty-seven countries, along with evidence of the failed proposals within World Athletics to add those events to the Olympic Games.

With this evidence in hand, the ACLU advised World Athletics, in August 1983, that “there can be no explanation for the exclusion of these events except discrimination based upon sex” and that such discrimination was prohibited by U.S. law: “Sexual discrimination may be a matter of course in international sports competition when held in other nations, but it is prohibited by law in the state of California and the United States,” where the 1984 Olympics were about to be held.Footnote ¹¹⁰ The ACLU warned that if the World Athletics Council did not take remedial action at its next meeting, a lawsuit would be filed against the organization for sex-based discrimination.Footnote ¹¹¹ While the Council decided to add a women's 10,000-metre race to its world championship program going forwardFootnote ¹¹² and the IOC agreed to include all events on that program in the 1988 Olympics,Footnote ¹¹³ the program of the 1984 Olympics was left unchanged. True to its word, the ACLU—on behalf of a large group of women distance runners from around the world,Footnote ¹¹⁴ as well as the IRC and the Road Runners Club of America—filed a lawsuit against World Athletics, the IOC, and a range of U.S.-based actors involved in staging the 1984 Olympics Games in Los Angeles.Footnote ¹¹⁵ The plaintiffs alleged that, by failing to include the 5,000-meter and 10,000-metre races for women, the defendants had engaged in gender-based discrimination, in violation of state, federal, and international law.Footnote ¹¹⁶

World Athletics immediately sought to avoid anything that would undermine respect for the organization's autonomy going forward. In particular, nearly all members of the Council opposed a settlement in which the two events at issue would receive “serious and fair consideration through established procedures for inclusion in the 1988 Games.”Footnote ¹¹⁷ They feared that “to accede to the legal actions of a minority group [would] set a dangerous precedent” that the organization's constitutional rules and procedures for the acceptance of new events could be ignored.Footnote ¹¹⁸ Although one Council member pointed out that the settlement did not require World Athletics to do anything more than it was already planning to do, his colleagues supported the principled position of rejecting the compromise because it was “forbidden” by the organization's Constitution.Footnote ¹¹⁹

World Athletics also submitted a declaration to defend against a preliminary injunction, which would require the addition of the women's races to the 1984 Olympic Games. In this declaration, World Athletics emphasized that it was “recognized to be the only appropriate body” to propose track and field events to the IOC and that there was a constitutionalized process for initiating such proposals, whereby any requests by athletes must go through their national federations,Footnote ¹²⁰ rather than through a judicial process. The IOC supported this view, asserting that it would be “highly inappropriate for a court to substitute its order for those procedures,” which are designed by “those entities that are in the best position to do so from a technical and organizational view.”Footnote ¹²¹

World Athletics also emphasized that “incalculable” harm would result from not following its controlled process. In particular, because athletes around the world would not have sufficient time to train for the new events demanded by the plaintiffs, the quality of the competition would be “much devalued” and the evolution of the events worldwide could be “adversely affected.”Footnote ¹²² The IOC agreed, explaining that it did not take event requests from individuals as this would result in “a deluge of requests which could not in any way be controlled or adequately reviewed by the IOC,” nor did it takes requests from governments as this “would undermine the independence of the IOC and seriously jeopardize the aims of the Olympic Charter.”Footnote ¹²³ According to World Athletics, a court order forcing the staging of the women's events would be “damaging to the long-term future of international athletics and the spirit of co-operation between the bodies which govern world athletics and their constituent members which have existed to date.”Footnote ¹²⁴

The ACLU lawyers publicly characterized these “integrity of process” arguments as “spurious because the process is whatever the IOC wants it to be.”Footnote ¹²⁵ And in their submissions, the plaintiffs characterized the official process detailed by World Athletics as “obstructionist,” noting that many men's events were added not through the purportedly official process, but through an “unofficial ‘old boy,’ ‘noblesse oblige,’ ‘who do you know’ system associated with economic interests.”Footnote ¹²⁶ The plaintiffs submitted that when it came to women's events, World Athletics adopted “a ‘policy’ of sl-o-o-o-o-w-l-y adding no more than one or two events in athletics competition for women per Olympiad,” ignoring the fact that event popularity resulted from event recognition, more than the reverse.Footnote ¹²⁷

World Athletics countered these accusations by contextualizing its history of obstructing the addition of women's events as part of an effort to actually advance gender equality. First, it explained that it had “over the years discriminated strongly in favor of women to prevent unfair competition with men and to take account of the obvious physiological differences between the sexes,” by establishing lower entry standards, lighter throwing implements, lower hurdles heights, shorter race distances, and “femininity testing.”Footnote ¹²⁸ Second, World Athletics submitted a list of its incremental activities leading to the recognition of certain middle and long distance races for women since 1970.Footnote ¹²⁹ On the whole, the plaintiffs described World Athletics’ declaration as “sexist,” “unbelievably patronizing,” and reflective of a “paleolithic consciousness with respect to women[’]s rights.”Footnote ¹³⁰

Just a few months before the opening of the 1984 Olympic Games, the U.S. District Court for the Central District of California denied the plaintiffs’ request for an injunction. The court acknowledged the “male-oriented approach taken in the Olympics [from] its modern-day inception and for many years,” as well as the “great frustration for a woman athlete with the talent and determination to be the best and who, had she been a man, could compete in one or both of these events.”Footnote ¹³¹ However, the court concluded that that none of the plaintiffs’ claims had a fair chance of success on the merits. With respect to the federal constitutional claims, under the equal protection guarantees of the Fifth and Fourteenth Amendments, the court concluded that the Olympic event selection rules were “gender-neutral” on their face and could not be traced to an “invidiously discriminatory purpose.”Footnote ¹³² In this regard, the court noted that women's events had in fact been added to the Olympics pursuant to the decision-making procedures that were being challenged and that there was “little evidence showing that the gains which women have made were deliberately delayed for discriminatory reasons.”Footnote ¹³³

With respect to the plaintiffs’ claim under the equal protection clause of the Constitution of California, the court held that the IOC's “gender-neutral” rules for adding new events did not target a suspect classification or affect a fundamental human right.Footnote ¹³⁴ Accordingly, the rules’ rational connection to the legitimate purpose of organizing the Olympic Games in an orderly manner was sufficient to preclude a fair chance of success on the merits of this claim.Footnote ¹³⁵ Similarly, with respect to the plaintiff's claim under California's Unruh Civil Rights Act, the court held that the event selection rules did not discriminate arbitrarily, but rather were “rationally related to the orderly administration and presentation of the Games.”Footnote ¹³⁶ For the same reasons, the court concluded that the plaintiffs had not demonstrated a fair chance of success on the merits of their claim based on “the international customary norm against gender-based discrimination.”Footnote ¹³⁷

The plaintiffs appealed to the U.S. Court of Appeals for the Ninth Circuit, which affirmed the District Court's decision in a 2–1 decision.Footnote ¹³⁸ The appeals court only reviewed the lower court's assessment of the claims under the U.S. Constitution and California's Unruh Civil Rights Act, finding that the other claims were not properly raised on appeal. With respect to the federal constitutional claims, the majority emphasized that the “historical background of invidious discrimination” was relevant but “insufficient alone to create a presumption of purposeful discrimination.”Footnote ¹³⁹ The facially neutral rule did not therefore violate equal protection guarantees.Footnote ¹⁴⁰

With respect to the claims under the Unruh Act, the majority also expressed its “difficulty” with the theory advanced by the appellants, as they were “not seeking an opportunity to compete against men in the existing men's 5,000 meter and 10,000 meter races” and therefore were not seeking to remove a barrier to their use of existing privileges captured by the Unruh Act.Footnote ¹⁴¹ Instead, the appellants sought the “creation of new competitive opportunities for them . . . to remedy the allegedly unequal results that have obtained under . . . the facially neutral test” for adding new Olympic events.Footnote ¹⁴² The majority expressed “doubt” that the Unruh Act could be used “to compel the creation of separate but equal events for women,” particularly when the purpose of the Act was to eliminate the separate-but-equal approach.Footnote ¹⁴³ The sport governing bodies’ approach, best characterized as separate-and-unequal, thus escaped scrutiny.

The majority also found persuasive the argument that “a court should be wary of applying a state statute to alter the content of the Olympic Games [which] are organized and conducted under the terms of an international agreement—the Olympic Charter.”Footnote ¹⁴⁴ It was “extremely hesitant to undertake the application of one state's statute to alter an event that is staged with competitors from the entire world under the terms of that agreement.”Footnote ¹⁴⁵ The sport governing bodies thus avoided legal interference in their decision-making processes.

In dissent, Judge Harry Pregerson characterized the Olympic Games as a “quasi-public service” offered by a business enterprise, which he did not believe the California legislature intended to be free to discriminate openly against a class of participants on the basis of sex.Footnote ¹⁴⁶ The dissent also questioned the majority's view that the Unruh Act did not apply because the appellants were asking for the addition of women's races rather than inclusion in the men's races.Footnote ¹⁴⁷ In this regard, the dissent emphasized that the “defendants, not the women runners, created the system of separate events for men and women in the Olympics, and, therefore, should not now use that decision as a shield against legal action to end discrimination.”Footnote ¹⁴⁸ However, this was precisely what the sport governing bodies did; longstanding regulatory practices, which originated as a way to exclude women, were reframed as efforts to include them.

According to the dissent, “[b]ecause women started from a position of distinct disadvantage in the total number of Olympic events” arising from a history of “institutionalized, gender-based discrimination,” the facially neutral Olympic rule “affected women athletes disproportionately and contributed to continuing gender-based disparity in opportunities for Olympic competition.”Footnote ¹⁴⁹ The majority, however, accepted the sport governing bodies’ retelling of their histories and current procedures as gender neutral, if not discrimination in favor of women. The dissent warned that “[w]hen the Olympics move to other countries, some without America's commitment to human rights, the opportunity to tip the scales of justice in favor of equality may slip away.”Footnote ¹⁵⁰ However, this prediction was never directly tested. World Athletics would turn this encounter with law into an opportunity to further reframe its longstanding regulatory approach to the women's competition program as in furtherance of gender equality, avoiding any further litigation of the issue.

3. Rebranding Regulatory Practices: Gender Equality as “Parity”

The women runners’ request for a re-hearing was denied,Footnote ¹⁵¹ and the 1984 Olympics went ahead with twenty-four athletics events for men and seventeen athletics events—not including the 5,000-meter and 10,000-meter races—for women. No similar lawsuit was brought again, and World Athletics continued with its incremental approach, adding approximately one new women's event to the world championship program every four-year cycle between 1984 and 2008, before stalling for a few cycles at a twenty-three-event program for women. During this stall, the Women's Committee observed that it had “almost finished [its] grand project of equalizing the men's and women's athletics program.”Footnote ¹⁵² The German Chair of the Committee, Ilse Bechthold, then persuaded her national federation to formally propose the addition of “gender” to the list of prohibited grounds of discrimination in World Athletics’ relevant constitutional objective.Footnote ¹⁵³ The Congress agreed, in 2003, to this constitutional revision:

Never was this non-discrimination provision, whether before or after its amendment, referenced in relation to World Athletics’ competition program. However, it was revised at the exact moment when the men's and women's competition programs were considered virtually equal. In other words, the new constitutional commitment was adopted once there was purportedly little else for World Athletics to do to achieve it. It was not until the 2017 World Athletics Championships, however, that the organization first staged an equal number of events for women and men, describing it as the fulfillment of its “wish to ensure gender equality on the field of play.”Footnote ¹⁵⁵ The president then made repeated public statements describing this regulatory reform as gender “parity,”Footnote ¹⁵⁶ while emphasizing that World Athletics “has been one of the foremost advocates for women's sport for almost a century” and has “long championed equal access to competition.”Footnote ¹⁵⁷ Similarly, the president described his sport as a “pioneer,”Footnote ¹⁵⁸ which had “historically led the way in gender equality since the beginning of the professional sport era in the 1980s with an equal programme of events and prize money for both women and men.”Footnote ¹⁵⁹ He did not mention that organization's leadership had resisted more rapid change, requested by the Women's Committee and female athletes, every step of the way.

The direct legal challenge to World Athletics’ regulation of the competition program marked a turning point at which the organization explicitly acknowledged gender equality as a relevant norm, while simultaneously reframing its regulatory approach as in furtherance of that norm. The women runners’ invocation of the U.S. legal system did not diffuse a particular meaning of gender equality into World Athletics, but rather prompted the organization to develop its own interpretation of the norm, based on existing regulatory practices. By equating these practices with the norm of gender equality, World Athletics filtered certain meanings in, and other meanings out, in this process of transnational norm diffusion. A similar process can be seen with respect to the organization's regulation of its internal governance structure, to which we now turn.

1. Establishing Regulatory Practices: Pursuing Globality and Monopoly

About a decade after its founding, World Athletics amended its Constitution to expand its regulatory authority to cover women's track and field, in addition to men's.Footnote ¹⁶⁰ It did so to usurp the authority of the first international women's sport organization, the Fédération Sportive Féminine Internationale (FSFI), which had begun organizing the above-mentioned Women's Olympics in the 1920s.Footnote ¹⁶¹ The first president of World Athletics, Sigfrid Edström, put it this way: “If we do not take them in, we shall always have a fight with them, as they will have their own olympic games.”Footnote ¹⁶² In other words, Edström saw the FSFI as a threat to World Athletics’ globality and monopoly—its authority to alone govern all international track and field competitions. Edström therefore proceeded to intentionally “disqualify [the FSFI's] leaders”Footnote ¹⁶³ by creating a special committee within World Athletics to manage women's track and field instead.Footnote ¹⁶⁴ He invited the president of the FSFI, Alice Milliat, to join this committee, apparently to persuade her to stop organizing separate international competitions for women, which he feared could become “just as famous” as the mainstream Olympics, which featured mostly men's events.Footnote ¹⁶⁵ Once part of the committee, Milliat strongly resisted its plan to re-assign control of the women's sport to World Athletics, but Edström was determined to “fight her federation.”Footnote ¹⁶⁶ He did so through a series of “forceful methods”Footnote ¹⁶⁷ aimed at convincing the FSFI to “give up its work”Footnote ¹⁶⁸ so World Athletics could “take the women's sport in [its] own hands.”Footnote ¹⁶⁹ Finally, in 1936, Milliat, falling into ill health, resigned herself to the fact that World Athletics, “through its President and his close friends, would stop at nothing to destroy the FSFI.”Footnote ¹⁷⁰ The World Athletics Congress proceeded to vote, without any input from the FSFI, to assume exclusive control over women's track and field.Footnote ¹⁷¹ From there, the FSFI dissolved and World Athletics reinstated itself as the exclusive international organization governing track and field, still governed exclusively by men.Footnote ¹⁷²

A decade later, the establishment of a standing Women's Committee within World Athletics further served the organization's interests in expanding its authority. Adding certain women to this committee was a way to temper particular threats to unity between national federations, under World Athletics’ exclusive control. For instance, Great Britain still had a separate women's federation that was reluctant to give up governing control,Footnote ¹⁷³ despite World Athletics’ insistence that it would recognize only one (men's) federation in each country. And the Soviet Union, in the context of the Cold War, had a particular interest in controlling the Women's Committee in order to expand the program of women's events, in which its athletes excelled.Footnote ¹⁷⁴ It was no coincidence, then, that the first women to join the Women's Committee were from Great Britain, the Soviet Union, and Czechoslovakia.Footnote ¹⁷⁵ In 1954, Zoya Romanova simultaneously became the first woman to preside over the Women's Committee and the first Soviet to preside over any World Athletics organ.Footnote ¹⁷⁶ The organization's then British president and secretary saw this as a way to “maintain the non-political basis of a worldwide organisation such as ours,”Footnote ¹⁷⁷ more than as a way to advance any notion of gender equality. Indeed, a Soviet proposal that all positions on the Women's Committee should be held by women was refused on the basis that federations should be allowed to appoint a male representative if they so desired.Footnote ¹⁷⁸

This approach also reflected World Athletics’ strategy of having former athletes, with a sense of loyalty to the sport, control the organization. The president who ruled from 1946 to 1976 considered it a great strength of the organization that “almost every official right down the line was at one time an active athlete.”Footnote ¹⁷⁹ Of course, this worked to the detriment of women, given that their athletic endeavors were habitually suppressed or overlooked during this period. Regulatory obstruction of women's involvement in the sport functioned to justify regulatory obstruction of their involvement in leadership, and vice versa.

Women were thus confined to the Women's Committee for many decades. Early debates about the distribution of decision-making power in World Athletics were limited to how voting power was shared between national federations, nearly all of which designated only men as Congress delegates. Some argued that the Congress should be “a forum where all nations participated with the same rights,”Footnote ¹⁸⁰ while others rejoined that nations should earn greater voting power as they “developed athletically.”Footnote ¹⁸¹ While World Athletics expressed pride that its “World Government” included “men of utterly different race . . . religion . . . [and] political ideology,”Footnote ¹⁸² women were altogether excluded from this vision of unity. And in any case, this vision was largely illusory, as the president and his close colleagues on the Council continued to monopolize power internally.

This governance structure led to a protracted battle between the Council and the Women's Committee about both the scope of the latter's work and the participation of its members, and women more generally, in other organs of organization. Beginning in the late 1950s, the Women's Committee, under Romanova's leadership, sought to “extend [its] rights and strengthen [its] role” within World Athletics.Footnote ¹⁸³ It asked the Council to approve certain functions for the Women's Committee, since none were specified in the organization's rules.Footnote ¹⁸⁴ Further, the Women's Committee sought representation on the Council,Footnote ¹⁸⁵ as well as on other committees and working groups.Footnote ¹⁸⁶ These requests were repeatedly denied,Footnote ¹⁸⁷ as the Council thought that the Women's Committee “gave itself too many powers.”Footnote ¹⁸⁸ The Council also denied requests to increase the number of Women's Committee membersFootnote ¹⁸⁹ and to include “public people and experts” in their work.Footnote ¹⁹⁰ Options to involve more women or other outsiders were thus restricted, as the Council resisted power sharing.

Although the Women's Committee succeeded in constitutionalizing a vague description of its advisory role,Footnote ¹⁹¹ the views of other World Athletics organs consistently took precedence. In 1964, the Women's Committee alleged that the Council and other committees did “not treat properly” issues of interest to the Women's Committee and “ignore[d] its help in deciding various questions.”Footnote ¹⁹² In light of this disregard, the Women's Committee began raising concerns about the absence of women in these other organs, to which the Council responded that “women were eligible to sit on any of these commissions and, indeed the Council if they were so elected . . . but there should be no short-circuiting of standard practices.”Footnote ¹⁹³

Early proposals to change these standard practices were also unsuccessful. For instance, a Romanian proposal to add two positions reserved for women to the Council was rejected in 1976. According to the Council, “there should be no differentiation between men and women as [the organization] wanted the best people on its Council, regardless of sex.”Footnote ¹⁹⁴ Those in support of the proposal cited the fact that “women did not command enough votes to be elected in the normal way,”Footnote ¹⁹⁵ suggesting that Congress delegates, who were mostly men, would vote along gender lines. Other proponents of the proposal pointed to recent “efforts to avoid sex discrimination” in “the international community at large.”Footnote ¹⁹⁶ Instead however, additional Council positions were added to be filled by men from outside Europe, as a means of improving “inter-continental relations within the family.”Footnote ¹⁹⁷ Not only did this approach create a trade-off between different under-represented groups, but the geographically unequal voting power within World Athletics (which remained in place until 1987) skewed the outcome of the vote to add women's seats to the Council: While the Congress voted 212 to 125 in favor of the proposal, this did not reach the two-thirds majority or half the voting strength of World Athletics necessary to carry it.Footnote ¹⁹⁸

The Romanian federation reiterated the same proposal in 1981. Its delegate, Lia Manoliu, who was also a member of the World Athletics Women's Committee, explained to the Congress that the proposal was intended “to draw attention to a form of discrimination,”Footnote ¹⁹⁹ which was being outlawed in countries like the United States.Footnote ²⁰⁰ The Council forcefully denied this accusation, with one vice president insisting that “there was no discrimination . . . against women” in the organization's rules and therefore “no reason why this proposal, which discriminated against men, should be accepted.”Footnote ²⁰¹ The then-president, Primo Nebiolo, underscored that “any individual, irrespective of sex, was free to stand for all positions and would be judged on merit,”Footnote ²⁰² before making clear his view of the merits of women, as summarized in the Congress meeting minutes: “He felt that comments made in Congress about discrimination against women were untrue. Wives were valued, and it was their task to support each other's endeavours in marriage, which he felt was a beautiful task. That was the way of the world, and always would be so.”Footnote ²⁰³

It took nearly another decade for the proposal to be revived by the Women's Committee,Footnote ²⁰⁴ and the Council continued to insist that women be nominated through the same channels as men.Footnote ²⁰⁵ Nonetheless, both the Women's Committee and the U.S. federation put the proposal—to guarantee at least two Council positions to women—to Congress in 1991.Footnote ²⁰⁶ However, because the proposal was considered controversial, the U.S. federation agreed to simply propose the addition of two new Council seats without any further requirements, noting that it would re-submit the original proposal, specific to women, at the next Congress.Footnote ²⁰⁷ By that time, the development of international soft law related to women's rights would play a central role.

2. Defending Regulatory Practices Against Legal Challenge: Pursuing Autonomy

Up to this point, arguments to include more women in the governance of World Athletics had been made based on the increasing number of women competing in the sport. No one argued that women should play a role in governing men's athletics, or athletics more generally. This slowly began to change as women within the organization encountered and invoked language from the international women's rights movement in the 1990s, and support for gender equality started to be used as an indicator of institutional legitimacy. For instance, in the leadup to a 1993 World Athletics conference—“Sports and Athletics for All: Towards One World”—the Chair of the Women's Committee, Ilse Bechthold, asked that a “female representative” from each continental association be invited to attend in order to “show that there is a genuine wish to give women equal opportunities and by this action show again that [the organization] through its President and Council are the world leaders in sport.”Footnote ²⁰⁸ Bechtold's request came against the backdrop of a growing focus on women's rights by the United Nations (UN) and the emergence of multiple international non-governmental organizations (NGOs) focused specifically on women and sport.Footnote ²⁰⁹

The following year, World Athletics was invited to participate in the First World Conference on Women in Sport, which “reflected a shift in the women's sport movement toward its inclusion in a wider feminist and political agenda,” grounded in women's rights codified in international treaties.Footnote ²¹⁰ The conference convener, the British Sports Council, asked World Athletics to send a delegation of “people in key policy making positions,” including “at least one woman who is in a senior position, or who is likely to be in a senior position in the next few years.”Footnote ²¹¹ Accordingly, at least one member of World Athletics’ Women's Committee, Abby Hoffman of Canada, was among the approximately 280 delegates from governmental and non-governmental organizations based in over eighty countries who gathered in Brighton, England in May 1994.Footnote ²¹²

This conference has been described as “ground-breaking” as it established “a more coordinated and purposeful international strategy for women and sport.”Footnote ²¹³ The central pillar of this strategy was the Brighton Declaration on Women and Sport, which was informed by the equality provisions of the UN Charter, the Universal Declaration of Human Rights, and the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW).Footnote ²¹⁴ The Brighton Declaration emphasized that, despite women's growing participation in sporting competition, “increased representation of women in decision making and leadership roles within sport has not followed.”Footnote ²¹⁵ According to the Declaration, “[w]ithout women leaders, decision makers and role models within sport, equal opportunities for women and girls will not be achieved.”Footnote ²¹⁶ More specifically, the Brighton Declaration contained ten principles to guide the action of all institutions involved in sport “to increase the involvement of women in sport at all levels and in all functions and roles.”Footnote ²¹⁷ One principle, recognizing that “[w]omen are under-represented in the leadership and decision making of all sport and sport-related organisations,” directed those organizations to “develop policies and programmes and design structures which increase the number of women coaches, advisers, decision makers, officials, administrators and sports personnel at all levels with special attention given to recruitment, development and retention.”Footnote ²¹⁸

To coordinate and monitor implementation of the Brighton Declaration, the International Working Group on Women and Sport (IWG) was formed and began to approach international sport federations to adopt the Declaration.Footnote ²¹⁹ Although the Declaration was not legally binding—it was “meant to complement all sporting, local, national and international charters, laws, codes, rules and regulations relating to women or sport”Footnote ²²⁰—many saw value in the Declaration's formality and connection to gender equality norms enshrined in law and “powerful UN rhetoric.”Footnote ²²¹ This soft law allowed women to express their demands in structural rather than individual terms, and in an overt rather than covert manner.Footnote ²²²

Hoffman, for one, distributed the Declaration to the Women's Committee and the Council of World Athletics, explaining that it aimed to inspire “equality in sport.”Footnote ²²³ In addition, the IWG wrote directly to World Athletics, asking it to formally adopt and endorse the Brighton Declaration.Footnote ²²⁴ World Athletics eventually did so, although it is unclear exactly when.Footnote ²²⁵ The IWG also asked World Athletics to nominate a liaison and provided a summary of relevant actions taken by other international sport organizations to motivate action.Footnote ²²⁶ Meanwhile, the IOC invited another NGO with close connections to the IWG, Women Sport International (WSI), to discuss relevant issues with the constituent organizations of the Olympic Movement, including international federations like World Athletics.Footnote ²²⁷

Against this backdrop of advocacy around the Brighton Declaration, the World Athletics Council suddenly reversed its long-held position on gender-based quotas. In the leadup to the 1995 Congress, President Nebiolo wrote to all member federations to request their cooperation in “promoting the presence of women in the Council,” referencing, for the first time, a normative imperative in this regard.Footnote ²²⁸ He explained that the fact that “a woman has never been elected member of our Council . . . could almost be interpreted as sexual discrimination by our Federation where, as fundamental principles, we must stand against all forms of discrimination, whether it be by race, religion, sex, age, politics or any other kind.”Footnote ²²⁹ Nebiolo expressed confidence that member federations would take “a strong, unanimous stand against any and all forms of discrimination in our Athletics Movement” at the upcoming Congress by voting in favor of the quota.Footnote ²³⁰

Leading up to the Congress, World Athletics was again faced with the international women's movement, as Bechtold, in her capacity as Chair of the Women's Committee, asked for support to participate in the UN's Fourth World Conference on Women, scheduled for September 1995 in Beijing. Bechtold framed this as an important opportunity to stake out a position of authority, since World Athletics could be the only international sport federation, besides the IOC, in attendance.Footnote ²³¹ The organization would join a wide range of participants, including government delegates, NGOs, and UN agencies, who were together producing a growing body of international soft law enshrining the norm of gender equality.

The significance of this normative development was evident in the opening address of World Athletics’ 1995 Congress, in which a representative of the host state, Sweden, pointed to the equal number of women and men in her government before remarking that World Athletics had “a long way to go before” before it would reach “the same level of equality” and encouraging the organization to follow through with its plan “to take important steps in the right direction.”Footnote ²³² In this regard, the Congress unanimously agreed to add two additional positions to the Council, before discussing whether they should be reserved for women.Footnote ²³³ While the Council proposed limiting any gender quota to only one special election,Footnote ²³⁴ several national federations opposed this limitation, citing the “83 years of [women] being deprived of the opportunity to service on Council,” as well as the fact that “affirmative action . . . was a world-wide trend in associations and even in national government constitutions.”Footnote ²³⁵ The Council yielded and the Congress approved the proposed rule change to permanently require at least two “Women Council Members.”Footnote ²³⁶

The first women elected under the new rule—a “historic moment” for the organization, according to President Nebiolo—were Nawal El Moutawakel of Morocco and Abby Hoffman of Canada, both former Olympians.Footnote ²³⁷ While other women were nominated for the remaining Council positions, none were elected. Instead, most of them were elected to the Women's Committee,Footnote ²³⁸ reflecting the continuation of a trend whereby women only held positions designated “female.”

Notably, at the same Congress, on the proposal of the Romanian federation, World Athletics added a new objective to its Constitution, containing the first ever reference to sex-based discrimination in this governing document (ten years before the amendment to the general non-discrimination provision discussed in Section A above): “To strive to ensure that for all elected positions . . . including Council and Committees, there shall be no discrimination toward race, religion, politics, age or sex.”Footnote ²³⁹ The adoption of this amendment, simultaneously with gender quotas, signaled that the latter fulfilled the former. As soon as the norm of gender equality was acknowledged as relevant to the election rules, those rules were recharacterized as furthering the norm.Footnote ²⁴⁰

World Athletics was therefore well positioned as Bechthold attended the Beijing Conference the following month. There, various NGOs, including WSI, effectively positioned the advancement of women in sport within the broader global women's movement,Footnote ²⁴¹ such that the resulting Beijing Declaration and Platform for Action made several references to sport. For instance, it identified “the underrepresentation of women in decision-making positions” in areas including sport as having “prevented women from having a significant impact on many key institutions.”Footnote ²⁴² It asked private organizations, among others to “[t]ake positive action to build a critical mass of women leaders, executives and managers in strategic decision-making positions” and to “[a]im at and support gender balance in the composition of delegations to . . . international forums.”Footnote ²⁴³ While non-binding, the Beijing Declaration and Platform for Action were explicitly intended to uphold CEDAW and other international human rights treaties,Footnote ²⁴⁴ extending the normative imperatives contained in these treaties to the specific context of sport and to the private associations that govern it.

After World Athletics instituted its first gender quota for leadership positions, this body of international law does not appear to have been successfully invoked again to change World Athletics’ approach, even as its two-women quota remained unchanged for a decade. Some have observed that women in sport, by linking with the broader women's rights movement and international legal instruments enshrining gender equality, succeeded in “directly influencing the most powerful sporting and non-sporting organisations in the world to change sport's patriarchal features.”Footnote ²⁴⁵ However, World Athletics’ adoption of a small quota, combined with a significant recharacterization of its approach as affirmative action, also functioned to avert any further legal challenges on this issue.

3. Rebranding Regulatory Practices: Gender Equality as “Balance”

Following their election to the World Athletics Council, Hoffman and El Moutawakel, along with Bechtold, who was still Chair of the Women's Committee, organized the “Year of Women in Athletics” (YWA)—a collection of activities, in 1998, spotlighting women's participation in the sport.Footnote ²⁴⁶ President Nebiolo used this event to advertise that his organization had “worked long and hard to improve the status of women,” such as by taking “the significant step of changing its constitution to ensure that two places on our Council be reserved for women—permanently,” which he described as an indication that World Athletics was “committed to women's rights.”Footnote ²⁴⁷ Within World Athletics, however, these women to whom the president pointed as evidence of the organization's commitment continued to be excluded from decision making. For instance, their requests to be involved in certain meetings on an ongoing basis, and not only for the purposes of the YWA, were denied,Footnote ²⁴⁸ as were their requests for meetings with the organizational leadership and for administrative support.Footnote ²⁴⁹

Bechthold continued to ask World Athletics to address “the low representation of [w]omen” in the organization's decision-making bodies,Footnote ²⁵⁰ pointing to the Brighton Declaration, and its supplement, the Windhoek Call for Action,Footnote ²⁵¹ which recognized “the need for linkages into existing international instruments,” particularly the Beijing Platform for Action and CEDAW.Footnote ²⁵² However, President Nebiolo simply responded by pointing to the fact that World Athletics was “the first International Federation to modify its constitution to increase women's rights within the organisation” and that it “already ha[d] a higher percentage of women among its membership than the IOC.”Footnote ²⁵³ According to Hoffman and many others, however, the Council operated as a “dictatorship” under Nebiolo.Footnote ²⁵⁴

As a new president, Lamine Diack of Senegal, took over World Athletics at the turn of the millennium, the Women's Committee continued to insist that “[a]fter the many Conferences/Seminars staged by leading [sports] authorities . . . and resolutions and action plans issued over the past years, . . . the time had come to take definite action to change the unsatisfactory situations for women in sport.”Footnote ²⁵⁵ Bechthold proposed new rules guaranteeing “equal rights” for both genders in the processes for nominating delegates to Congress,Footnote ²⁵⁶ as well as a commitment to “take measures to achieve gender equality to close the gender gap in all elected positions in [World Athletics] and within the Member Federations”Footnote ²⁵⁷ However, Diack only supported slowly expanding the existing quota system, raising the number of female Council members to six by 2011.Footnote ²⁵⁸ He described quotas as central to the transformation of the organization from a dictatorship to a democracy: “increased female presence” in the governance structure of World Athletics was necessary “to strengthen [its] participative democracy.”Footnote ²⁵⁹ It would soon be revealed, however, that Diack was using his position to run an extortion scheme, which eventually led to his resignation. His successor, Sebastian Coe, who had been vice president as this scheme was ongoing,Footnote ²⁶⁰ proceeded to identify “gender balance” in decision making as a key pillar of the governance reform necessary to recover the organization,Footnote ²⁶¹ and his own reputation.

By invoking international declarations that linked international human rights norms and standards to the world of sport, women inside World Athletics prompted a turning point at which the organization briefly acknowledged the possibility of discrimination within its ranks, before quickly adopting long-resisted quotas and equating this measure with gender equality. As in the 1984 domestic lawsuit, invoking international (soft) law to challenge World Athletics’ regulatory practices did not diffuse a particular meaning of gender equality into the organization, but rather prompted it to develop its own interpretation of the norm. Again, certain meanings were filtered in, while others were filtered out, in the process. A similar pattern is illustrated by one further example, to which we now turn.

1. Establishing Regulatory Practices: Pursuing Globality and Monopoly

As soon as women were permitted to compete in Olympic track and field, World Athletics began requiring them to prove their femininity. Indeed, the organization was the first international sport federation to formally institute both doping control, in 1928,Footnote ²⁶² and then “sex control,” in 1936, to ensure that “only real women [were] permitted to compete.”Footnote ²⁶³ Over the near-century since then, World Athletics has experimented with various combinations of “sex testing” or “gender verification” methods, including requiring doctor's certificates, on-site physical examinations, chromosomal testing, and hormonal measurements. These have been used to discourage certain women from competing, to disqualify them when they do, to void their performance results and records, and more recently, to explicitly condition their participation on “feminizing” interventions.

Reflecting World Athletics’ interest in globality, early female eligibility rules were seen as necessary to manage potential disputes and disunity between member federations. For instance, their initial introduction responded to objections to the success of Soviet women athletes who, because they did not embody conventional Western femininity, were accused of being “unnaturally inauthentic women, men posing as women, or dopers.”Footnote ²⁶⁴ This led to threats to World Athletics’ monopoly control over female eligibility, as both the International Sports Medicine Federation and its Soviet member association urged World Athletics to stop requiring women to undergo physical examinations to verify their sex, calling this procedure a violation of “common ethical standards” and “a real discrimination as to the women.”Footnote ²⁶⁵ World Athletics denied this accusation of discrimination, claiming that it was actually “doing exactly the opposite,” and in any case, such rules were its “sole prerogative.”Footnote ²⁶⁶ In the words of World Athletics’ then-Secretary, “while the opinions of other associations are always of interest to us, nevertheless the arbitrators are . . . the Council and Congress.”Footnote ²⁶⁷

Another potential threat to World Athletics’ monopoly control was the IOC, which developed its own female eligibility rules. World Athletics thus sought to maintain a close and cooperative relationship with the IOC, while maintaining authority over the precise methods of sex testing in its sport.Footnote ²⁶⁸ In addition, when the IOC created an internal Medical Committee,Footnote ²⁶⁹ World Athletics followed suit, as a way to keep policy development on female eligibility inside the organization,Footnote ²⁷⁰ and to control who could be involved in the process.Footnote ²⁷¹ Later, World Athletics also established an Arbitration Panel to handle disputes about eligibility internally.Footnote ²⁷²

Still, over the course of the 1970s and 1980s, external medico-scientific experts became increasingly critical of World Athletics’ approach to determining female eligibility, which was then based on chromosomal testing. British and Norwegian doctors were among the leaders of this counter-movement, condemning World Athletics for “one of the most horrid misuses of a scientific method.”Footnote ²⁷³ Not only did these doctors criticize chromosomal testing as an ethically and scientifically unacceptable way of verifying sex, some also refused to implement these tests at international competitions.Footnote ²⁷⁴ In addition, professional associations, such as the Pediatric Endocrine Society of the United States and Canada, began adopting resolutions taking a formal stand against World Athletics’ approach.Footnote ²⁷⁵ One Finnish geneticist expressed his puzzlement that “a few key persons” in the medical advisory bodies of World Athletics and the IOC nonetheless still “refuse to drop the tests.”Footnote ²⁷⁶ He wondered, “What is it that makes the officials act the way they do?”Footnote ²⁷⁷ The pursuit of global and monopolistic authority is one answer.

Such authority was threatened not only by criticism from medical experts, but also by significant public controversy surrounding the disqualification, and subsequent reinstatement, of Spanish athlete María José Martínez-Patiño based on her abnormal chromosomes.Footnote ²⁷⁸ In response, Vice President of World Athletics and Chair of its Medical Committee, Arne Ljungqvist, proposed to convene expert workshops to show that World Athletics was “taking the lead” on this issue.Footnote ²⁷⁹ These expert gatherings in the early 1990s,Footnote ²⁸⁰ alongside parallel communications between a smaller working group led by Ljungqvist,Footnote ²⁸¹ resulted in a unanimous recommendation that systematic gender verification be discontinued.Footnote ²⁸² World Athletics accepted the recommendation and publicized its “abolition of sex testing in athletics competitions.”Footnote ²⁸³ This decision was endorsed by various associations of medical professionals, including those representing endocrinologists and other types of doctors in North America and Europe.Footnote ²⁸⁴

However, World Athletics continued ad hoc sex testing based on surveillance of genital anatomy during anti-doping urine tests, as well as pursuant to the authority of the designated Medical Delegate at competitions to “intervene and make any investigation of an athlete he/she may feel necessary.”Footnote ²⁸⁵ At the 2005 World Athletics Congress, the Danish federation explained how this regulatory change allowed World Athletics to sustain its authority, and questionable approach to female eligibility: “everything related to how such an investigation is to be performed is hidden completely from the athletes and officials,” precluding “criticism and embarrassing exposure of the mistakes and shortcomings of the scientific methods used.”Footnote ²⁸⁶ Rather than develop a more defensible approach, the organization simply hid it from public view.

Meanwhile, Vice President Ljungqvist, in his new capacity as chair of the IOC Medical Committee, convened a small ad hoc committee to discuss the participation of “individuals who have undergone sex reassignment” in sport.Footnote ²⁸⁷ The resulting consensus statementFootnote ²⁸⁸ served as a guide for World Athletics’ 2006 Policy on Gender Verification. This interim policy maintained the ad hoc suspicion-based approach, but identified various examples of “gender ambiguity” that should and should not lead to disqualification.Footnote ²⁸⁹ Then, in 2009, after a highly publicized and controversial case of sex testing, targeting South African athlete Caster Semenya,Footnote ²⁹⁰ World Athletics and the IOC convened what one scholar has described as a series of “invitation-only secret meetings” to develop more detailed rules.Footnote ²⁹¹

On this basis, World Athletics introduced, in 2011, two sets of regulations, governing the eligibility of trans women and women with hyperandrogenism (i.e., atypically high testosterone), respectively.Footnote ²⁹² Both regulations required relevant athletes to undergo testing focused on androgenic hormone levels, with the so-called Hyperandrogenism Regulations specifically disqualifying female athletes with testosterone levels above a certain threshold (ten nanomoles per liter of blood serum). Unless an athlete could prove that, due to androgen resistance, she derived “no competitive advantage from androgen levels in the normal male range,”Footnote ²⁹³ her eligibility would be conditioned on undergoing a “prescribed medical treatment” and meeting conditions specified by a panel of medical experts appointed by World Athletics.Footnote ²⁹⁴

Pursuant to these regulations, at least four young athletes, from “rural or mountainous regions of developing countries,” were identified for investigation.Footnote ²⁹⁵ Each underwent a partial clitoridectomy and bilateral gonadectomy after being told this would allow them to re-enter competition.Footnote ²⁹⁶ However, in 2014, another athlete captured by the Hyperandrogenism Regulations—eighteen-year-old Indian sprinter Dutee Chand—refused to undergo any medical intervention, prompting the first direct legal challenge to World Athletics’ female eligibility regulations.

2. Defending Regulatory Practices Against Legal Challenge: Pursuing Autonomy

After the Indian athletics federation informed Chand that she was provisionally suspended from all competitions until she complied with World Athletics’ Hyperandrogenism Regulations, Chand appealed to the Court of Arbitration for Sport (CAS).Footnote ²⁹⁷ In addition to the Regulations’ specification that eligibility decisions “may be appealed exclusively to CAS,”Footnote ²⁹⁸ World Athletics’ Constitution also required athletes to submit any disputes with the organization or its members to CAS, to the exclusion of any other court or authority.Footnote ²⁹⁹ These provisions reflected a longstanding concern of World Athletics, as articulated at a 1988 Council meeting: “At all costs, [the organization] should be kept out of the Courts.”Footnote ³⁰⁰

In her case before the CAS, Chand claimed that the Hyperandrogenism Regulations were unlawfully discriminatory on the basis of sex (as they applied only to women and not to men) and a natural physical characteristic (as they singled out one genetic trait). This violated, said Chand, the Olympic Charter, the World Athletics Constitution, and international human rights law, namely, CEDAW, as incorporated into the law of Monaco, where World Athletics is headquartered.Footnote ³⁰¹ Notably, the CAS Panel did not find it necessary to review domestic or international law, focusing instead on whether the Hyperandrogenism Regulations violated the Olympic Charter and the World Athletics Constitution, both of which prohibit discrimination on the basis of sex.Footnote ³⁰²

World Athletics conceded before the CAS Panel that its Hyperandrogenism Regulations were prima facie discriminatory on grounds of sex. It argued, however, that while “the principle of equal treatment requires like cases to be treated alike . . . it also permits differentiation between objectively different situations where such differential treatment is necessary to protect fair competition.”Footnote ³⁰³ Its submissions, therefore, aimed at showing the unfairness of allowing women with atypically high testosterone to compete against those without, given the organization's goal of ensuring “a level playing field.”Footnote ³⁰⁴ The CAS Panel concluded, however, that World Athletics had not provided sufficient evidence as to “the degree of the advantage that androgen-sensitive hyperandrogenic females enjoy over non-hyperandrogenic females.”Footnote ³⁰⁵ Accordingly, the Panel was “unable to conclude that the Hyperandrogenism Regulations fulfil their stated purpose.”Footnote ³⁰⁶ It therefore suspended the Regulations on the basis that they were not a “necessary and proportionate means of preserving fairness in athletics competition and/or policing the binary male/female classification.”Footnote ³⁰⁷ The Panel granted World Athletics two years to provide additional evidence to justify the Regulations, failing which they would be declared void.Footnote ³⁰⁸

World Athletics used this opportunity to revise its regulations, while simultaneously reframing them in the name of gender equality. First, it reconvened its selected experts, together with the IOC's experts,Footnote ³⁰⁹ to develop a new “consensus” on the issue.Footnote ³¹⁰ The resulting consensus encouraged World Athletics “to revert to CAS with arguments and evidence to support the reinstatement of its hyperandrogenism rules” and suggested that it could “avoid discrimination” by allowing women not eligible for “female competition” to compete instead in “male competition.”Footnote ³¹¹

In the meantime, however, the UN special rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health issued a report condemning the Hyperandrogenism Regulations as discriminatory against women with intersex traits.Footnote ³¹² The report called on sport governing bodies to “implement policies in accordance with human rights norms and [to] refrain from introducing policies that force, coerce or otherwise pressure women athletes into undergoing unnecessary, irreversible and harmful medical procedures in order to participate as women in competitive sport.”Footnote ³¹³

According to one member of World Athletics’ expert working group, this rights-based condemnation led the group to debate whether it would be easier to overturn the Chand ruling by producing scientific evidence or by “crafting regulations the CAS panel thought were nondiscriminatory.”Footnote ³¹⁴ In other words, it considered “the relative merits of the scientific versus the human rights issues involved.”Footnote ³¹⁵ World Athletics decided to focus on the former, commissioning some of the experts who had spearheaded the development of the Hyperandrogenism Regulations—including Dr. Stéphane Bermon, who would subsequently be promoted to lead World Athletics’ new Health and Science Department—to publish new scientific articles to support them.Footnote ³¹⁶

World Athletics then replaced those regulations with new ones, titled Eligibility Regulations for Female Classification (Athlete with Differences of Sexual Development).Footnote ³¹⁷ The new regulations significantly lowered the testosterone threshold for women and applied it specifically to women with certain “differences of sex development” (DSD), or intersex traits,Footnote ³¹⁸ who competed in running events between 400 meters and 1 mile.Footnote ³¹⁹ In light of this modification, Chand was no longer affected and so the pending CAS proceedings were terminated. However, another athlete—the above-mentioned Caster Semenya, who competed primarily in the 800-meter event—decided to challenge the legal validity of the so-called DSD Regulations before the CAS.

At the same time, World Athletics attracted further criticism from various women and sport NGOs, which claimed that the DSD Regulations “exacerbate discrimination against women in sport.”Footnote ³²⁰ Human Rights Watch and multiple UN Special Procedures issued similar condemnations, citing an array of international human rights norms and standards compromised by World Athletics’ regulations.Footnote ³²¹ In response, World Athletics released a public statement expressing its commitment to “equal treatment of men and women” as a “formal requirement of its Constitution,” and to “empowering girls and women through athletics” as “a core value of the organisation.”Footnote ³²² The DSD Regulations helped achieve these commitments, said World Athletics, by “providing females opportunities equal to males.”Footnote ³²³

In line with this new public framing of its regulations, World Athletics submitted to the CAS Panel that it was both entitled and required to provide male and female athletes with “an equal chance to excel” in elite athletics, which required separate competition categories.Footnote ³²⁴ World Athletics also stressed that, while it was “a private body, not a state body,” and therefore was not subject to human rights instruments, it had “committed itself to the principle of equal treatment and non-discrimination.”Footnote ³²⁵ This commitment, said World Athletics, is what “mandates” a female-only competition category, as “the only way of guaranteeing female athletes an equal opportunity to excel.”Footnote ³²⁶ On this basis, World Athletics argued that the DSD Regulations were the “antithesis of discrimination.”Footnote ³²⁷

The Panel disagreed, and turned to the question of whether the discrimination could be justified. In this regard, World Athletics continued to equate the DSD Regulations with “equality of opportunity between male and female athletes,”Footnote ³²⁸ claiming that it could not meet its commitment to “equal treatment of the sexes” without the Regulations.Footnote ³²⁹ In other words, the principle of gender equality not only permitted, but required its sex testing regulations. This led the Panel to understand the case as one of “conflicting rights” between “female athletes who do, and do not, have DSD.”Footnote ³³⁰ While the former have a right not to be discriminated against, their participation in women's athletics would, according to the majority, violate the rights of “relevantly biologically disadvantaged” women.Footnote ³³¹ The notion of “conflicting rights” also led the Panel to dismiss submissions about what it acknowledged were “important rights to equality and freedom from discrimination” codified in domestic and international human rights law.Footnote ³³² In particular, the Panel found that an amicus brief submitted by UN human rights experts, as well as multiple expert reports submitted by lawyers from various domestic jurisdictions, all of which asserted that the DSD Regulations contravened human rights law, were unhelpful because they “did not descend to an examination of the conflicting rights and the resolution of that conflict.”Footnote ³³³ This framing of the case, promoted by World Athletics, allowed the organization to equate its own notion of fairness in sport with the principle of gender equality. On this basis, the majority of the CAS Panel concluded that the DSD Regulations were a necessary, reasonable, and “ex facie” (pending implementation) proportionate means of upholding the “integrity of female athletics” and “the ‘protected class’ of female athletes.”Footnote ³³⁴

A week after this April 2019 decision in its favor, World Athletics issued briefing notes that again framed the DSD Regulations as fulfilling its constitutional commitment to “equal treatment and non-discrimination,” understood as an “equal chance to excel” in sport.Footnote ³³⁵ Further, World Athletics emphasized that the CAS was “competent to rule on all legal claims, including human rights claims,” that the CAS ruling “should be respected and enforced by the national courts,” and that any further disputes should be brought before CAS “and not in any other forum.”Footnote ³³⁶ World Athletics’ recognition of the norm of gender equality, newly positioned as the motivating force behind its regulations, provided the organization with an argument against judicial interference.

3. Rebranding Regulatory Practices: Gender Equality as “Equal Chances”

Ever since the CAS decision, World Athletics has repeatedly emphasized its new justification for the DSD Regulations. For instance, when Semenya initiated proceedings before the Swiss Federal Supreme Court, asking it to set aside the CAS arbitral award,Footnote ³³⁷ World Athletics announced that it would defend its Regulations based on its commitment to “equal rights and opportunities for all women and girls in our sport,” which required “fair and meaningful competition in elite female athletics.”Footnote ³³⁸ Similarly, after Semenya's request to set aside the CAS award was dismissed,Footnote ³³⁹ World Athletics publicly characterized its defense of the DSD Regulations over the past years and a successful fight for “equal rights and opportunities for all women and girls in our sport today and in the future.”Footnote ³⁴⁰ The organization has responded similarly to continued criticism from the UN Human Rights Council,Footnote ³⁴¹ the UN High Commissioner for Human Rights,Footnote ³⁴² Human Rights Watch,Footnote ³⁴³ the World Medical Association,Footnote ³⁴⁴ and various women and sport NGOs,Footnote ³⁴⁵ maintaining that its DSD Regulations “were introduced precisely because [it] is committed to protecting the rights and opportunities of female athletes.Footnote ³⁴⁶

Meanwhile, the Council has remained resistant to actually subjecting itself to external human rights norms and standards. For instance, at the 2019 World Athletics Congress, the South African federation proposed to discuss the UN's recent call to international sport federations to protect the human rights of athletes, while the Swedish federation, supported by its Danish, Finnish, Icelandic, Dutch, and Norwegian counterparts, proposed a new constitutional commitment to respect and promote the Universal Declaration of Human Rights.Footnote ³⁴⁷ The Council objected on the basis of World Athletics’ status as “a private association and not a State” and the possible “legal implications” of such a commitment, including that World Athletics and its member federations “could find themselves subject to human rights courts.”Footnote ³⁴⁸ The Council also insisted that there was already a provision “covering human rights” in the World Athletics Constitution—the non-discrimination provision that had been invoked before the CAS.Footnote ³⁴⁹ The Council agreed, however, to establish a human rights working group to conduct an organizational evaluation.Footnote ³⁵⁰

Two years later, at its 2021 Congress, World Athletics adopted the first report of this working group, which characterized the organization's efforts to respect and protect human rights as “piecemeal and fragmented, with decisions often made in response to issues arising, rather than in a planned, holistic or consistent manner.”Footnote ³⁵¹ The report further characterized World Athletics’ approach as “largely focused on an assessment of risk to the organisation or the sport rather than to individuals.”Footnote ³⁵² It recommended that World Athletics adopt a Human Rights Policy, based on the UN Guiding Principles for Business and Human Rights, to guide decision making, including the drafting and amendment of rules and regulations.Footnote ³⁵³ The organization eventually did so, committing itself, in 2024, to “respecting all internationally proclaimed human rights.”Footnote ³⁵⁴ While World Athletics' new Human Rights Policy specifically references human rights codified in the UN Declaration of Human Rights and the Convention on the Rights of the Child, among other international instruments, it does not reference CEDAW or other potentially relevant treaties such as the Convention on Human Rights and Biomedicine. Further, while the policy identifies the promotion of equity as one its key principles, it elaborates this to mean “in particular equity of opportunity between the sexes, dignity, and fairness in sport competitions and sport governance,”Footnote ³⁵⁵ thus equating its own definition of competitive fairness with gender equality. In addition, the policy specifies that when tensions arise between the rights of someone participating in athletics and “World Athletics’ legitimate aim to ensure fair competition,” the organization will “ensure that such tensions are resolved in a manner that is respectful of all parties.”Footnote ³⁵⁶ In other words, World Athletics maintains that its female eligibility regulations align with human rights norms, while simultaneously asserting that, even if they do not, the organization's judgment on the matter shall prevail.

World Athletics supports this claim, and its parochial interpretation of gender equality, by referencing its success before the CAS and the Swiss Federal Supreme Court. For instance, in response to the IOC's new Framework on Fairness, Inclusion and Non-discrimination on the Basis of Gender Identity and Sex Variations,Footnote ³⁵⁷ World Athletics asserted that its DSD Regulations generally align with the Framework's principles, and to the extent that they did not, the Regulations would remain in place with the legal backing granted by the CAS and the Swiss Federal Supreme Court.Footnote ³⁵⁸

Notably, however, the decisions of both courts are, at the time of writing, still under review by the European Court of Human Rights (ECtHR). In an initial decision, a chamber of the ECtHR concluded that Switzerland, by endorsing the DSD Regulations, had violated multiple guarantees owed to Semenya under the European Convention on Human Rights, namely, the prohibition on discrimination in conjunction with the right to private life, as well as the right to an effective remedy.Footnote ³⁵⁹ World Athletics subsequently encouraged Switzerland to seek referral of the case to the Grand Chamber of the ECtHR, which Switzerland successfully did.Footnote ³⁶⁰

As World Athletics awaits a final decision from the Grand Chamber, President Coe has stood by his position that “[w]hen push comes to shove, if it's a judgement between inclusion and fairness, we will always fall down on the side of fairness.”Footnote ³⁶¹ This prioritization is now reflected in the meaning of gender equality institutionalized in World Athletics. Invocation of the organization's own constitutional prohibition on discrimination,Footnote ³⁶² alongside domestic and international human rights law, did not diffuse a particular meaning of the norm into the organization. It did, however, prompt World Athletics to recharacterize a ninety-year-old regulatory practice, introduced without regard for gender equality, as necessary for this purpose.

1. Globality as Essentialism

World Athletics’ pursuit of globality—worldwide authority over a cohesive athletics realm—has functioned as essentialism: it operates to (re)produce “women” as a universal homogenous category in diametric opposition to the category “men,” privileging those most prototypical and erasing those most divergent. The organization has done so through the regulation of the competition program, by creating a separate and differentiated program of events for women. It has done so through the regulation of its internal governance structure, by creating specific organs and positions to deal with women and/or their interests. And it has done so through the regulation of female eligibility, by establishing criteria to determine whether a woman is sufficiently female to compete in the women's category.

These approaches express “feminine difference” through the “masculine imaginary” or the “male conceptual order.”Footnote ³⁸⁷ That is, women are defined as essentially different from men in terms of what they lack in comparison. This “risks the reproduction of gendered tropes, rather than their disruption.”Footnote ³⁸⁸ It is women's purported difference and weakness that justifies a separate modified category of competition, reserved leadership positions, and female eligibility regulations. The pursuit of globality-as-essentialism is thus a process of “othering” as understood in post-colonial feminism. Different subjects—women and men, or, as one World Athletics official put it, women and “not 100 percent” womenFootnote ³⁸⁹—are (re)produced in relation to each other. One category's inferiority is necessary to the other category's belief in its superiority, which stabilizes and justifies the institutional power structure.Footnote ³⁹⁰ Importantly, othering need not be enacted violently, but, as in the case of World Athletics, can be achieved by classifying individuals as somehow abnormal, making such abnormality appear to be natural rather constructed.Footnote ³⁹¹

Essentialism, by focusing on sex difference as the site of women's oppression, constructs women as “an already constituted and coherent group with identical interests and desires.”Footnote ³⁹² The frequent result is “the universalizing of elite women's experiences in international legal reforms.”Footnote ³⁹³ This is evident in the eventual success of the push for quotas, which primarily benefits women who already hold some influence in athletics governance, in contrast to the ongoing struggle to abolish sex testing, led by disproportionately affected Black and Brown athletes from the Global South.Footnote ³⁹⁴ Importantly, though, World Athletics’ regulation of female eligibility is not disconnected from its other regulatory practices: the need for sex testing is premised on the need to maintain separate and differentiated competition categories and has been approved by a governance structure that has long limited the participation of women, particularly those from countries with less “developed” athletics programs,Footnote ³⁹⁵ in decision making. In other words, while parity, balance, and equal chances are purported to benefit all women, such approaches reassert a gender binary that conducts heteronormativity, cis-genderism, racism, ableism, and the politics of location.Footnote ³⁹⁶ These institutionalized conceptions of gender equality either disregard or actively cast suspicion on those who do not “fit” and therefore constitute a threat to the gender binary.Footnote ³⁹⁷

World Athletics’ pursuit of globality across all three areas of regulation has translated into an impulse to essentialize, as described above. Deconstruction of this essentialism is a difficult task given that actors within World Athletics are largely “confined by the current conceptual system”Footnote ³⁹⁸ and the private authority structure that controls it. While institutional actors may sometimes make connections outside the institution, where alternative perspectives that “work to render visible difference and disagreement”Footnote ³⁹⁹ might exist, a second mechanism—cooptation—intervenes.

2. Monopoly as Cooptation

In tandem with its pursuit of globality, World Athletics’ pursuit of monopoly has entailed excluding or assimilating rivalrous actors, thereby marginalizing or appropriating alternative possibilities for women in the sport. The organization has done so by usurping authority from challengers like long-distance running organizations (the AIMS, the ARRA, and the IRC) and long before that, its most direct rival, the FSFI. It has done so by sidelining women in the Women's Committee and then assimilating its leaders through quotas. And it has done so by selectively bringing in outside experts to support its sex testing regulations.

These practices have suppressed significant challenges to the exclusive regulatory authority of a small group of decisionmakers in World Athletics, by coopting certain extra-institutional actors and thereby justifying the disregard of others. Such cooptation involves appropriating the discourse of challenging entities and coopting their key actors into internal bodies with “responsibility but without substantive power” or assimilating them into “reform programs inside the hegemonic institution.”Footnote ⁴⁰⁰ Entities coopted in these ways have included the Women's Committee and the Medical Committee, as well as the various expert working groups that have developed female eligibility regulations. Their assimilation has reinforced World Athletics’ status as the single and supreme regulator in its domain, leaving fewer potential actors to challenge its “conviction that certain demands have already been met.”Footnote ⁴⁰¹ The effect of cooptation is to blunt or dilute transformative demands as they “become aligned with dominant institutional requirements.”Footnote ⁴⁰²

The cooptation of women into World Athletics’ governance has not perceptibly altered the balance of power in decision making, which has long been concentrated in the hands of the presidents—just six of them, all men, over the course of over 110 years—through various modes of well-documented clientelism.Footnote ⁴⁰³ According to a recent detailed history of World Athletics, the organizational structure has consistently “protected not only those who were—and are—in charge, but also safeguarded the deeply entrenched exclusive, hierarchical, sexist, and conservative attitudes in [the organization's] policy-making.”Footnote ⁴⁰⁴ Part of the explanation is that leadership coalitions or electoral blocs, pushed by quotas to elect women, select those whom they trust to support the status quo.Footnote ⁴⁰⁵ Women therefore often “arrive at the decision-making table captured and/or apathetic” or else are limited by their status as “new and minoritized member[s] of a group already organized according to longstanding institutional alliances.”Footnote ⁴⁰⁶ In other words, they must navigate the fine line between marginalization and cooptation.

Such cooptation within the organization has facilitated cooptation of outside threats. For instance, World Athletics was able to placate demands for immediate recognition of women's long-distance races by getting its own Women's Committee on board with a more conservative approach. This proved effective in preventing other organizations from taking control of women's distance running. By contrast, the Women's Committee was never significantly involved in the development of sex testing policies, which were instead defended by coopting medico-scientific experts. Such experts were formed into a working group originally overseen by the chair of World Athletics’ Medical Committee, the above-mentioned Ljungqvist, who was also a vice president of the organization as a whole. Later, another member of the Medical Committee, who had spearheaded the development of female eligibility regulations, the above-mentioned Bermon, was briefly transformed into a “consultant” to testify about these regulations as an “independent” expert before the CAS and to publish studies supporting them, before being appointed director of World Athletics’ new Health and Science Department.Footnote ⁴⁰⁷ Coopting particular individuals, who can be said to represent the relevant oppositional community, functions as a way to neutralize that opposition.

World Athletics’ pursuit of monopoly-as-cooptation has thus served to keep decision making centralized at the highest executive echelons, protected from challenge and critique. While World Athletics cannot so easily coopt other powerful organizations outside its sport-specific realm, such as governmental and non-governmental human rights organizations, a final mechanism addresses these threats instead.

3. Autonomy as Depoliticization

World Athletics has sought to insulate its global (i.e., essentialist) and monopolistic (i.e., cooptative) regulatory authority from judicial review. The organization's basic objection to such review is that it alone possesses the representational mandate and expertise to regulate the special domain of sport. In this pursuit of autonomy, World Athletics has increasingly relied on technocratic modes of governing, which pre-empt political struggle and thereby purport to depoliticize its regulatory decisions. The organization has done so through the regulation of the competition program, by requiring data to prove women's capacity and interest in different events. It has done so through the regulation of its internal governance structure, by relying on specialized organs and quota systems to incorporate women into decision making. And it has done so through the regulation of female eligibility, by selectively relying on certain expertise to justify its female eligibility rules in “scientific” terms.

These approaches detach claims for gender equality from their political origins, “divest[ing] them of their liberatory content through the technocratic processes of calculation, measurement, and management.”Footnote ⁴⁰⁸ As a result, ‘gender’ becomes associated primarily with women, leaving men and masculinity unexamined, “as though they were somehow natural and immutable.”Footnote ⁴⁰⁹ The problems that World Athletics’ regulatory approaches identify and address are located instead within women and are purportedly “fixed” through technical solutions like data collection, quotas, and medical intervention. Such depoliticized approaches, by simplifying and purporting to solve the problem of gender inequality, tend to preclude active and thoughtful debate about its causes and consequences, thus reducing opportunities for significant contestation in this register. For instance, World Athletics refused to consider that its procedures for adding new events disadvantaged women, used quotas to placate much broader claims for redistribution of decision-making authority, and continues to limit the terms of the debate around female eligibility, responding to all challenges with the refrain, “We will follow the science.”Footnote ⁴¹⁰ However, in this regard, failed technical solutions have justified more technical solutions.Footnote ⁴¹¹ For instance, Ljungqvist, the former head of World Athletics’ Medical Committee, who came to describe the organization's efforts to regulate female eligibility as a “history of ignorance,” simultaneously defended more recent iterations of those same regulations.Footnote ⁴¹² Only small technical tweaks were required to move from ignorant and unfair discrimination to enlightened and justified discrimination.

Paradoxically, the history of gender inequality in World Athletics has served to shield the organization from judicial interference. By organizing competition categories in a particular way, such that subsequent rules would appear gender neutral, World Athletics avoided being compelled by U.S. law to add more events to the women's program. By organizing its governance structure in a particular way, such that the exclusion of women seemed natural, World Athletics avoided being compelled by international (soft) law to doing anything more than institute minimal quotas. And finally, by creating a particular concept of fairness, World Athletics avoided being compelled by CAS to change its approach to female eligibility. The organization has thus significantly insulated its regulatory decision making from judicial interference, while promoting its own “depoliticized” conception of gender equality.

World Athletics is certainly not unique in engaging essentialism, cooptation, and depoliticization. These are tendencies of many organizations, whether public or private, domestic or international. However, understanding these tendencies as interpretative mechanisms that function to consolidate the regulatory authority of private international organizations offers new insight into how “private interpretative entrepreneurship”Footnote ⁴¹³ contributes to the development of transnational legal norms.