{"id":3770,"date":"2024-11-12T14:25:25","date_gmt":"2024-11-12T19:25:25","guid":{"rendered":"https:\/\/journals.law.harvard.edu\/jsel\/?p=3770"},"modified":"2024-11-12T14:25:25","modified_gmt":"2024-11-12T19:25:25","slug":"the-dangers-of-scrutinizing-gender-in-sports","status":"publish","type":"post","link":"https:\/\/journals.law.harvard.edu\/jsel\/2024\/11\/the-dangers-of-scrutinizing-gender-in-sports\/","title":{"rendered":"The Dangers of Scrutinizing Gender in Sports"},"content":{"rendered":"
\"\"<\/a>
Imane Khelif of Team Algeria after the Women’s 66kg quarterfinal match on seventh day of the Olympic Games Paris 2024.<\/figcaption><\/figure>\n

Written by Ahan Dhar.<\/p>\n

The controversy surrounding an Athlete\u2019s gender at the Paris Olympics leads us to wonder: when does online discourse become targeted bullying?<\/span><\/i><\/p>\n

\u201cCould any picture sum up our new men\u2019s rights movement better? The smirk of a male who knows he\u2019s protected by a misogynist sporting establishment enjoying the distress of a woman he\u2019s just punched in the head, and whose life\u2019s ambition he\u2019s just shattered.\u201d<\/span><\/p>\n

These were the <\/span>words<\/span><\/a> of J.K. Rowling in response to an image of Algerian Boxer Imane Khelif at the 2024 Paris Olympics. This picture depicted the <\/span>now-viral moment<\/span><\/a> after Khelif defeated her Italian competitor Angela Carini, who withdrew 46 seconds after the match began, crying as a result of the intense pain she felt in her nose.\u00a0<\/span><\/p>\n

While this could have been a moment to celebrate the success of a rising athlete, it garnered worldwide attention when Khelif\u2019s past <\/span>disqualification<\/span><\/a> at the 2023 Women’s World Boxing Championships came to light, which was allegedly due to her failure of \u201cunspecified eligibility tests\u201d that had to do with her gender. The media discourse that ensued picked apart Khelif\u2019s biology, making false assumptions and spreading disinformation that she seemed to have no ability to control or correct.\u00a0<\/span><\/p>\n

The circumstances surrounding Khelif\u2019s disqualification in 2023 were far from incontrovertible. The president of the International Boxing Association (IBA), the organization which ordered and conducted the tests, <\/span>declared that Khelif and Chinese boxer Lin Yu-ting had XY chromosomes<\/span><\/a>, and were thus excluded from the events.\u00a0<\/span><\/p>\n

However, the IBA was <\/span>recently discredited<\/span><\/a> by the International Olympic Committee (IOC) for a variety of reasons, including governance issues, judging scandals, and their sudden and arbitrary decision to ban the two athletes in 2023.\u00a0<\/span><\/p>\n

The ban was seen as <\/span>especially egregious<\/span><\/a>; the IBA provided no details on their testing procedures and did not publish the results. The IBA <\/span>confirmed<\/span><\/a> that Khelif and Lin \u201cdid not undergo a testosterone examination\u201d but instead were subject to a separate and \u201crecognized test, whereby the specifics remain confidential.\u201d This test alleged that the athletes did not meet the \u201crequired necessary eligibility criteria,\u201d and found the athletes \u201c<\/span>to have competitive advantages over other female competitors<\/span><\/a>.\u201d<\/span><\/p>\n

Furthermore, the IBA only tested and disqualified Khelif <\/a><\/span>after<\/span> she won an early-round bout with Azalia Amineva, a previously unbeaten Russian prospect. The IBA, led by Russian national Umar Kremlev, effectively restored Amineva’s official perfect record. It is possible that due to this bias, the IOC would seek to invalidate this decision and the IBA\u2019s accreditation.\u00a0<\/span><\/p>\n

While the IBA has <\/span>criticized<\/span><\/a> the IOC\u2019s decision to let Khelif and Lin participate in the Olympics, the IOC has continued to urge various national boxing federations to create a \u201cnew global governing body\u201d for the Los Angeles Olympics in 2028.<\/span><\/p>\n

Nonetheless, these facts were overlooked by a vast sector of the public, who believed Khelif to be a man who would threaten both women in the ring, and women\u2019s sports at large. With the polarizing discourse surrounding trans athletes and their <\/span>bans<\/span><\/a> from certain sports, it is unsurprising that a controversy surrounding a successful olympic athlete\u2019s gender would cause such outrage.\u00a0<\/span><\/p>\n

Thousands of commentators online have misgendered Khelif and condemned her involvement in the sport, including public figures like Rowling who have fueled the fire. Donald Trump <\/span>claimed<\/span><\/a> that the athletes banned by the IBA \u201cwere men\u201d who \u201ctransitioned to women.\u201d Elon Musk <\/span>retweeted<\/span><\/a> a post advocating to keep men out of women\u2019s sports. While Khelif actually <\/span>went on to win the Olympic Gold<\/span><\/a> in her category, the proliferation of these unfounded narratives has impacted both her reputation and wellbeing.<\/span><\/p>\n

Khelif has since filed a <\/span>complaint<\/span><\/a> with the Paris public prosecutor\u2019s office against a variety of defendants, alleging she was a victim of \u201caggravated cyber-harassment.\u201d She named public figures like Rowling and Musk as defendants, but also left the case \u201c<\/span>contre X<\/span><\/a>,\u201d allowing her to assert her rights against unknown or unnamed perpetrators.<\/span><\/p>\n

While the lawsuit has not progressed, it will be interesting to see whether Khelif can obtain redress for the derogatory and false comments made about her and her biology. The <\/span>French Internet Harassment Statute<\/span><\/a> requires Khelif to prove a pattern of harassment that has impacted her living conditions or violated her dignity. This offense is only punishable if the harassment has been repeated by an individual or perpetrated by a group of people.<\/span><\/p>\n

Successful claims have emerged under this statute before, like those from French influencer Magali Berdah, who was a <\/span>victim of a cyberharassment campaign<\/span><\/a> launched by a French rapper. Berdah claimed to have received <\/span>69,687 threats and insults<\/span><\/a>, many of which were misogynistic and anti-semitic, causing her severe distress. According to the <\/span>Paris Criminal Court<\/span><\/a>, the 28 people who were sentenced \u201cknew about the cyberbullying suffered by the victim and made a conscious choice to join in with it,\u201d which is what warranted their penalty.\u00a0<\/span><\/p>\n

This has interesting implications for Khelif\u2019s case. While she has received a barrage of insulting messages, it could be tricky for French courts to discern if they all qualify as targeted harassment. Because of the <\/span>dispute about Khelief\u2019s gender<\/span><\/a>, a court might simply view the claimed instances of harassment as misinformed opinions, which would lack the requisite specific intent to harm to meet the standard of criminal cyber-harassment.\u00a0<\/span><\/p>\n

However, with figures like <\/span>Trump<\/span><\/a> and <\/span>Rowling<\/span><\/a> reaffirming their stances on Khelif even after the lawsuit has been filed, the cyber-harassment claim could have some merit. If she succeeds, she will be able to recover for the emotional distress she experienced, and certain perpetrators could even face jail time. However, losing this case would effectively establish that the false narratives spread about Khelif were not targeted nor offensive, which could have grave repercussions for women in sports.\u00a0<\/span><\/p>\n

Khelif has already <\/span>expressed<\/span><\/a> how harmful the discourse was for her \u201chuman dignity.\u201d However, in an era where more transfolk are participating in sports, and consequently more people want to ban transfolk from sports, we could expect this type of treatment to become recurrent.\u00a0<\/span><\/p>\n

Those who harassed Khelif didn\u2019t just look to the 2023 IBA ruling as evidence for Khelif\u2019s gender; many dissected her body, height, and facial structure. She was referred to as manly and was therefore a man. If Khelif\u2019s lawsuit does not succeed, we might shift towards a world where invasive and reductive comments regarding athletes, especially female athletes, are not just common, but authorized.\u00a0<\/span><\/p>\n

Olympic rugby player Ilona Maher has <\/span>already faced such scrutiny<\/span><\/a>. She opened up about her struggles with people referring to her as a man due to her athletic build, and highlights how the pervasive stereotypes of what a woman’s body is supposed to look like has generated, and will continue to generate, criticism against those who don\u2019t fit certain standards.\u00a0<\/span><\/p>\n

While Khelif\u2019s suit is rooted in French law, it will be interesting to see how or if American law can respond to cases of harassment regarding the gender of athletes in women\u2019s sports. It is likely that the U.S. will also find out in the near future if the current legal regime, with state <\/span>cyberbullying laws<\/span><\/a> and common-law torts such as defamation, will be or can be successfully used to obtain redress for the scrutiny of athlete\u2019s gender and bodies. If not, this might just become another part of the athlete\u2019s experience that they are expected to endure.\u00a0<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"

Written by Ahan Dhar. The controversy surrounding an Athlete\u2019s gender at the Paris Olympics leads us to wonder: when does online discourse become targeted bullying? \u201cCould any picture sum up our new men\u2019s rights movement better? The smirk of a male who knows he\u2019s protected by a misogynist sporting establishment enjoying the distress of a 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