Gender Equality in World Athletics: Transnational Norm Development by Private International Organizations

Abstract

This Article examines how World Athletics, a private regulatory body, has shaped the legal norm of gender equality. Focusing on three landmark legal challenges to World Athletics’ regulation of gender, this Article shows how the organization has constructed the meaning of gender equality as it has pursued global, monopolistic, and autonomous authority. World Athletics has retrofitted this norm to align with its longstanding regulatory practices by essentializing women, coopting rivalrous actors, and depoliticizing sex. In doing so, the organization has repeatedly construed and constrained the meaning of gender equality to bolster its private regulatory authority.

Table Of Contents

1. I. Introduction 2

2. II. Global Sport Governance as a Gender Normative Force 8

   1. A. The Transnationality of Sport Governance 8

   2. B. The Gender Normativity of Sport 9

   3. C. The Gendered Regulatory Structure of World Athletics 11

3. III. Retrofitting Gender Equality to Consolidate Private Regulatory Authority 13

   1. A. World Athletics and Domestic Law: Regulating Competition Opportunities 14

      1. 1. Establishing Regulatory Practices: Pursuing Globality and Monopoly 14

      2. 2. Defending Regulatory Practices Against Legal Challenge: Pursuing Autonomy 17

      3. 3. Rebranding Regulatory Practices: Gender Equality as “Parity” 22

   2. B. World Athletics and International Law: Regulating Leadership Opportunities 23

      1. 1. Establishing Regulatory Practices: Pursuing Globality and Monopoly 24

      2. 2. Defending Regulatory Practices Against Legal Challenge: Pursuing Autonomy 28

      3. 3. Rebranding Regulatory Practices: Gender Equality as “Balance” 32

   3. C. World Athletics and Transnational Law: Regulating Female Eligibility 34

      1. 1. Establishing Regulatory Practices: Pursuing Globality and Monopoly 34

      2. 2. Defending Regulatory Practices Against Legal Challenge: Pursuing Autonomy 37

      3. 3. Rebranding Regulatory Practices: Gender Equality as “Equal Chances” 42

4. IV. Private Intervention in Transnational Norm Diffusion 44

   1. A. Strategically Deployed Roles 45

   2. B. Evasive Interpretative Mechanisms 48

      1. 1. Globality as Essentialism 48

      2. 2. Monopoly as Cooptation 50

      3. 3. Autonomy as Depoliticization 51

   3. C. Selectively Informed Results 53

5. V. Conclusion54

I. Introduction

Between 2018 and 2024, World Athletics—a private organization that governs track and field worldwide—increasingly tightened restrictions on transgender¹ and intersex² women's participation in the sport. The organization also articulated a new rationale for such eligibility regulations: the normative imperative of ensuring “equal opportunities” for female athletes.³ World Athletics’ female eligibility regulations, and this new justification for them, have since begun to feature in debates about other laws and policies around the world. In the United States, for example, World Athletics’ regulations are frequently cited in lawsuits about whether trans or intersex students may join certain sports teams or, likewise, use certain bathrooms or go by certain pronouns.⁴ In Spain, the Council of State specifically referenced World Athletics’ regulations when advising that a legislative proposal designed to protect the rights of LGBTQI people across all areas of life was “not the ideal place” to regulate eligibility for women's sports.⁵ Accordingly, the Spanish law explicitly defers to the rules of private sport governing bodies on this matter.⁶ Similarly, in New Zealand, a proposed law aimed at enhancing integrity, safety, and fairness in sport attracted numerous public submissions referencing World Athletics’ regulations,⁷ however, a parliamentary committee advised that the issue of eligibility for women's competition was “more appropriately dealt with” by international sport governing bodies.⁸

Such trust in the regulatory decision making of World Athletics may seem warranted because the organization purports to “lead the way on gender equity initiatives.”⁹ Indeed, it recently celebrated the achievement of “gender equality” in two respects: World Athletics’ competition rules now offer women the same number of events as men¹⁰ and its election rules now guarantee women the same number of leadership positions as men.¹¹ However, as this Article will show, these long-resisted regulatory developments have been motivated not by the normative imperative of gender equality, but rather by the organization's interest in consolidating its private regulatory authority. Gender equality is a norm the organization's leadership has eventually attached to various longstanding regulatory practices, such that those practices have come to define the norm. Tracing this historical process reveals an underappreciated aspect of transnational norm development and diffusion: private organizations, operating beyond traditional legal jurisdictions, shape the meaning of fundamental human rights norms as they interact with them. In the case of World Athletics, discrete approaches to regulating women's involvement in the sport, developed to serve private (and male-dominated) organizational interests, have come to be equated with the norm of gender equality, as enshrined in various legal instruments.

Gender equality is, of course, widely recognized as a fundamental human right and normative goal, enshrined in numerous international agreements and declarations,¹² as well as in domestic legal systems around the world.¹³ In these legal instruments, gender equality is “generally defined in open-textured terms,” such as a basic prohibition on sex-based discrimination.¹⁴ Such breadth and ambiguity is typical of many legal norms, particularly those aimed at social reform, because “lawmakers agree more on broad symbolic meanings than on detailed constructions.”¹⁵ Such indeterminacy is perhaps particularly acute when it comes to international legal norms,¹⁶ including human rights norms permeated with the tension between universalism and relativism.¹⁷ Gender equality may therefore be better described as a “normative umbrella” containing multiple sub-norms,¹⁸ or as a “norm cluster,” which is “large and fuzzy” and therefore particularly “open to interpretation.”¹⁹ The precise meaning of gender equality, then, is constructed in specific institutional contexts, shaped by the particular features of those contexts.

A key institutional context in this regard is international organizations, and so, scholars of international law and international relations have come to study the role of international organizations as lawmakers and norm-diffusers,²⁰ including with respect to gender equality.²¹ However, this line of research has focused primarily, if not exclusively, on intergovernmental (i.e., state-based) organizations. By contrast, the role of private (i.e., non-state) global governing bodies in shaping important legal norms, including gender equality, is not well understood. This remains so despite the surge of legal scholarship examining the “ever-expanding realm of private governance and private power,”²² and its cross-border interactions with public authorities.²³ While the role of private organizations in creating and diffusing specific regulatory standards has garnered scholarly attention,²⁴ their role in defining existing, and traditionally public, legal norms has not.²⁵

To address this gap, this Article offers a systematic examination of how one powerful private global governing body has given meaning to a fundamental legal norm. More specifically, this Article examines how World Athletics—formerly, and for most of its history, known as the IAAF²⁶—has institutionalized the norm of gender equality, imbuing it with meaning in the process. While often identified as a key instance of transnational law and global governance beyond the state, sport is rarely actually studied as such,²⁷ let alone from feminist or other critical perspectives.²⁸ Such study is warranted, however, in order to better understand how private governing bodies contribute to the interpretation, and potential dilution, of transnational legal norms.

The overall contention of this Article is that World Athletics intervenes in the development and diffusion of the legal norm of gender equality. The organization's interventions in this regard have been guided by its pursuit of private regulatory authority along three foundational dimensions, which I refer to as globality, monopoly, and autonomy. Globality refers to the pursuit of worldwide governance: World Athletics seeks to regulate everyone, everywhere, who participates in its sport, and to thereby establish a singular and cohesive realm of authority. Monopoly refers to the pursuit of exclusive governance: World Athletics seeks to be the sole and supreme regulator of this realm, and therefore to exclude rivalrous regulators from interfering in this realm. Autonomy refers to the pursuit of self-governance: World Athletics seeks to regulate not only its sport but also its own internal operations, entirely independently, and therefore to avoid external oversight or review of its exercises of authority.

It is through this three-dimensional authority that World Athletics has carved out its jurisdiction. Globality, monopoly, and autonomy have therefore served as both levers of, and brakes on, regulatory change. The pursuit of authority along these three dimensions has both motivated and constrained the regulatory reforms that World Athletics now identifies as emblematic of gender equality. These reforms have not been directed at disrupting unequal gender relations, but rather at reinforcing World Athletics’ gendered power structure. The regulatory practices that World Athletics now cites as the culmination of a longstanding commitment to gender equality are, in fact, a collection of ad hoc responses to threats to the organization's authority, arising from women's growing participation in the male-dominated sport over many decades.

This observation stems from a careful analysis of World Athletics’ engagements with women, based on more than a thousand rarely consulted archival documents spanning the organization's entire history.²⁹ Over the course of this history, World Athletics has regulated gender by imposing various restrictions on women that have not applied to men. As alluded to in the opening paragraph of this Article, these include rules and procedures governing which track and field events women may participate in, which decision-making positions women may hold, and which women qualify for the female category of competition. For many decades, World Athletics incrementally reformed these regulatory practices in pursuit of a global monopoly over the sport, completely disregarding gender equality as a normative imperative. However, certain women eventually invoked the legal norm of gender equality to challenge the validity of each of World Athletics’ regulatory practices. While each challenge was brought by a different constituency, invoking different legal instruments, during a different decade, each represents a similar turning point at which World Athletics took a new approach in defense of its autonomy: the organization simultaneously acknowledged gender equality as a relevant norm and reframed its impugned regulatory practice as affirmative action in furtherance of this norm.

This move of equating a new normative imperative with measures designed for a different, and even contrary, purpose has been facilitated by certain mechanisms that constrain the transformative potential of a norm like gender equality: essentializing women, in binary and subordinated opposition to men; coopting rivalrous actors, as a means of neutralizing dissident claims; and depoliticizing sex and gender,³⁰ as technical and objective, rather than socially constructed, categories. These phenomena are neither accidental nor inevitable, although they may seem to be so when regulatory decision making is guided by the pursuit of global, monopolistic, and autonomous authority. Tracing these dynamics of regulatory reform illuminates how law can shape norm change in private global governance, but, even more so, the converse: how private global governing bodies can shape the meaning of legal norms as they institutionalize them.

To contextualize this account of transnational norm development, Part II begins by introducing the regulation of sport as a pioneering and powerful example of private global governance, which has a particular capacity to diffuse gender norms worldwide. This is followed by a brief overview of World Athletics’ organizational structure and the regulatory practices that have figured centrally in its evolution from an exclusively male enterprise to a leading proponent of women in sport.

Part III then discusses three landmark legal challenges to World Athletics’ regulatory practices, positioning them as critical moments in a longer process of norm development by this private organization. In each case, different women invoked different legal instruments, which guarantee equality or prohibit discrimination, to challenge a particular and longstanding practice of restrictively incorporating women into the World Athletics “family.”³¹ And in each case, World Athletics suddenly recharacterized the relevant regulatory practice—incrementally reformed over the years as necessary to sustain its global and monopolistic authority—as in furtherance of gender equality, thus evading legal interference in its autonomous authority. Taken together, these three episodes of norm diffusion show how considerations of authority stimulated the reframing of disparate regulatory approaches as not only compatible with, but also as necessary (and even sufficient) elements of, gender equality as a normative principle.

Part IV follows by elaborating how these relatively fleeting moments of interaction between World Athletics and various legal regimes that enshrine the norm of gender equality have had lasting impacts on the meaning of this norm. Simultaneously playing the role of norm adopter, norm interpreter, and norm diffuser has allowed World Athletics to define gender equality in the interests of largely unchecked private authority. The organization's orientation toward globality, monopoly, and autonomy has restricted debates about the meaning of gender equality, through the above-mentioned mechanisms of essentialism, cooptation, and depoliticization. The resulting interpretation of gender equality can be seen as part of a broader trend of diluting feminist ideas as they are institutionalized.

Part V concludes by summarizing how World Athletics has retrofitted gender equality to serve its private aims, before briefly reflecting on how the conceptual framework offered in this Article might inform future study of transnational norm development, involving an ever more complex combination of public, private, and hybrid governance actors.

II. Global Sport Governance as a Gender Normative Force

Sport is an epitomic example of law and governance beyond the state; a network of private organizations makes the rules that apply worldwide. To contextualize the analysis of the interaction between one of these organizations and the legal norm of gender equality, this Part briefly describes the transnational nature of sport governance, both in terms of its organizational structure and its normative force. It then highlights the role that sport governing bodies have long played in constructing and disseminating gender normativity, in particular. Finally, it outlines the organizational structure of World Athletics and summarizes the evolution of its key regulatory practices that have come to define gender equality.

A. The Transnationality of Sport Governance

The modern sport system, which emerged at the turn of the twentieth century, is among the pioneering instances of “the globalization of rule observance.”³² The system has been aptly described as a de-territorialized realm “governed by distinctive laws and practices” and shaped by “the largely unheralded control exerted by international organizations overseeing individual sports and Olympic competitions.”³³ These international sports organizations are not made up of states, but rather are private associations established under the laws of various countries, usually Switzerland, although Monaco also boasts a handful, including World Athletics. The statutes of most international sport federations stipulate that any sport-related disputes must be resolved by arbitration before the Court of Arbitration for Sport (CAS)—a private arbitral tribunal located in Switzerland—to the exclusion of regular courts of law. This privatized structure has led scholars to characterize sports law and governance as “not just international” but also “non-governmental” because its “normative underpinning derives not from any treaty entered into between sovereign states, but from international agreements between [private] bodies.”³⁴ These agreements require universal adherence to a “global codification” of privately enacted rules, and thus have effectively “delocalised sport and moved it towards a single global regulatory framework and governance.”³⁵

The shape of this governance structure is often described, in its simplest form, as a pyramid: international sport governing bodies are positioned at the peak, national sport governing bodies in the middle, and individual participants (athletes, coaches, officials, and so on) at the bottom.³⁶ It is also sometimes described as a private contractual order because membership in a higher tier of the pyramid is granted in exchange for the lower tier's agreement to abide by the higher governing body's rules and regulations.³⁷ In other words, to participate in sport, individuals must agree to be governed by the national governing body of their sport, which in turn must agree to be governed by the international governing body of that sport. Accordingly, anyone who wants to participate in competitive sport is ultimately bound by the rules of a private international organization.

This is not to say that sports law and governance is entirely “anational” or “without a state.”³⁸ There are important, albeit subtle and complex, connections between private sports law and national and supranational state-based law.³⁹ It is precisely this public-private hybridity that has led scholars to describe the rules of sports as global or transnational law and, likewise, as a “global administrative system”⁴⁰ or “transnational legal order.”⁴¹ Within this system or order, however, it is primarily the private global sport governing bodies that make and enforce the rules, and, in doing so, they are not directly subject to control by domestic legal systems, nor by accountability mechanisms associated with treaties.⁴² Indeed, the statutes of sport governing bodies generally prohibit both political and judicial interference by governments.⁴³ Moreover, non-compliance with these and other rules established by global sport governing bodies carries the risk of disqualification from international competition, which individual participants, national sport governing bodies, and their home state governments all seek to avoid. As a result, global sport governing bodies have significant latitude to govern both themselves and all who participate in sport worldwide.

B. The Gender Normativity of Sport

While their governance structure is primarily private, sports are a public spectacle and social institution of great normative significance. A substantial portion of the global population participates in organized sports as athletes, coaches, administrators, and so on, and are thus directly subjected to both the formal rules and informal culture of sport. As Barbara Keys has put it, “[m]embership in the international sport community entails submission to the dictates of global authorities in matters of eligibility, rules, and adjudication, as well as acculturation to the philosophical and moral values that underpin modern sport.”⁴⁴ Importantly, though, the normative impact of sport is not limited to those who directly participate in it; sport diffuses norms much further. Because sport is a “massively visible social practice, extensively relayed worldwide by the media,”⁴⁵ most people—including, but not limited to, the billions of fans who intentionally consume sport—are “confronted daily by the omnipresent signs of sport in public and media space.”⁴⁶ On top of this large scope of influence is the nature of sport itself: sport has “cloaked itself as a natural activity,”⁴⁷ making it a particularly effective bearer of ideologies disguised as inevitable and self-evident truths.⁴⁸ In this way, sport exerts “powerful but largely unseen influence on the lives of much of the world's population.”⁴⁹ And this influence is shaped in no small part by the private international organizations that govern sport.

The normative influence of sport is particularly evident when it comes to the regulation of sex/gender⁵⁰—that is, the classification and control of individuals and groups based on notions of maleness/masculinity and femaleness/femininity, and the relationship between them. In this regard, scholars have described sport as especially “gender specific”⁵¹ because it is “so clearly and consistently divided by sex and gender”⁵² and presents a “model of the relation between men and women” based on “particular notions of maleness and femaleness.”⁵³ Arguably,“[f]ew other institutions naturalize the segregation of men and women so near perfectly,”⁵⁴ making sport “an evocative symbolic system that demonstrates the apparently ‘natural’ division of humans into two separate and dichotomous genders, and also demonstrates the apparently ‘genetically based’ hierarchy between the genders.”⁵⁵ Many scholars therefore characterize sport as fundamentally organized according to the ideologies of patriarchy and heteronormativity.⁵⁶ While sport has undoubtedly played a role in reproducing hegemonic masculinity and femininity,⁵⁷ evidence of “leaky hegemony”⁵⁸ is found in the fact that women's participation in the once purportedly male preserve of sport has steadily grown. Sport is now a well-known site of feminist struggle where gender relations are not only reproduced but also resisted.⁵⁹

C. The Gendered Regulatory Structure of World Athletics

World Athletics offers a prominent example of the evolution of gender normative regulatory practices in global sport governance. The organization was founded between 1912 and 1913 by a small group of men, representing various national athletics associations.⁶⁰ Their shared purpose was to adopt standard rules and regulations for international track and field competitions, “thus enabling athletes from different countries to meet each other for the future on a perfectly equal footing.”⁶¹ Such standardization, including the registration of world records, supported the Olympic aim of “the exaltation of male athleticism,” with “female applause as the reward.”⁶² The founders of what was then known as the International Association of Amateur Athletics (IAAF) did not envision that women would participate in the sport or its organizational leadership.

Since its founding, World Athletics’ governance structure has included the same basic organs. The first is the Council: the elected executive decision-making body, which has grown from six to twenty-six members, including the president, and which has exclusive power to adopt, amend, and repeal rules and regulations.⁶³ The second is the Congress: the collection of national athletics federations that make up the membership of World Athletics, which has grown from seventeen to 214, and which elects the Council and may vote to amend the organization's Constitution, usually on the recommendation of the Council. The third is an array of either elected or appointed Committees and Commissions tasked with advising the Council and the Congress on particular regulatory topics.⁶⁴ The president oversees all these committees and commissions, in addition to chairing the Congress and leading the work of the Council.⁶⁵ The six men—five of them Western European—who have successively held the presidency have therefore wielded significant power to direct the organization's operations.⁶⁶

A consistent topic of concern for each president has been whether and how to incorporate women into the organization's originally all-male preserve. Three regulatory approaches have done significant work in this regard, each of which emerged in the 1920s, as women's involvement in athletics challenged the organizational presumption that track and field competition, governance, and excellence were the exclusive domains of men. First, the organization circumscribed the events in which women were permitted to compete, limiting them to only certain events considered suitable for the female sex. Second, the organization circumscribed the leadership positions that women were permitted to hold, limiting them to a small number of the least influential, and female-specific, positions within the organization's governance structure. Third, World Athletics circumscribed the physical attributes that women were permitted to embody in order to be eligible for the female category of competition, limiting them to those considered acceptably feminine and forbidding those considered too masculine.

Each of these regulatory approaches has gradually evolved, over the course of the past century, to incorporate more women into the realm of World Athletics. Just in the past several years, however, World Athletics began to describe each mode of governing gender using terms that denote fulfillment of a normative commitment to gender equality. First, the regulatory reforms that now offer the same number of track and field events to women and men are described as ensuring gender “parity” in competition.⁶⁷ Second, the regulatory reforms that now guarantee the same number of executive leadership positions to women and men are described as ensuring gender “balance” in decision making.⁶⁸ Third, the regulatory reforms that condition eligibility for the women's category of competition on certain markers of femaleness (or non-maleness) are described as ensuring gender “equal chances” to excel in sport.⁶⁹

These new normative designations have supported the organization's recent rebranding initiative, following a major corruption scandal involving the solicitation of bribes to cover up violations of anti-doping rules.⁷⁰ The initiative has included a name change, from the IAAF to World Athletics, “to represent a modern, more creative and positive face for the sport” and “to more clearly communicate its mission as the leader of the world's most participatory sport.”⁷¹ In this regard, World Athletics developed a strategy to position itself as a “leading voice on issues of gender equality, empowering women in athletics worldwide.”⁷² It then commissioned market research showing that the majority of its fan base believes that World Athletics is “truly committed to championing equality.”⁷³ Embrace of gender equality, as a normative commitment, has thus been central to World Athletics’ recent efforts to re-establish its legitimacy as “the sole competent international authority for the sport of Athletics worldwide.”⁷⁴ But this connection between norm institutionalization and consolidation of private authority is not new. As will be shown, World Athletics’ articulation of its regulatory practices in terms of the normative imperative of gender equality is the culmination of multiple piecemeal processes of ad hoc regulatory reform aimed at warding of various threats to its authority. The recharacterization of these regulatory practices as in furtherance of gender equality has been a response to the invocation of this legal norm to directly challenge those practices.

III. Retrofitting Gender Equality to Consolidate Private Regulatory Authority

The regulatory practices that World Athletics now characterizes as instantiations of gender equality have been gradually reformed over the course of a century. Each regulatory practice has followed its own trajectory, but common to each is that reform has been driven by the organization's interest in consolidating its regulatory authority along three foundational dimensions: globality, monopoly, and autonomy. Pursuit of such three-dimensional authority is how the organization has protected and expanded its jurisdiction, such that all who seek to participate in track and field competition must follow World Athletics’ rules, to the exclusion of potentially competing rule-makers, and with limited recourse to legal review of those rules.

Despite these consistent efforts to carve out its own sovereign jurisdiction, World Athletics has occasionally interacted with legal regimes that enshrine gender equality as a fundamental right. In each interaction, one or more women invoked available legal instruments guaranteeing this right, to challenge a particular regulatory practice that had long disadvantaged them. First, in the 1980s, an international group of runners invoked U.S. law to challenge the exclusion of long-distance races for women from the athletics program of the Olympic Games (Section A). Then, in the 1990s, members of World Athletics’ Women's Committee invoked international (soft) law to challenge the exclusion of women from World Athletics’ executive ranks (Section B). And finally, in the 2010s, individual runners began to invoke private sports law, alongside domestic and international law, to challenge the exclusion of women deemed insufficiently female from competition (Section C).

In the decades preceding the invocation of law in each case, World Athletics gradually established the relevant regulatory approach in response to challenges to the unity of the athletics realm (threatening globality) and its exclusivity over this realm (threatening monopoly), while ignoring or denying the relevance of the norm of gender equality to its regulatory practices. When certain women eventually invoked specific legal instruments and institutions (threatening autonomy, and thus the global and monopolistic authority established over decades), World Athletics acknowledged the relevance of the norm of gender equality, while defending each of its regulatory approaches as compatible with this norm. As the organization continued a process of incremental reform, it rebranded each regulatory practice as purposefully in fulfillment of a normative commitment to gender equality. This interpretative work, to align the legal norm of gender equality with regulatory practices developed for other purposes, is central to understanding how a private organization has contributed to the meaning of gender equality as this norm travels transnationally.

A. World Athletics and Domestic Law: Regulating Competition Opportunities

World Athletics’ first direct encounter with the legal norm of gender equality arose in the context of a challenge to its rules and procedures for incorporating (or not) women's events into the international competition program. The development of these rules and procedures was long guided by concerns of globality and monopoly, which were exacerbated by a U.S. lawsuit that directly challenged World Athletics’ autonomy. In defense of these dimensions of private authority, the organization retrofitted the norm of gender equality to align with existing rules and procedures, recharacterizing them as in pursuit of gender “parity.”

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.⁷⁵ This was less than half the number of events already staged at the short-lived Women's Olympics in the 1920s and 1930s.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.”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.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.⁷⁹ This remained true even as a long distance “running boom” emerged in the United States and several other countries in the 1970s.⁸⁰ In response to urgent requests to add a women's marathon event to the 1980 Olympics from Kathrine Switzer⁸¹—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”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.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.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.”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)⁸⁶ would exist if the “founding fathers or those groups waited for all countries or regions of the world to develop sports, particularly athletes.”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.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.⁸⁹ However, the continued exclusion of longer women's races, namely the 5,000-meter, 10,000-meter, and marathon, from international competitions⁹⁰ invited condemnation from proponents of women's long distance running in the United States. They called World Athletics’ decision an “injustice and discrimination,”⁹¹ an affront to “human rights,”⁹² a manifestation of “sexism . . . insulting to the personhood of women,”⁹³ a denial of “equal opportunity,”⁹⁴ and a denial of “the right to compete in the compete in the Olympics because of sex.”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.”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.”⁹⁷ They expressed concern that World Athletics was “in danger of losing control” of long distance running.”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.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 1983,¹⁰⁰ after which the IOC agreed to follow suit.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.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.”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.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.”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.”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,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.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.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.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.¹¹¹ While the Council decided to add a women's 10,000-metre race to its world championship program going forward¹¹² and the IOC agreed to include all events on that program in the 1988 Olympics,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,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.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.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.”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.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.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,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.”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.”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.”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.”¹²⁴

The ACLU lawyers publicly characterized these “integrity of process” arguments as “spurious because the process is whatever the IOC wants it to be.”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.”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.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.”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 1970.¹²⁹ 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.”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.”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.”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.”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.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.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.”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.”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.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.”¹³⁹ The facially neutral rule did not therefore violate equal protection guarantees.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.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.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.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.”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.”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.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.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.”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.”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.”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,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.”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.¹⁵³ The Congress agreed, in 2003, to this constitutional revision:

To strive to ensure that no gender, race, religious, political or other kind of unfair discrimination exists, continues to exist, or is allowed to develop in Athletics in any form, and that all may participate in Athletics regardless of their gender, race, religious or political views or any other irrelevant factor.¹⁵⁴

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.”¹⁵⁵ The president then made repeated public statements describing this regulatory reform as gender “parity,”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.”¹⁵⁷ Similarly, the president described his sport as a “pioneer,”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.”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.

B. World Athletics and International Law: Regulating Leadership Opportunities

World Athletics’ second major encounter with the legal norm of gender equality arose in the context of a challenge to its rules and procedures for incorporating (or not) women into the governance structure of the organization. The development of these rules and procedures was long guided by concerns of globality and monopoly, which were exacerbated by the invocation of international (soft) law, challenging World Athletics’ autonomy. In defense of these dimensions of private authority, the organization again retrofitted the norm of gender equality to align with its existing rules and procedures, recharacterizing them as in pursuit of gender “balance.”

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.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.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.”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”¹⁶³ by creating a special committee within World Athletics to manage women's track and field instead.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.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.”¹⁶⁶ He did so through a series of “forceful methods”¹⁶⁷ aimed at convincing the FSFI to “give up its work”¹⁶⁸ so World Athletics could “take the women's sport in [its] own hands.”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.”¹⁷⁰ The World Athletics Congress proceeded to vote, without any input from the FSFI, to assume exclusive control over women's track and field.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.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,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.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.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.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,”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.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.”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,”¹⁸⁰ while others rejoined that nations should earn greater voting power as they “developed athletically.”¹⁸¹ While World Athletics expressed pride that its “World Government” included “men of utterly different race . . . religion . . . [and] political ideology,”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.¹⁸³ It asked the Council to approve certain functions for the Women's Committee, since none were specified in the organization's rules.¹⁸⁴ Further, the Women's Committee sought representation on the Council,¹⁸⁵ as well as on other committees and working groups.¹⁸⁶ These requests were repeatedly denied,¹⁸⁷ as the Council thought that the Women's Committee “gave itself too many powers.”¹⁸⁸ The Council also denied requests to increase the number of Women's Committee members¹⁸⁹ and to include “public people and experts” in their work.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,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.”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.”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.”¹⁹⁴ Those in support of the proposal cited the fact that “women did not command enough votes to be elected in the normal way,”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.”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.”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.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,”¹⁹⁹ which was being outlawed in countries like the United States.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.”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,”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.”²⁰³

It took nearly another decade for the proposal to be revived by the Women's Committee,²⁰⁴ and the Council continued to insist that women be nominated through the same channels as men.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 1991.²⁰⁶ 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.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.”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.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.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.”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 1994.²¹²

This conference has been described as “ground-breaking” as it established “a more coordinated and purposeful international strategy for women and sport.”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).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.”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.”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.”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.”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.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”²²⁰—many saw value in the Declaration's formality and connection to gender equality norms enshrined in law and “powerful UN rhetoric.”²²¹ This soft law allowed women to express their demands in structural rather than individual terms, and in an overt rather than covert manner.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.”²²³ In addition, the IWG wrote directly to World Athletics, asking it to formally adopt and endorse the Brighton Declaration.²²⁴ World Athletics eventually did so, although it is unclear exactly when.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.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.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.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.”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.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.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.”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.²³³ While the Council proposed limiting any gender quota to only one special election,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.”²³⁵ The Council yielded and the Congress approved the proposed rule change to permanently require at least two “Women Council Members.”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.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,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.”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.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,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.”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.”²⁴³ While non-binding, the Beijing Declaration and Platform for Action were explicitly intended to uphold CEDAW and other international human rights treaties,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.”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.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.”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,²⁴⁸ as were their requests for meetings with the organizational leadership and for administrative support.²⁴⁹

Bechthold continued to ask World Athletics to address “the low representation of [w]omen” in the organization's decision-making bodies,²⁵⁰ pointing to the Brighton Declaration, and its supplement, the Windhoek Call for Action,²⁵¹ which recognized “the need for linkages into existing international instruments,” particularly the Beijing Platform for Action and CEDAW.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.”²⁵³ According to Hoffman and many others, however, the Council operated as a “dictatorship” under Nebiolo.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.”²⁵⁵ Bechthold proposed new rules guaranteeing “equal rights” for both genders in the processes for nominating delegates to Congress,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”²⁵⁷ However, Diack only supported slowly expanding the existing quota system, raising the number of female Council members to six by 2011.²⁵⁸ 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.”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,²⁶⁰ proceeded to identify “gender balance” in decision making as a key pillar of the governance reform necessary to recover the organization,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.

C. World Athletics and Transnational Law: Regulating Female Eligibility

World Athletics’ most recent encounter with the legal norm of gender equality arose in the context of challenges to its rules and procedures for incorporating (or not) women into the female category of competition. The development of these rules and procedures was long guided by concerns of globality and monopoly, which were exacerbated by complaints before the Court of Arbitration for Sport, followed by the Swiss Federal Court and the European Court of Human Rights, thus challenging World Athletics’ autonomy. In defense of these dimensions of private authority, the organization once again retrofitted the norm of gender equality to align with its existing rules and procedures, recharacterizing them as in pursuit of gender “equal opportunity.”

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 1928,²⁶² and then “sex control,” in 1936, to ensure that “only real women [were] permitted to compete.”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.”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.”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.”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.”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.²⁶⁸ In addition, when the IOC created an internal Medical Committee,²⁶⁹ World Athletics followed suit, as a way to keep policy development on female eligibility inside the organization,²⁷⁰ and to control who could be involved in the process.²⁷¹ Later, World Athletics also established an Arbitration Panel to handle disputes about eligibility internally.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.”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.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.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.”²⁷⁶ He wondered, “What is it that makes the officials act the way they do?”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.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.²⁷⁹ These expert gatherings in the early 1990s,²⁸⁰ alongside parallel communications between a smaller working group led by Ljungqvist,²⁸¹ resulted in a unanimous recommendation that systematic gender verification be discontinued.²⁸² World Athletics accepted the recommendation and publicized its “abolition of sex testing in athletics competitions.”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.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.”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.”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.²⁸⁷ The resulting consensus statement²⁸⁸ 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.²⁸⁹ Then, in 2009, after a highly publicized and controversial case of sex testing, targeting South African athlete Caster Semenya,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.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.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,”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.²⁹⁴

Pursuant to these regulations, at least four young athletes, from “rural or mountainous regions of developing countries,” were identified for investigation.²⁹⁵ Each underwent a partial clitoridectomy and bilateral gonadectomy after being told this would allow them to re-enter competition.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).²⁹⁷ In addition to the Regulations’ specification that eligibility decisions “may be appealed exclusively to CAS,”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.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.”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.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.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.”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.”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.”³⁰⁵ Accordingly, the Panel was “unable to conclude that the Hyperandrogenism Regulations fulfil their stated purpose.”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.”³⁰⁷ The Panel granted World Athletics two years to provide additional evidence to justify the Regulations, failing which they would be declared void.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,³⁰⁹ to develop a new “consensus” on the issue.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.”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.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.”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.”³¹⁴ In other words, it considered “the relative merits of the scientific versus the human rights issues involved.”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.³¹⁶

World Athletics then replaced those regulations with new ones, titled Eligibility Regulations for Female Classification (Athlete with Differences of Sexual Development).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,³¹⁸ who competed in running events between 400 meters and 1 mile.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.”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.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.”³²² The DSD Regulations helped achieve these commitments, said World Athletics, by “providing females opportunities equal to males.”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.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.”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.”³²⁶ On this basis, World Athletics argued that the DSD Regulations were the “antithesis of discrimination.”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,”³²⁸ claiming that it could not meet its commitment to “equal treatment of the sexes” without the Regulations.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.”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.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.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.”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.”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.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.”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,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.”³³⁸ Similarly, after Semenya's request to set aside the CAS award was dismissed,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.”³⁴⁰ The organization has responded similarly to continued criticism from the UN Human Rights Council,³⁴¹ the UN High Commissioner for Human Rights,³⁴² Human Rights Watch,³⁴³ the World Medical Association,³⁴⁴ and various women and sport NGOs,³⁴⁵ maintaining that its DSD Regulations “were introduced precisely because [it] is committed to protecting the rights and opportunities of female athletes.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.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.”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.³⁴⁹ The Council agreed, however, to establish a human rights working group to conduct an organizational evaluation.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.”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.”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.³⁵³ The organization eventually did so, committing itself, in 2024, to “respecting all internationally proclaimed human rights.”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,”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.”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,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.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.³⁵⁹ World Athletics subsequently encouraged Switzerland to seek referral of the case to the Grand Chamber of the ECtHR, which Switzerland successfully did.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.”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,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.

IV. Private Intervention in Transnational Norm Diffusion

The three foregoing encounters between World Athletics and the norm of gender, as enshrined in various legal regimes, illustrate the process through which an international legal norm has been shaped by a private global governing body. These encounters highlight that legal challenges have been significant catalysts for reframing, more than reforming, approaches to regulating women's participation in World Athletics. In each encounter with the legal norm of gender equality, World Athletics acknowledged, for the first time, that the norm was relevant to the impugned regulatory practice, while simultaneously interpreting the new norm to align with the old practice. This process offers important insights into the multifaceted role of private organizations in norm development and diffusion, the type of interpretive mechanisms on which they rely, and the meanings-in-use that result.

A. Strategically Deployed Roles

This case study of World Athletics reveals that the creation, adoption, interpretation, resistance, and transmission of an international norm can be more intertwined, in the context of a single institutional actor, than most theories of norm diffusion recognize. While recent scholarship has come to recognize the “inherent dynamism” of international norms,³⁶³ distinctions are generally made between norm setters and norm followers,³⁶⁴ and the norm translators that operate in the middle,³⁶⁵ as well as between norm entrepreneurs and norm “antipreneurs,”³⁶⁶ and so on. World Athletics, however, has played all these roles, strategically and often simultaneously. The organization has shaped the meaning of gender equality by adopting the norm in name, while at the same time, defining it in ways that reinforce existing regulatory practices. Linking these practices to sub-norms that sound in gender equality—parity, balance, equal chances—has allowed World Athletics to dismantle the broader normative imperative, institutionalizing only those aspects that serve established interests. Attention to this dismantling or disaggregating process reveals that a given actor, particularly a private organization exercising transnational regulatory authority, cannot be understood simply as either a promoter or a resister of a norm; such an organization may contribute to the development a norm in much more nuanced ways.

The account offered in this Article reveals that such strategic shifting between roles is one way private international organizations intervene in the continual cycles of norm development that result from tensions between general rules and specific actions.³⁶⁷ Extra-institutional norms are not automatically and wholly transposed into a given institutional context.³⁶⁸ Rather, organizations “may work in permissive or obstructive ways” with respect to reform and innovation.³⁶⁹ Their particular features neither guarantee nor bar change, but rather serve as a “compass” for assessing reformative ideas.³⁷⁰ Moreover, because international norms are defined by their “meaning-in-use,”³⁷¹ the same norm can “come to mean radically different things” when combined with a particular pre-existing context.³⁷² However, the features and evolutionary patterns of organizations that are “not governed by or dependent directly on an overarching national state” are not well understood.³⁷³ Nor are the ways such organizations transform norms as they institutionalize them. As has been shown, World Athletics’ institutional “compass” prioritizes globality, monopoly, and autonomy—dimensions of authority that, unlike a state-based organization, it must actively assert in order to exist. One way of consolidating such authority is to adopt new normative justifications for impugned regulatory practices, as a way of warding off challenges to those practices in the same normative terms.

Understanding such strategic action as contributing to transnational norm development builds on, and connects, disparate theories about the development of legal norms in different organizational contexts—public and private, domestic and international. For instance, World Athletics’ institutionalization of gender equality roughly follows a pattern observed by scholars with respect to intergovernmental organizations, like the UN, whereby practices largely precede the broad normative concepts that later come to justify them.³⁷⁴ Broad normative concepts, like Rule of Law or Responsibility to Protect, therefore serve “as a means of rationalizing and integrating already-existing practices of executive rule.”³⁷⁵ In the case of World Athletics, rationalizing and integrating regulatory practices as not only permissible, but mandatory, pursuant to the norm of gender equality is precisely how this international norm has entered the organization, has been defined within the organization, and then transmitted around the world through a network of national federations. The move by international organizations, including private ones, to gather and frame discrete practices under the umbrella of a normative concept should therefore be understood as one way transnational norms are developed and diffused.

This chimes with Lauren Edelman's observation, in the U.S. context, that law is not just an “exogenous, coercive, downward force on organizations,” but rather is given meaning by the private organizations, particularly domestic corporations, that are meant to comply with it.³⁷⁶ According to Edelman, this is especially likely in the case of broad and ambiguous laws, such as those prohibiting discrimination.³⁷⁷ Organizations respond to such ambiguous laws by creating “symbolic structures that demonstrate attention to law while leaving room to maneuver in ways that often elevate business logic over legal ideals,” such that “[t]he symbol, in essence, becomes the law.”³⁷⁸ The guiding business logics, in the case of World Athletics, are globality, monopoly, and autonomy, while the crucial maneuver is simultaneous recognition and restriction of the legal ideal of gender equality to signal compliance, without significant regulatory reform. However, rather than adopt brand new regulatory approaches to symbolically mask non-compliance with the legal norm of gender equality, as Edelman describes, World Athletics has instead refined the meaning of gender equality in such a way that its longstanding and incrementally reformed approaches can plausibly be seen as not only compliant with, but proactively supportive of, this normative imperative.

In a similar vein, Catherine Weaver has observed that intergovernmental organizations, particularly the World Bank, “must appear responsive to environmental demands in order to survive,” which might require strategic hypocrisy or “decoupling,” that is, building gaps between theories adopted for symbolic purposes and theories that drive the organization's actual work.³⁷⁹ World Athletics fills the gap between its symbolic commitment to gender equality and its driving commitment to globality, monopoly, and autonomy with sub-norms—parity, balance, and equal chances—in order to avoid apparent hypocrisy. Tension between such “competing rationalities”³⁸⁰ is eased, or at least obscured, by interpreting the new rationality to align with the old ones. This not only shields the organization from the normative imperative of gender equality, but allows it use that norm as a sword to continue expanding its regulatory authority.

This approach is similar to what Melissa J. Durkee describes as “post hoc lawmaking” by private actors in the international sphere.³⁸¹ Durkee notes that private “interpretative entrepreneurship” is particularly significant in international law, since it lacks both courts with general jurisdiction and an overarching system of precedent.³⁸² There is therefore more room for private actors to develop the law by interpreting it, including by exploiting legal ambiguity, thus giving meaning to laws over time.³⁸³ In this way, interpretation functions as a tool of private power used to justify a particular approach and influence what is considered legal or illegal.³⁸⁴ World Athletics has had this opportunity each time the norm of gender equality, as enshrined in a particular legal regime, has been invoked against it. On one view, World Athletics has interpreted itself out of gender equality laws, but on another view, it has interpreted itself into its own definition of gender equality. In this way, the organization's private structure has allowed it to assert that its authority is legitimate and grounded in the normative imperative of gender equality, even as it evades the application of domestic and international laws enshrining this norm. The organization then diffuses its interpretation of the norm worldwide, through a private network of member federations.

This account of how World Athletics’ pursuit of authority has both motivated and conditioned its institutionalization of gender equality illustrates that private international organizations play a multifaceted role in transnational norm development and diffusion. The organization's ability to switch so quickly between norm resistor, norm adopter, norm interpreter, and norm transmitter can be attributed, at least in part, to its status as private global governing body—that is, as an unregulated regulator. It has carved out significant authority to make rules that apply worldwide, while not being directly subjected to legal oversight. In the brief moments when law, particularly the legal norm of gender equality, has been brought to bear on World Athletics, the organization has interpreted the norm as harmonious with its regulatory practices. But when gender equality so seamlessly aligns with the longstanding practices of a patriarchal organization, the norm ceases to be a catalyst for change and instead becomes an instrument for preserving the status quo. Making a norm aimed at social transformation synergistic with established power structures requires certain interpretative mechanisms, which are worth brief discussion.

B. Evasive Interpretative Mechanisms

How is World Athletics’ reframing of its regulatory practices as fulfillment of gender equality possible without significant reform? What facilitates the maneuver illustrated in each of the three encounters with law, whereby regulatory approaches initially intended to protect World Athletics from female contamination, were recharacterized as for the benefit women? This process of retrofitting the meaning of gender equality has been enabled by certain mechanisms, familiar to feminist, queer, and post-colonial theory. While these distinct theoretical traditions may sometimes operate in tension with one another, they can also operate in complementary ways.³⁸⁵ In particular, they are all broadly concerned with identifying and interrogating normative structures that (re)produce hierarchy and underlie oppression. Drawing on these theories helps reveal how World Athletics’ pursuit of global, monopolistic, and autonomous authority has been advanced by three mechanisms, which are commonly identified as weaknesses or tensions in efforts to advance gender equality or other feminist goals in the context of international law and governance.³⁸⁶ Each of these mechanisms—essentialism, cooptation, and depoliticization—dulls the transformative potential of such efforts.

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.”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.”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” women³⁸⁹—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.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.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.”³⁹² The frequent result is “the universalizing of elite women's experiences in international legal reforms.”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.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,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.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.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”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”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.”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.”⁴⁰¹ The effect of cooptation is to blunt or dilute transformative demands as they “become aligned with dominant institutional requirements.”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.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.”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.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.”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.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.”⁴⁰⁸ As a result, ‘gender’ becomes associated primarily with women, leaving men and masculinity unexamined, “as though they were somehow natural and immutable.”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.”⁴¹⁰ However, in this regard, failed technical solutions have justified more technical solutions.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.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”⁴¹³ contributes to the development of transnational legal norms.

C. Selectively Informed Results

In World Athletics, globality-as-essentialism, monopoly-as-cooptation, and autonomy-as-depoliticization have functioned as what Gina Heathcote describes as “conditions . . . imposed on feminist interventions,”⁴¹⁴ resulting in a particular institutionalized definition of gender equality. These three dimensions of authority “hold [the] institutional structure together and provide the ‘compass’ for the assessments of attempts at change.”⁴¹⁵ This compass has led World Athletics to adopt gender parity, gender balance, and gender equal chances, as constitutive sub-norms of gender equality. These understandings of the broader norm reflect the tendency of international institutions to “tame feminist ideas in translating them into institutional agendas.”⁴¹⁶ Such institutionalized feminism has also been described by Nancy Fraser as feminism's “uncanny double,”⁴¹⁷ and by Janet Halley as “governance feminism”⁴¹⁸—both distortions of feminist ideals as they become aligned with the systems of power they were intended to dismantle. The result is a “radically simplified” interpretation of gender equality.⁴¹⁹ Much of this simplification arises from regulatory reform that considers women as the sole subject of feminism,⁴²⁰ without capturing gender as a relational structure of power and subordination, produced and reproduced through international law and international organizations.⁴²¹ Mohanty described the results of such simplification as “rhetorical commitments to gender justice that actively erase corresponding commitments to social transformation.”⁴²²

In this general pattern of diluting transformative ideals, the role of private international organizations has been largely overlooked. As this Article has shown, the pursuit of private authority, the foundations of which differ from public authority, has led World Athletics to essentialize women, coopt rivals, and depoliticize sex, leaving unchallenged certain binary, hierarchical, and intersectional gender logics. This is not to suggest that there has been no significant change in World Athletics as gender equality has been institutionalized. It is to suggest, however, that the three limiting mechanisms discussed above support what Edward Said described as “flexible positional superiority,” whereby the relationship between the dominant class and subordinated class may vary without the former “ever losing . . . the relative upper hand.”⁴²³ Private power contributes to this phenomenon as it constructs the meaning of gender equality through discrete encounters with law.

In World Athletics, that constructed meaning—parity, balance, and equal chances—can be seen as the “simplification, selective incorporation and … sloganisation” of more transformative feminist ideas, which Hilary Charlesworth and Chrstine Chinkin warn can result from a “tinkering and muddle through approach” to reform, particularly when terms like gender equality are not clearly defined.⁴²⁴ This is precisely the case in World Athletics, where the broad norm of gender equality has been defined in an ad hoc manner, in response to disparate threats to the organization's authority. Each episode of norm diffusion has centered around a different regulatory practice, challenged with reference to a different body of law, at a different point in time. In responding to these challenges, World Athletics has played a role in shaping “which feminist knowledge is drawn on to construct international legal developments and which feminist knowledge remains on the peripheries of global governance.”⁴²⁵ In this regard, the foundations of its private authority have set “the parameters of what action is possible and intelligible.”⁴²⁶

Notably, institutionalization itself can work against the transformative potential of a norm like gender equality, rendering it “static and unable to see new forms of violence and oppression.”⁴²⁷ Accounts of norm diffusion should be attuned to this type of paradox, which plays out in particular ways when private regulatory authority is at play, as both a motivating and conditioning force on change. According to Charlesworth and Chinkin, reviving transformative conceptions of equality in intergovernmental organizations depends on support and engagement from communities outside the organization.⁴²⁸ However, this is a particular challenge in the context of a private international organization like World Athletics, which seeks to insulate its regulatory decision making from outside communities, as a means of protecting its own authority.

V. Conclusion

At a moment of profound debate about sex and gender, as well as about discrimination and affirmative action, World Athletics purports that gender equality, as a normative commitment, mandates a particular approach to regulating eligibility for the female category of track and field competition. It describes its regulatory approaches to structuring its competition program and its governance structure as driven by the same normative imperative. Regardless of how one might assess World Athletics’ regulatory practices, this Article has shown that the organization's decision making, across all three areas discussed, has been driven first and foremost by its pursuit of global, monopolistic, and autonomous authority. The current president of the organization is insistent that World Athletics and other international sport federations should assert their “primacy in setting rules, regulations and policies that are in the best interest of its sport.”⁴²⁹ However, the organization's leadership, and its internal regulatory dynamics, have never meaningfully included or been responsive to the constituencies—whether female long distance runners, members of the Women's Committee, or athletes with differences of sex development—that have invoked the legal norm of gender equality as a basis for regulatory change. Instead, the norm of gender equality has been retroactively applied to justify regulations designed for other purposes. Retrofitting gender equality in this manner has entailed diluting the transformative potential of the norm through the mechanisms of essentialism, cooptation, and depoliticization.

Although World Athletics seeks to carve out a worldwide, exclusive, and self-governed sphere of authority, the boundaries of this sphere are somewhat porous. Not only have the organization's interactions with various legal regimes forced the organization to give gender equality some normative content, certain aspects of World Athletics’ interpretation of this norm have been diffused back out to other legal contexts. This Article opened with some domestic examples, where World Athletics’ female eligibility regulations have been cited in litigation or deferred to in legislative processes. The same regulations feature also in ongoing international debates. For instance, the UN special rapporteur on violence against women and girls has characterized World Athletics’ female eligibility regulations as a necessary response to “increased encroachment on female-only spaces in sports,”⁴³⁰ whereas the UN special rapporteur in the field of cultural rights has joined the above-mentioned UN Special Procedures, UN Human Rights Council, UN High Commissioner for Human Rights, World Medical Association, Human Rights Watch, and other NGOs in opposing the same regulations, which they say contravene human rights law.⁴³¹ Meanwhile, World Athletics has joined the UNESCO Group of Friends for Sport and Gender Equality, contributing to its recently released guidelines aimed at translating relevant international policy frameworks into action, as requested by sports ministers from around the world.⁴³² Notably, these guidelines, do not mention the issue of female eligibility in their policy recommendations, thus deferring to international sport governing bodies, like World Athletics, on this matter.

Taking a step back, it is clear that the meaning of gender equality is developed by a range of actors—public and private, domestic and international. Norms flows between these actors are complex and multi-directional, often drawing from more general legal frameworks that enshrine gender equality as a normative imperative. In this context, private sport governing bodies exercise substantial, and largely unchecked, authority. They carve out this authority in different ways than do states or intergovernmental organizations. Attention to the foundational dimensions of private regulatory authority therefore offers a new way of studying transnational norm development and diffusion—a way that can capture how private interests shape the meaning of even fundamental human rights norms.

While private regulatory organizations often produce and diffuse norms specific to their particular realm (be it sport, banking, internet domains, food safety, or otherwise), they may also give meaning to more general norms that are enshrined and contested in legal jurisdictions around the world. One way to better understand how legal norms are developed and diffused transnationally is to recognize private international organizations as potential conduits of public international law norms and, further, to identify the private interests that shape the development of these norms as they move through such organizations. Global norm diffusion may sometimes be tailored more to the requisites of private regulatory authority than to the requisites of a vaguely defined law assumed to restrain the exercise of that authority. Therefore, the development, and potential dilution, of global norms cannot be understood without accounting for the intervening interests of private international organizations. There are many reasons to be concerned about the accountability of private international organizations, and their influence on the meaning, and utility, of human rights norms is an important one.