The rise of Dutee Chand, India’s 100 and 200-meter champion
in the under 18-category, was astonishing. Her achievements were more than
promising: after only two years, she broke the 100m and 200m national junior
records, competed in the 100m final at the World Youth Athletics Championships
in Donetsk and collected two gold medals in the Asian Junior Championships in
Chinese Taipei. But, in July 2014, this steady rise was abruptly halted.
Following a request from the Athletics Federation of India (AFI), the Sports
Authority of India (SAI) conducted blood tests on the Indian sprinters. Dutee
was detected with female hyperandrogenism, i.e a condition where the female
body produces high levels of testosterone. As a result, a few days before the
Commonwealth Games in Glasgow, the AFI declared Dutee
ineligible to compete under the IAAF Regulations and prevented her from competing in future national and
international events in the female category. Pursuant to the IAAF
‘Hyperandrogenism Policy’, the AFI would allow Dutee to return to competition
only if she lowers her testosterone level beneath the male range by means of
medical or surgical treatment.[1]
On 25 September 2014, Dutee filed an appeal before
the CAS, seeking to
overturn the AFI’s decision and declare IAAF and IOC’s hyperandrogenism
regulations null and void. She is defending her right to compete the way she
actually is: a woman with high levels of testosterone. Interestingly enough,
albeit a respondent, AFI supports her case.
IAAF and IOC rules set limits to female
hyperandrogenism, which is deemed an unfair advantage that erodes female sports
integrity. While these rules have been contested with regard to their scientific and ethical aspects, this is the first time
that they will be debated in court. This appeal could have far-reaching
ramifications for the sports world. It does not only seek to pave the way for a
better ‘deal’ for female athletes with hyperandrogenism, who are coerced into
hormonal treatment and even surgeries to ‘normalise’ themselves as women[2],
but it rather brings the CAS, for the first time, before the thorny question:
How to strike a
right balance between the core principle of ‘fair play’ and norms of
non-discrimination, in cases where a determination of who qualifies as a ‘woman’
for the purposes of sport has to be made?
‘Prove your
gender!’
The separation between women and men in athletic
competitions has been paradigmatic. Considering the sex-based physiological
differences, which in case of a mixed competition would lead to virtually no
women participation, the separation opened the door for women to compete at the
highest levels. Nevertheless, the determination on the eligibility of women
athletes to participate in the female category has become a source of
controversies. So far, as decades of flawed IOC policies have demonstrated, it
has not been clarified ‘who is woman’ for the purposes of sport.
The idea of ‘sex testing’ in sports dates back to 1960s and even
preceded doping tests. The first gender test introduced by the IOC is nowadays laughable:
nude parades of female competitors before a panel of judges in charge to verify
the presence of female genitals and other sex characteristics.[3]
Soon, this test was proven unworkable, since in intersex conditions, where
people are born with both male and female genitalia, the outside did not match
the inside.
The next test introduced was dubbed ‘chromosome testing’,
which was based on the assumption that chromosomes are the key factor in
determining sex, i.e. XY for male and XX for female. However, this test overlooked
natural situations, where males have an extra X chromosome or females are
missing one and was, therefore, soon abandoned. Thereafter, the SRY (i.e. the
gene that triggers male sex determination) gene detection test was introduced,
but the Olympics Games in Atlanta 1996 proved its deficiency: eight women were tested positive for it and
all were finally cleared for competition. Following this series of gender policies, which were deemed
particularly discriminatory towards women with sexual development disorders,
the IOC removed gender verification tests in June 1999.
It was not before 2009, in the wake of the Caster Semenya case, involving the South
African 800m and 1500m runner and world champion, that an urgent need for
reconsidering sex determination policies was brought into surface. Semenya’s
masculine appearance, unusual muscle build and, foremost, her outstanding
victory in the 2009 World Championships 800m race, fuelled a frenzy of suspicions
on her gender. Following
her victory, in an unprecedented breach of confidentiality and privacy rules, the
IAAF leaked that Semenya had undergone tests to determine whether she had an
unfair advantage as compared with other women. For three years, Semenya was not
allowed to participate in events as her gender was still under investigation.
In 2012, she was cleared by the gender testing committee and she began racing
again. The story of Semenya, who suffered from humiliation and castigation by
athletics officials and the media, unveiled IAAF’s incompetency in
handling complex gender-related issues.
As a reply, in an attempt to establish an unambiguous,
objective and scientifically based policy, IAAF and IOC, in 2011 and 2012
respectively, released new regulations. In that context, the focus shifted from
sex testing to endogenous testosterone testing. The natural levels of
testosterone have become the new golden rule: the purpose is not to determine
‘who is woman’, but rather ‘what makes a woman a woman’. Both policies are
based on the assumption that testosterone is a key factor for men’s often
superior strength and speed and, as a result, women with testosterone levels
typical for males have an ‘unfair’ advantage. Therefore, according to the new
regulations, if a female athlete has androgen levels higher than the normal
male range, she is deemed ineligible to compete in women’s competition and will
only be considered able to compete again if she lowers her testosterone level
by means of medical or surgical treatment.
Despite IAAF’s protest to the contrary, this is the recent re-incarnation
of ‘sex testing’.[4]
The real import of these rules has been illustrated by the Dutee’s case. With Dutee’s appeal pending before the CAS, the legality
of IAAF and IOC’s current gender policy needs to be scrutinized.
The unfair
results of ‘fairness in sports’: The dark side of IAAF’s and IOC’s gender
policy
Fair competition, which provides a fair opportunity to
compete and prohibits athletes from competing with unfair advantages, has been
widely accepted as a value integral to sports.[5]
In this light, considering hyperandrogenism as an uncommon athletic capacity in
relation to other female competitors, IAAF and IOC introduced the ineligibility
of female athletes with hyperandrogenism in order to preserve the ‘sacrosanct’
competitive equality in the female category. However, it is our opinion that
the current policy is on the borderline of what is fair for the following
reasons:
1. The ‘testosterone’ criterion as
yardstick to determine eligibility?
According to the IAAF androgen policy, a general scientific
consensus on naturally occurring testosterone as a relevant physical
characteristic to separate athletes into different competition classes exists.
The first problem is that this argument relies on the flawed assumption that a
bright line between male and female can be drawn, not acknowledging situations
of an ‘intersex’ status. As David Epstein, reporter
and author of “The Sports Gene”, puts it clearly “neither body parts nor for the
chromosome within them unequivocally differentiate male from female athletes”. Furthermore, while IAAF relies
on a binary perception of biological sex in order to identify the gender of
athletes, gender, in fact, is a social construction, which does not correspond to
the complexities of biological sex. Secondly, it relies on the assumption that
testosterone levels in the human body have limited variability within the sexes.
Nevertheless, recent studies have found a complete overlap
between testosterone levels in elite men and women, ripping apart testosterone
levels as a reliable factor for separating between sexes. The third problem is the lack of supporting
scientific evidence that a competitive advantage can derive from high natural
levels of testosterone.[6]
Indeed, the scientific understanding of testosterone receptors is far from comprehensive.
A recent research supported by the Swiss WADA
laboratory added to the uncertainty: “Unfortunately, and to the best of our
knowledge, there are neither available data on serum androgen levels nor
reliable statistics on the so-called hyperandrogenism among a large and
high-level female athletes’ population”.
IAAF policy, in overall, seems to create an absurd result:
instead of introducing an objective criterion-if any- for separating between
men and women, it rather suggests a classification of athletes between ‘high
testosterone’ and ‘low testosterone’. However, ‘High-T’ and ‘Low-T’ categories
of competition are not on the agenda.
2. IAAF policy fosters
discrimination
The current policy suggests a discriminatory treatment: it
targets only women suspected for hyperandrogenism due to their physical
appearance and high levels of performance. Women are asked to prove that they
are female, while there is no such a requirement or restriction for men.
Furthermore, the fundament itself of the androgen policy is
discriminatory against women who do not conform to traditional notions of
femininity. Indeed, it lays on the physiological superiority of men in terms of
endurance and strength as compared to women, perpetuating the long-established
perception that an intrinsic link between manliness and sport exists, while femininity
is associated with more gentle exercise.[7]
In IAAF’s view, ‘too masculine women’ do not belong to the female category. It
seems that under a scientifically based guise, IAAF seeks to impose a
preference for certain social norms regarding what constitutes femininity in a
woman’s appearance as criteria for participation.[8]
However, in order to perceive the level of discrimination,
the most important question to be addressed is how you qualify an athlete. Hyperandrogenism
is a rare biological characteristic and according to IAAF regulations and
controversial scientific evidence, it gives female athletes a natural advantage
that other female athletes do not have. Similarly, long limbs, broad wingspan for
swimmers and height for basketball players are natural advantages.[9]
Nevertheless, the later ones, but for hyperandrogenism, have never been
considered as unfair. Indeed, the quintessence of elite sports lays on the
participation of individuals with rare biological characteristics. In this
light, the inevitable question arises: Why should female athletes like Dutee be
obliged to reduce or eliminate an inherent advantage that they are born with? Why
is then nobody asking a swimmer like Phelps to operate his
double-jointed ankles?
Or as SAI director-general Juji Thomson remarked: “ Just because
Usain Bolt's height is to his advantage will the international authorities want
his legs chopped off to ensure a level-playing field?” In other words, why
hyperandrogenism has been viewed as different to other biological advantages
broadly accepted in some elite athletes? The answer is simple: IAAF’s policy
reflects the well-established public perception of femininity and female
athletes who do not conform to this norm have to be excluded or ‘feminise’
themselves.
Thereby, IAAF and IOC policy exacerbate bullying and
marginalization of women in sports putting their physical difference under
unethical and humiliating scrutiny. Semenya had been intruded into the toilets
by competitors seeking to check whether she really was a girl. While, after a race
in Berlin, her competitor Mariya Savinova sneered “just
look at her” when she was asked whether Semenya was a man. Similarly, the most talented
female athletes, such as Serena Williams, Martina Navratilova, WNBA player Brittney Griner– and the catalogue is really
long-, have been accused of not really being female. This play is up again with
IAAF’s ‘are you woman enough to compete as female?’ policy seeking to confer
legality to discrimination.
What should not be overlooked, finally, is the bitter truth
that the current IAAF policy inevitably targets in priority women from
developing countries. Athletes like Semenya or Dutee never perceived their
difference, until they appeared on track field courts, where this difference
has been flagged in the most humiliating way as abnormality. In sharp contrast
to IOC’s declarations on
eliminating any kind of discrimination in sports, IAAF and IOC gender policy achieves the most undesirable
result: sex and social discrimination ‘all-in-one’.
3. The disproportionate results of
IAAF’s policy: To undergo treatment or not? This is not a question!
Female athletes with hyperandrogenism are faced with two
choices: undergo medical treatment to fit the IAAF ‘Procrustean bed’ or abandon
female competitions. The disproportionate and unfair consequences are evident.
As Katrina Karkazis, pioneer of
Dutee’s motion against IAAF,
remarks, the IAAF and IOC treat a physical difference as an illness, which
requires a medical response. However, the necessity of such an invasive medical,
or surgical, intervention is highly questionable. The suggested treatment does
not stop at lowering female athletes’ testosterone level below IAAF’s limit of
10nmol/liter, but it rather aims to eliminate hyperandrogenism. In this sense,
sharing IAAF’s assumption that testosterone is the key to performance, such
treatment will render athletes like Dutee less competitive than other women who
do not have hyperandrogenism or whose hyperandrogenism is below the cut-off.
Thereby, IAAF policy, albeit mandating fairness in competition, puts a
disproportionate burden on female athletes with hyperandrogenism.
Furthermore, concerns have been raised about the medical effects
of the treatment suggested. In fact, it has been argued that long-term hormone
therapy can have devastating results on female athletes’ health. Dutee’s denial
to undergo this treatment is far from a ‘caprice’. A study published in 2013
revealed the cases of four female athletes identified as having
hyperandrogenism, who were sent to a clinic in France. It was reported that those
athletes also had medical procedures that had nothing to do with lowering their
testosterone levels for sports: a reduction to the size of their clitorises,
feminizing plastic surgery and oestrogen
replacement therapy. It
seems that the IAAF is pulling the trigger on female athletes’ head, who are
ready to accept any treatment- even the most questionable ones- in order to
keep competing.
On the other hand, the ineligibility sanction leads to a
further disproportionate result: If Dutee is considered too masculine to
compete in the female category, does she qualify for the male category? Can the
mere presence of higher testosterone levels in a female athlete’s body presume
that she can compete as a man? The answer has to be answered in negative,
notwithstanding the ‘fair play’ issues that may arise. IAAF and IOC rules are
cruelly disproportionate: athletes like Dutee who refuse to undergo this
questionable treatment are effectively left without a forum to display their talent.
Do it like
Pistorius
So far, the IAAF and IOC policy have been shown
scientifically shaky, discriminatory and disproportionate. In parallel with
these arguments, Dutee has also a very important precedent to rely upon: the CAS ruling in the Pistorius case.
In 2008, Oscar Pistorius, the South African double amputee
runner, challenged IAAF rules that prohibited competitive running on ‘cheetah’
legs in international IAAF-sanctioned events alongside able-bodied athlete as
being in breach of its commitment to non-discrimination. In that case, the
fundamental rights of disabled athletes to be adequately accommodated and have
genuinely equal opportunity to compete were at issue. Pistorius had to prove
that he gained no advantage from using the prostheses. Reviewing scientific
testing and analysis, the CAS concluded that ‘Cheetah’ legs did not give
Pistorius an overall advantage.
Although the ‘tailor-made’ effect of the award could raise serious
criticism[10],
the Pistorius case has been landmark
from a twofold point of view. Firstly, the CAS did not hesitate to challenge
the indeterminacy of scientific analysis and developed the ‘net advantage’
approach, which stipulates that both the benefits and burdens have to be taken
into consideration in determining whether a device provides an advantage to an
athlete who uses it.[11]
A similar approach has been adopted in the Veerpalu doping case, where the CAS
questioned the scientific reliability of the limits applied for the WADA human
growth hormone test (HGH).[12]
Pistorius and Veerpalu cases have set an important threshold: international
sports governing bodies, when it comes to enforce scientific- related
sanctions, should rely on scientifically well-founded assessments.
Secondly, the CAS took an extraordinary step. It sent a
clear message to international federations that they must address the
eligibility criteria surrounding disabled athletes in a transparent and
impartial manner.[13]
There is no reason why the CAS in the Dutee case would do it differently. After
all, sporting rules that seek to ensure fair competition and prevent a
competitor from obtaining an unfair advantage have at least to be proportionate
and non-discriminatory.
Let Dutee Run?
The lines between male and female are blurring. As
Fausto-Sterling has observed “the reason sports federations can’t get this
right is because there is no right”.[14]
Sports governing bodies may never be able to ensure fair competition without
reaching absurd results.[15]
In its daunting task to legally enforce controversial science related and
ethical issues, CAS is facing a double challenge. It has the opportunity to set
fair and accurate eligibility rules based on objective criteria, which will
also preserve the essence of sports. Undoubtedly, sports governing bodies have
the authority to establish their eligibility rules. However, self-regulation
does not come without limits: sports federations’ rules have to comply with the
non-discrimination clauses included in their statutes[16]
and the IOC charter. The role of the CAS in
monitoring the compliance of these regulations with non-discrimination norms is
essential. Therefore, in some cases, CAS has to leave its ‘comfort-zone’: it has
to deviate from its well-established practice to provide a significant degree
of deference to sports governing bodies with regard to their authority to
establish the eligibility rules and rather applies a ‘fairness’ requirement on
a case-by-case basis, such as in the Pistorius
case.
More importantly, CAS has the chance to finally flesh out
the toothless IAAF and IOC commitments to gender equality. Dutee’s case is a
fertile ground for an interpretation in the light and purpose of the recent UN resolution on sport and the proclaimed
values underpinning the Olympic 2020 Agenda. After all, what is the point
of trumpeting non-discrimination in sports, if, in 2014, a female athlete is
deemed ‘not woman enough’ to compete with women?
Whatever the CAS decides, one thing remains certain: discrimination
against women with sexual development specificities will not anymore be in the
blind spot of the law. Dutee showed the way.
[1] IAAF
Regulations Governing Eligibility of Females with Hyperandrogenism to Compete
in Women’s Competition - In force as from 1st May 2011 , Article 6.8 <http://www.iaaf.org/about-iaaf/documents/medical >
[2] Dr Ben Koh, Daryl
Adair and Peter Sonksen OBE,
‘Testosterone, sex and gender differentiation in sport – where science and
sports law meet’ (14 October 2014) <http://www.lawinsport.com/articles/item/testosterone-sex-and-gender-differentiation-in-sport-where-science-and-sports-law-meet>
[3] J Ellison, ‘Caster Semenya And The IOC’s
Olympics Gender Bender’ (26 July 2012)
<http://www.thedailybeast.com/articles/2012/07/26/caster-semenya-and-the-ioc-s-olympics-gender-bender.html>
[4] R Pielke,
‘Dutee Chand, science and the spirit
of sport: why IAAF policy is deeply flawed’ (20 October 2014)
<http://www.sportingintelligence.com/2014/10/20/dutee-chand-science-and-the-spirit-of-sport-why-iaaf-policy-is-deeply-flawed-201001/>
[5] P Zettler, ‘Is
It Cheating to Use the Cheetahs? The Implications of Technologically Innovative
Prostheses for Sports Values and Rules’ (2009) 27 Boston University
International Law Journal, 389.
[6] M Naimark, ‘A
New Study Supports Female Athletes Unfairly Excluded From Sport’ (12 September
2014)
<http://www.slate.com/blogs/outward/2014/09/12/sex_verification_in_sports_a_new_study_supports_unfairly_excluded_female.html>
[7] Dr Ben Koh,Daryl Adair and Peter Sonksen OBE (n 2)
[8] R Pielke
(n 4)
[9] For a very interesting comparison of the physiques
between athletes from a wide range of different sports and competitions, see Howard Schatz’s Athlete series.
[10] CAS 2008/A/1480
Pistorius v/ IAAF (16 May 2008), para 56.
[11] CAS 2008/A/1480 Pistorius v/ IAAF (16 May 2008), para 36.
[12] M Viret and E Wisnosky, ‘Sinkewitz v. Veerpalu:
Struggling to fit anti-doping science into a legal framework’ (19 March 2014)
< http://wadc-commentary.com/wp-content/uploads/2014/04/WADC_COMMENTARY_Sinkewitz-Blog.pdf>
[13] Cornelius, 236
[14] J Ellison (n 3).
[15] P Zettler (n
5), 394.
[16] For instance, IAAF Constitution 2011, Art 3: “The
Objects of IAAF are (…) 4. 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.”