The Court of
Arbitration for Sport (CAS) has set aside the hyperandrogenism regulations of
the International Assocation of Athletics Federations (IAAF) for two years,
paving the way for Indian sprinter Dutee Chand’s participation in national and
international events.
In a landmark
verdict made available to the media on July 27, a three-member panel of the CAS
ruled that the IAAF needed to bring in more scientific evidence to prove the
quantitative advantage an athlete with higher androgen levels would gain if the
rule was to be held valid.
Otherwise, the
rule would become void at the end of the two-year period. The IAAF can submit
evidence at any time during the two-year period for the CAS to review the
situation and advise the athlete and re-open the case. The IAAF would also have
the prerogative to drop the rule altogether.
The IAAF has a
huge task ahead of it in case it plans to bring in scientific evidence to meet
the specific requirements outlined by the CAS order.
The fundamental
argument in the CAS ruling is even though there is a scientific basis in the
use of testosterone as a marker for the purpose of differentiating male and
female categories in sports, the panel was not satisfied that there was enough
scientific data to justify the difference within the female division on the
basis of hyperandrogenism or to ban athletes altogether from competition
because of hyperandrogenism.
Degree of competitive advantage
“Once the degree
of competitive advantage is established the IAAF would then need to consider if
the degree of advantage were well below 12%, whether that justified excluding
women with that advantage from the female category”, the CAS panel said in its
order.
Since the IAAF
had argued that the approximate competitive advantage between male and female
would be around 10-12%, the CAS wants it to prove that in case a female reached
a testosterone level exceeding 10nmol/L (cut-off prescribed by IAAF
Hyperandrogenism regulations) which was supposed to be the lowest male range,
then such females would have that 10-12% advantage rather than 1% which in its
opinion would be negligible.
On the face of
it, this looks an almost impossible task, given the two-year time-frame to
achieve the target and the limitations imposed by ethical issues that will
prevent a study in which female athletes are injected with testosterone and
their performance evaluated.
The Caster Semenya example
Women’s athletic
performances are hardly ever comparable to that of men. Take the case of Caster
Semenya, the South African girl who had to sit out almost a year in 2009-2010 because
of a gender controversy that eventually led to the formulation of the current
regulations that now stand stayed.
Semenya timed
1:55.45 for the 800m gold in the Berlin World Championships in 2009, at the age
of 18, a time that was 26th on the all-time lists (still is) and which has not
been bettered in the world since.
We don’t know
what happened between 2012 when she had the London Olympics silver (1:57.23),
and 2013 when her best happened to be 1:58.92. Was there hormone therapy to
suppress her higher androgen levels? The IAAF has not disclosed any details regarding any therapy since it does not do so in any of such instances. Whether because of any follow-up measures taken by the IAAF or because of any lay-off or lack of interest leading to subsequent drop in form, Semenya's best slipped to 1:58.92 in 2013, in 2014 it was 2:02.66 and this year it is 2:04.19.
In 2009 she was
the No. 1 athlete in women’s 800m. In 2011 second, 2012 fourth and 2013 10th.
This year she is no better than 211th in the world lists! India’s Tintu Luka is
currently 69th in the season lists with 2:01.53.
Can we say in
Semenya’s case that there evidently has been a remarkable advantage because of
her hyperandrogenism (to give it the latest terminology rather than the then
prevalent one of ‘gender’ which today is taboo)? Looking at those timings, it could be said her best had come immediately prior to the time she was suspended following an IAAF 'gender' investigation..
Yet, when those
timings are compared to the men’s 800m the difference is huge, irrespective of
what levels of testosterone the male runners might have had. A timing of
1:51.99 by a male runner in 2009 could find only the 1362nd place in the world
lists compared to the top spot that Semenya enjoyed with her National record of
1:55.45 in Berlin. The next best among women that year was 1:57.84 by Maggie
Vessey of the USA.
What the IAAF
could probably do, among other things, could be re-analyze the data obtained
from the Daegu World Championships in 2011, co-relate the performances to
testosterone levels and prepare a fresh document in defence of its argument.
The panel did suggest that this was a route worth probing.
It doesn’t look
at this stage whether the IAAF could be having options to bring forward fresh
scientific evidence to satisfy the conditions that CAS has laid down.
Dr. Stephane
Bermon, one of the IAAF experts, who deposed before the panel disclosed that he
was asked by Prof Martin Ritzen, another IAAF expert, to undertake such a study
of the Daegu data but he said that it would require collating a wide range of
data within narrow limits and on an event-by-event basis.
Normally, in any
of the hyperandrogenism cases it is impossible to see a difference matching the
male advantage over female, but the advantage over a competitor in the female
category is pronounced. Even a one per cent advantage should give an athlete
with acknowledged hyperandrogenism a considerable advantage in a sport where
hundredth of a second, even thousandth of second at times, decides medal
placings.
The’ tall and short’ argument
Is not a "marginal advantage" that might be derived by a female having hyperandrogenism
comparable to several other physical traits that have been proven to confer
performance advantage to athlete? Dr Richard Holt, who was an expert witness
for Dutee Chand listed the following in his report that was part of the athlete’s
appeal: (i) an inherited genetic defect in the EPO receptor,
which results in high haemoglobin levels; (ii) tall stature, which offers
advantages in a number of sports such as basketball and rowing; (iii) short
stature, which offers an advantage in power-lifting and weight-lifting; (iv)
low body mass index, which is advantageous for long-distance running and cross-country
skiing; and (v) high lung capacity and large hands and feet, which are advantageous
in swimming.
At least one expert who appeared for the IAAF
admitted that there could be classification based on several factors in future,
but the current issue was a broad classification between male and female and
the effects of hyperandrogenism in females that gave them advantage over fellow
competitors.
No ‘super male’ category
Why not a testosterone-level determination for
males? This was another question that the athlete and her expert witnesses
raised. The IAAF side answered that the attempt had always been to have two
basic categories, male and female and not a third category named ‘super male’.
The Dutee Chand case has been projected in some
quarters as though this was the first in the IAAF hyperandrogenism (gender) regulations
in media reports and comments made by experts and sympathisers. It is not.
No one has talked about 30-odd cases that the IAAF
had handled or had been handling since the introduction of the hyperandrogenism
regulations in 2011. They haven’t simply because no one knew about these cases;
there could only be some speculation in recent years. Strict confidentiality had
been maintained by the IAAF in these cases.
In Dutee’s case the ‘leaks’ eventually proved
beneficial to the athlete and it may actually prove beneficial to all other
athletes who are either under some “corrective” procedures or have decided to
retire.
Some of the 30-plus cases that had been reported so
far have been resolved through the athletes undergoing therapy, a few others
have apparently dropped out of competition and some more were still unresolved. Those who might yet be unsure of hormone therapy or surgery as possible courses to adopt in an effort to come back into the mainstream can drop everything and return. Those who might have retired can consider a comeback sooner than later provided age is on their side.
Since the 1960s the IAAF has followed some policy or
the other to distinguish abnormalities in ‘gender’ classification. Since the
words ‘gender’ and ‘sex’ were completely removed from a new policy adopted in
2011 (hyperandrogenism policy), people generally started wondering how there
could be a rule that could discriminate against women who had elevated
testosterone levels. No one among the public could be bothered about how
those elevated levels could have come.
Discrimination
CAS accepted that prima facie there was ‘discrimination’
especially when male athletes were not required to undergo any test.
“The Athlete contended, and the IAAF did not submit
to the contrary, that the IOC Charter, the IAAF Constitution and the laws of
Monaco all provide that there shall not be discrimination and that these
provisions are higher-ranking rules that prevail.Accordingly, unless the
Hyperandrogenism Regulations are necessary, reasonable and proportionate, they
will be invalid as inconsistent with the IOC Charter, the IAAF Constitution and
the laws of Monaco.”
The above argument which CAS
accepted formed the basis on which the panel asked IAFF to provide fresh
scientific support to establish its contention that higher androgen levels did
provide substantial advantage to such female athletes against athletes having “normal”
androgen levels and exclusion of such athletes was a proportionate measure for
the fair conduct of the sport.
No clamour for male classification
As for the argument about male
athletes not being classified as per their testosterone levels, Prof Thomas
Murray, chairman of the WADA Ethics Panel, and senior academic in the field of
bioethics, commented that the “complete lack of clamour for separate
competitions according to testosterone levels” meant that the discrimination
argument was not made out in the male category.
In any event, since the purpose
of the Hyperandrogenism Regulations is to protect women from having to compete
against athletes with the hormonal advantages of men, Prof Murray said it was
difficult to see how equal treatment required an analogous policy to protect
men competing against other men.
The panel heard arguments about
the effects of exogenous (outside) and endogenous testosterone with the IAAF
experts arguing that there was no differentiation as far as the human body
reacted to it. The athlete and her experts differed. There was also argument
about the IAAF cut-off for testosterone in a female athlete at 10nmol/L.
The normal range
According to the IAAF, the data from
the World Championships in Daegu (2011) and Moscow (2013) showed that under resting conditions, the normal range of
testosterone levels in elite female athletes is the same as the range found in
the general population (i.e. between 0.1 and 3.08 nmol/L).
The IAAF said it was not aware of
any data which showed that a non-doped female athlete with normal gonadal and
adrenal function could come anywhere close to reaching serum levels of
testosterone of 10 nmol/L.
The athlete argued through her
lawyers that the data showed complete ‘overlap’ of male and female values,
something that formed the basis for the argument by the experts on her side.
There was near unanimity among
experts that lean body mass (LBM) determined the enhanced performance of the
male athlete over the female. There was no unanimity however whether testosterone
was the clinching factor in contributing to the LBM.
Everyone seemed to agree that a variety
of factors including training, nutrition, social backgrounds etc contributed to
athletic performance just as testosterone and LBM did. There were divergent
views as to the role played by testosterone.
Could we be heading for ‘mixed
competitions’ involving male and female athletes? Or can there be a third
division for transgender athletes?
Radcliffe’s views
Paula Radcliffe, the world
marathon record holder, said that it would be unfair to have a mixed
competition since she felt men would always win.
The celebrated British athlete, winner of multiple world titles including the 2005 World Championship marathon, who deposed in support of the IAAF, said that the hyperandrogenism regulations
were concerned with preserving fair and meaningful competition based on what
was fair from a sporting perspective. She said elevated testosterone levels
made the competition unequal in a way greater than simple natural talent and
dedication.
For the moment Dutee Chand is
rejoicing as she should. The Sports Ministry is elated that a successful
campaign has ended since it supported the athlete’s appeal. The AFI seems to have come unscathed in an appeal in which it was the first respondent but chose not to be represented! The crunch will
come for the likes of Tintu Luka and others in the 800 metres when the Rio
Olympics arrive. And possibly well after that also unless the IAAF goes back to its old rule and defends it in court! The 800m in particular has been
susceptible to the vagaries of hyperandrogenism among female athletes through several decades.(amended July 30, 2015)
