The IAAF in a fix

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)