Biological sex is becoming irrelevant in this debate about T-level and athletic ability

She is celebrated as South Africa’s “golden girl”. But Olympic champion Caster Semenya is now pushing the sports world to potentially dash through a challenging hurdles’ course peppered with issues of gender, hormones and performance.

Amid the raging controversy over new eligibility regulations for female classification introduced by the International Association of Athletics Federations (IAAF), the basic question of who is a male or female is becoming increasingly irrelevant.

e IAAF regulations for athletes with differences of sex development. AP

The IAAF regulations for athletes with differences of sex development (DSD) have been challenged by middle-distance runner Semenya, a two-time Olympic champion in the 800 metres, in the Court of Arbitration for Sport (CAS). The Lausanne (Switzerland)-based court is an international quasi-judicial organisation that deals with disputes within sports, mainly anti-doping matters, athletes’ rights, commercial disputes and eligibility issues.

The DSD rules are the extension of the IAAF hyperandrogenism regulations that were set aside by CAS in July 2015 when Indian sprinter Dutee Chand questioned her ban from athletics because of her higher testosterone levels. The CAS, while staying the rules, gave the IAAF two years to bring forward evidence that female athletes would gain an advantage of 10-12 per cent over their rivals because of the extra testosterone in their bodies. Otherwise, it seemed to agree, it would be similar to other natural advantages that athletes gain because of long limbs or broad feet.

Hyperandrogenism is a medical condition that sees disproportionate levels of androgens, or male sex hormones such as testosterone, in the female body and the associated effects.

Advantage is not what CAS is looking for

Instead of going back to the CAS panel with its modified rules, the IAAF brought in an entirely different set of rules based on research done by scientists engaged by it. These were scheduled to be effective from November last year but kept in abeyance following the Semenya appeal to CAS. The IAAF research has not been able to show the 10 per cent advantage that CAS talked about, and only at much lower levels.

If Semenya prevails, as several activists and many observers hope would be the case, there could be another attempt by sports organisations to bring some other regulations or even suggest a third category for transgender or transsexual or inter-sex athletes. All Olympic sports are dependent on the International Olympic Committee (IOC) laying down regulations and the organisation is waiting for the Semenya case to be resolved.

Semenya, 28, looks unbeatable over 800m today and she is gradually gaining the same superiority over the 1,500m. Following the stay of the hyperandrogenism regulations, Semenya has clocked national records of 1:55.28 (2016), 1:55.16 (2017) and 1:54.25 (2018). Previously, the runner had clocked a sub-1:56 in the 2009 World Championships, winning in 1:55.45.

Semenya was apparently asked to undergo hormone therapy to reduce testosterone levels after the 2009 World championships. The South African slowed down considerably till receiving a boost from the Dutee Chand ruling in 2015. If there is a classic example of how much additional testosterone would matter to a female athlete, all that is required for anyone is to study Semenya’s timings.

The efforts of the IAAF and of the IOC to devise a method that would not be intrusive and would be based on scientific principles to determine eligibility rules for females have met with more opposition today than there was in the 1990s. The pro-Semenya lobby does not agree that testosterone is the determining factor in athletics advantage. It has found flaws in the research funded by the IAAF and has questioned the idea of healthy humans being advised to take drugs for a non-existent “disease”. It has also opined that there was so much of grey area in androgen sensitivity that athletes insensitive to testosterone might fall victim to the new rules and processes.

Should law decide who is a female? 

Should the law of a country determine who is a female, as many have argued? Suppose there is no such law in a country, who will certify someone is a female or transgender or intersex?

Today, after many years of explaining testosterone levels, gender ambiguity, conditions that may lead to confusion and exceptions including polycystic ovary syndrome (PCOS), the IAAF, in its statements, has mentioned “testes” as a crucial factor in its bid to bring a “level-playing field” for women. How everyone missed this point all these years is a mystery.

The IAAF DSD regulations, however, do not mention “testes” that are the primary source of testosterone in males. Females also produce testosterone from ovaries and adrenal gland, but in much smaller quantities compared to males.

In a subject that is complex and open to debate, scientists have sniped at each other without providing a solution. Androgen insensitivity in a female having one of the seven DSD conditions listed by the IAAF may lead to a state where the individual is incapable of utilising the testosterone produced. The IAAF has covered this situation by mentioning that in all cases the athletes who may be selected to undergo tests would be fully androgen sensitive. Critics say this is complicated science and it is difficult to establish androgen insensitivity in many cases.

The normal testosterone levels are above 10 nanomoles per litre for males and 0.1 to 2.8nmol per litre for females. The IAAF has fixed 5nmol per litre for DSD females. If exceeded, they would be ineligible to compete in select women’s events ranging from 400m to 1,500m and the mile at the international level, though they could compete at the national level and other meets that are not specified.

Athletes shy of coming forward

The cry of “discrimination” is loud across the world. From a United Nations group on human rights to scientists to activists to writers all are prepared to brand the IAAF as guilty. The organisation has said it has the support of a wide representation of the athletics community. Most of them are wary of coming forward, though. This, in a way, has harmed the interests of the non-hyperandrogenic females.

World marathon record holder Paula Radcliffe of Britain has suffered in expressing her opinion in favour of regulations, but someone like Kelly Holmes, also of Britain, a double gold winner in the Olympics, received encouraging support from her followers, when she tweeted: “Anyone can live how they want to live, but let women have their rights too!” Tennis great Billie Jean King – who famously beat 55-year-old retired male player Bobby Riggs when she was 29 in the Battle of the Sexes match in the 1970s – has offered Caster Semenya her full support. However, fellow legend Martina Navratilova has said that allowing transgender women to compete in women’s sport is “insane”.

Only a few active athletes have so far tried to show the hopelessness in competing against Semenya or a couple of others who are yet to sweep the races like the South African but are still formidable. There is a genuine apprehension that if Semenya wins her appeal in CAS, the stage might be set for hyperandrogenic athletes to be prepared consciously and methodically by nations that are out to gain Olympic glory. India might not be an exception in this hyperandrogenic exercise. If doping could be institutionalised to the extent that it has been shown to be in Russia, the testosterone-driven female athletes, supported by the State, could well become a reality, many have argued. CAS holds the key to the future of women’s sports in the world.

 (This article was first published in the print edition of Firstpost on March 1, 2019: "Battle of the sexes reboot" )

Is it a BCCI climbdown or another farce?

Cricket is not a dope-driven sport. It comes very low down in the hierarchy of dope-affected sports. By its illogical and obstinate stand against the attempts of the International Cricket Council (ICC) to get cricket compliant with the World Anti-Doping Code (WADC), the Board of Control for Cricket in India (BCCI) has brought undue focus on the sport in the doping sphere through the past decade. If recent reports are any indication, the BCCI seems hell bent on maintaining that position, giving a special status to itself in the world of sports organisations across sports and at the same time trying to run down the National Anti-Doping Agency (NADA).

The latest report about the BCCI suggesting a “trial run” to allow the NADA to carry out tests on cricketers is yet another farce it is going to attempt to cling onto its illogical argument. It is being reported as some sort of a climbdown by BCCI as though it is a body that can get away with anything.

It cannot be up to the BCCI to make an offer and for the ICC to accept it or for NADA to welcome it. The Code compliance issue is the sole responsibility of WADA. We don’t know what all WADA found out of ICC, its regulations and the functioning of its affiliates to be Code compliant and not compliant or what WADA advised the ICC to rectify if the latter wanted not to be named ‘non-compliant’.

ICC clause that breached Code

At least one particular clause in the ICC anti-doping code was surely unacceptable to WADA since it questioned the very authority of a national anti-doping organization (NADO) and provided an exception to the rule to accommodate the BCCI:

"13.2.2 Persons Entitled to Appeal In cases under Article 13.2.1, the following parties shall have the right to appeal to CAS: (a) the Player or other Person who is the subject of the decision being appealed; (b) the other party to the case in which the decision was rendered; (c) the ICC; (d) subject to Article 13.2.3 below, the National Anti-Doping Organization of the Person’s country of residence or countries where the Person is a national or license holder; (e) any other Anti-Doping Organisation under whose rules a sanction could have been imposed; and (f) WADA. 13.2.3 Notwithstanding Article 13.2.2(d), the Board of Control for Cricket in India (the National Cricket Federation for the territory of India) does not recognize the authority or jurisdiction of the National Anti-Doping Organization for India. Therefore, the right of appeal for National Anti-Doping Organizations under Article 13.2.2(d) shall not be available to the National Anti-Doping Organization in India in respect of decisions taken pursuant to the ICC Code."

It is not clear when these rule changes were made. They are not there in the ICC rules up to January 2012. They are available since at least 19 June 2017 when the existing ICC anti-doping rules have come into force.  Article 13.2.2 was changed then and a fresh one, Article 13.2.3 brought in to legitimize BCCI’s refusal to recognize NADA’s authority. They continue to be available in the ICC rules that do not in any case provide much importance to NADOs.

The main problem of course is BCCI’s refusal to allow Indian cricketers to be tested by NADA or in a broader perspective accept NADA’s authority to be in charge of all testing and ‘results management’ in all sports including cricket in this country as stipulated in NADA rules and notified by the Government of India through the Gazette. This authority stems from the WADA Code as well as from the UNESCO Convention on Doping in Sports. India is signatory to both these international protocols.

Top players concerned about privacy

Back in 2009 when the BCCI objected to the ‘whereabouts’ clause in the Code that the ICC, which became a signatory to the Code in 2006, also had to adopt, it was explained that leading Indian players were wary of their privacy being intruded into. An argument was also floated that it would be against the Indian Constitution to subject the players to ‘whereabouts’ requirements.

"We need to find a solution to the practical problem India is having, which is a constitutional issue of the country, which is why we decided to suspend the 'whereabouts' clause," ICC CEO Haroon Lorgat was quoted as saying by 'Cricinfo' in October 2009.

That Constitutional issue has not affected other sports and other sportspersons some of whom have been under some ‘whereabouts’ requirements either at the international level or the national level for the past 10 years. It was just as well that other sport did not come up with this ludicrous suggestion to stall “whereabouts” because any refusal to come under any of the Code provisions would have attracted immediate sanctions by the international federations concerned, leading to resultant sanctions by the International Olympic Committee (IOC).

Cricket is different; Indian cricket more so. ICC can only request the Indian Board to fall in line, to allow NADA to do testing and results management in cricket domestically. It cannot enforce its own rules without pleading. That pleading has become necessary since ICC has ambitions of campaigning for cricket's inclusion in the 2028 Olympics. The sport is also likely to get the nod for 2022 Asian Games. If the ICC is declared non-compliant of the Code, this cannot come through. Once in the past, in 2008, the ICC had become non-compliant but came back to join the mainstream after correcting itself with out-of-competition testing that was non-existent in the early years of its anti-doping exercise.

WADA has to come in

This is not an issue between NADA and BCCI as has been made out. That stage was over long ago. Now it is a question of the WADA declaring ICC as ‘non-compliant’ since one of its member units has rules that are in breach of the Code.

That is why it is difficult to understand that a tripartite agreement is going to be reached among ICC, BCCI and NADA to carry out a six-month trial by which NADA would test 10 per cent of the samples of the Registered Pool of players of the BCCI.

If one has understood the reports, they are saying NADA would get to have authority to collect 10 per cent of the out-of-competition samples under RTP to be tested by the National Dope Testing Laboratory (NDTL).

The immediate question that arises is, what about the rest of the authority, to test in-competition, to do other out-of-competition tests, to conduct ‘results management’ and to draw up registered testing pool etc?

More surprising is the response of the NADA Director-General, Navin Agarwal.

“It is a good move, though we haven’t received any official communication from the BCCI. If the BCCI is willing to work with NADA, we are willing to (support). It is the right thing,” Agarwal said

“We go by the WADA guidelines and we handle all the federations and we are willing to accommodate whatever (concerns) the BCCI (may have)," he added. .

The BCCI has been arguing through the years. “We are not a national sports federation”. That might be true, but it makes no difference to the anti-doping structure.

If you are the national body recognized by the international federation controlling a particular sport you are liable to come under the WADA Code and the National Anti-Doping Organization’s rules. There should be no escape from that. There is no requirement for a body to be registered or recognized as a National Sports Federation.

After having taken a tough stand initially in November 2017 about bringing Indian cricket under NADA’s authority, the Union Sports Ministry softened its stand thereby allowing BCCI to have misleading notions about its own powers and infallibility.

The goof-ups cannot be an excuse

Of late, the BCCI had also started changing its tune further. It had started pointing out “goof-ups” by NADA in some cases that has led to a few negative reports being re-opened. In the latest case, javelin thrower Devinder Singh Kang has been exonerated by the International Association of Athletics Federations (IAAF) and WADA after NDTL withdrew its 15-month-old ‘positive’ report.

For one thing, it is the laboratory under scrutiny here and not NADA. For another, even if NADA had faltered, it is not the BCCI’s job to issue a certificate of “competence” and agree to join the rest of the sports fraternity in allowing NADA to conduct testing. Any adverse opinion should come from WADA. National federations do not have the luxury of picking its testing agency or laboratory as per competence and reputation. Moreover, the BCCI also has been using NDTL for its sample testing requirements and it cannot now be saying “sorry, we were using sub-standard facilities”. As for sample collection etc, again it is not strictly a choice for BCCI to fall in line or not.

This is where the BCCI and possibly the ICC have apparently not grasped the situation. NADA is not an agency like the IDTM that the BCCI and several other international federations and anti-doping agencies have engaged for their sample collection. It is a National anti-doping authority having jurisdiction over the entire sports structure in the country. Its rules are non-negotiable and so are the WADA rules.
Just imagine if the Athletics Federation of India (AFI) were to say, "we are not happy with NADA DCOs, their sample collection process and result management. Now onwards, we will do our own dope-testing and hearing process!" That is not an option available to any national federation or for an international federation to accommodate in its rules. 

“IDTM has been doing a good job, ICC is WADA-compliant, so we too are WADA- compliant and we need not be NADA-compliant” is a refrain only the anti-doping illiterate will express.
The BCCI's hearing process and some of its decisions in the few doping cases that it has handled should also come into scrutiny when it talks of NADA's "inefficiency". Of particular interest to those following anti-doping was the decision in the Yusuf Pathan case. He was deemed to have been under suspension when he actually competed! An earlier piece on that is here.

The ICC has a ‘whereabouts’ policy that is based on team training venues and team hotel. It does not require individual players to provide ‘whereabouts’ in order for testers to spot them at specific locations throughout the year. NADA’s requirements may be different though it would be extremely surprising if NADA was to pick a leading player who is already on the ICC ‘whereabouts” list. Even if this was to happen, what harm would be done if an Indian cricketer’s whereabouts are made known? Will security be compromised? Is it difficult to know in these Googling days where M. S. Dhoni stays or where Virat Kohli’s residence is?

(Updated 19 March 2019)