Revisiting the Hyperandrogenism Conundrum: A Review of the CAS Decisions in Dutee Chand v AFI & IAAF and Caster Semenya v IAAF

Introduction

In what appears to be perhaps one of the most controversial sporting decisions in recent years, the Court of Arbitration for Sport (CAS) on 30 April 2019 delivered its award in Mokgadi Caster Semenya & Athletics South Africa v The International Association of Athletics Federations, dismissing the petitioners’ request for arbitration and upholding the validity of the IAAF Regulations for Female Classification (Athletes with Differences of Sex Development) (the DSD Regulations).

The case centres on the legality of a 2018 IAAF eligibility regulation for women with differences of sex development (intersex women), defined by the IAAF as “women who have testosterone levels of over five nanomoles per litre of blood (nmol/l) and whose bodies can ostensibly use that testosterone better than other women can.” Under these rules, women athletes with differences of sex development would have to reduce and maintain their testosterone levels to 5 nmol/l or less in order to compete. The reasoning behind the regulation is that women with naturally high testosterone levels, and whose bodies are apparently highly sensitive to that testosterone, have a significant performance advantage over their peers in certain events.

Background facts

Semenya is a hyperandrogenic athlete, meaning her body produces an unusually high level of testosterone for a woman. Following her first major international title in 2009, the IAAF ordered a test to check whether the South African really was a woman — Semenya’s masculine looks and deep voice had sparked discussion. She was controversially barred from competition and was only allowed to return in mid-2010.

In March 2018, the IAAF informed the CAS that it intended to withdraw and replace the Hyperandrogenism Regulations. The following month, it enacted the DSD Regulations.

The DSD Regulations establish new requirements governing the eligibility of women with certain DSDs to participate in the female classification in eight events. The Restricted Events include the 400m, 800m and 1500m races (Regulation 2.2(b)). Caster Semenya regularly participates in each of those events at international level.

An athlete falling within the scope of the DSD Regulations will only be able to compete in a Restricted Event on the international stage where she:

is recognised at law as female, intersex, or an equivalent;

reduces her blood testosterone to below 5 nmol/L for a continuous period of at least six months, for example by using hormonal contraceptives; and

maintains that level of testosterone both in and out of competition.

The issues

Ms Semenya and Athletics South Africa, in challenging the DSD Regulations, contended that they:

unfairly discriminate against athletes on the basis of sex and/or gender, because they only apply to female athletes and to female athletes having certain physiological traits;

lack a sound scientific basis;

are not necessary to ensure fair competition within the female classification; and

are likely to cause grave, unjustified and irreparable harm to affected female athletes.

On this basis, Ms Semenya and Athletics South Africa argued the Regulations were unfairly discriminatory, arbitrary and disproportionate, and therefore violated the IAAF Constitution, the Olympic Charter, the laws of Monaco (where the IAAF has its headquarters), the laws of the various jurisdictions in which international athletics competitions are held, and universally recognised fundamental human rights.

In response, the IAAF submitted that the DSD Regulations did not discriminate on the basis of a protected characteristic, were based on the best available scientific evidence, and were a necessary, reasonable and proportionate means of pursuing the legitimate aim of safeguarding fair competition and protecting the ability of female athletes to compete on a level playing field.

The decision of the CAS

Between 18–22 February 2019, a hearing of the claimants’ challenges was held before the CAS in Lausanne, Switzerland. The CAS Panel comprised the Hon. Dr Annabelle Bennett AO SC (President), the Hon. Hugh L. Fraser (Arbitrator) and Dr Hans Nater (Arbitrator). The Panel received detailed written and oral testimony from a large number of factual and expert witnesses, including experts specialising in gynaecology, andrology and the causes, diagnosis, effects and treatment of DSD; genetics, endocrinology and pharmacology; exercise physiology and sports performance; medical and research ethics; sports regulation and governance; and statistics.

The CAS unanimously dismissed Ms Semenya’s requests for arbitration and confirmed the validity of the DSD Regulations. The Panel unanimously concluded that the DSD Regulations are discriminatory, since they target a subset of female athletes (without imposing any restriction on their male counterparts) and target a group of individuals on the basis of immutable biological characteristics.

A majority of the Panel concluded that the IAAF had succeeded in establishing that the DSD Regulations were necessary, holding further as follows. It was not in dispute that it was legitimate to have separate, binary categories in sport for men and women, which in turn required the IAAF to devise a means of determining which athletes fall into each category. The Panel accepted the IAAF’s submission that categorisation on the basis of a person’s legal sex may not always constitute a fair and effective means of categorising athletes for the purpose of sport — the purpose of having separate categories for men and women was not to protect women from having to compete against men per se, but rather to protect those individuals who “lack insuperable performance advantages” from having to compete against those with such advantages. The fact that a person was recognised as a woman in law did not mean she lacked those performance advantages.

The Panel unanimously found that endogenous testosterone is the primary driver of the difference in sports performance between men and women, agreeing with the IAAF that all of the factors contributing to sporting performance are equally available to men and women, except exposure to adult male testosterone. Thus, if the male-female divide in sport is really a divide between those with and without the testosterone-derived advantage, then it is necessarily “category defeating” to permit any individual who possesses higher levels of testosterone to compete in the lower-testosterone category. A majority of the Panel concluded that elevated testosterone levels in athletes with 46 XY DSD gave such athletes a significant performance advantage over other female athletes, a conclusion based on evidence concerning the performances and statistical over-representation of female athletes with 46 XY DSD.

The earlier decision in Dutee Chand v AFI & IAAF

It is pertinent to note that an athlete had challenged the DSD Regulations’ predecessor even before Semenya’s appeal to the CAS. In 2014, a 19-year-old Indian athlete, Dutee Chand, appealed to the CAS, challenging her indefinite ban for elevated testosterone levels under the IAAF’s Hyperandrogenism Regulations.

The arbitration process was initiated by Chand, a highly promising runner who won gold medals at the Asian Junior Track and Field Championships in May 2014. In the months that followed, she underwent a number of medical examinations at the behest of the Athletics Federation of India (AFI) and the Sports Authority of India (SAI), with the apparent purpose of determining whether she had hyperandrogenism. The tests were carried out by reference both to the Regulations and to the Indian Ministry of Youth Affairs and Sport’s own Standard Operating Procedure for female hyperandrogenism.

The AFI and SAI concluded that Ms Chand did have hyperandrogenism. The SAI then issued a number of public statements on 15, 16 and 17 July 2014 — the first suggesting a “gender test” had been carried out on a female athlete and that she was not eligible to compete, before subsequent statements clarified that the tests related only to hyperandrogenism, not gender.

After these statements, Dr Payoshni Mitra made contact with Ms Chand and was appointed by the SAI as a mediator and consultant for her in late July 2014. Although Ms Chand and Dr Mitra met with the SAI and AFI on 14 August 2014, the position of both organisations remained that she should not be allowed to compete in women’s athletics events. By a decision letter received on 31 August 2014, she was told by the AFI that she was provisionally suspended from participating in any athletics events.

Ms Chand then filed a Statement of Appeal at CAS on 26 September 2014, naming the IAAF and the AFI as respondents, and challenging both the decision and the validity of the Regulations. Her challenge rested on four grounds: that the Regulations impermissibly discriminated against female athletes on grounds of a natural physical characteristic (their androgen levels) and/or sex (“Ground 1”); that the Regulations were based on the factually flawed assumptions that men and women could be distinguished by reference to testosterone levels, and that elevated levels of natural testosterone produced enhanced athletic performance (“Ground 2”); that the Regulations were not proportionate to their legitimate objectives (“Ground 3”); and that the Regulations were an unauthorised form of doping sanction in violation of the World Anti-Doping Agency Code (“Ground 4”).

The case was heard on 23–26 March 2015. The Panel comprised the Hon. Justice Annabelle Bennett (of the Federal Court of Australia), Professor Richard H. McLaren and Dr Hans Nater, with Edward Craven, a barrister at Matrix Chambers, serving as ad hoc clerk to the Panel. Several experts produced reports and gave evidence, along with a number of other witnesses, including non-hyperandrogenic female athletes for both sides.

In Chand, the CAS determined that the hormone testosterone was the primary cause of the increase in lean body mass in males at puberty, and that this provided an athletic advantage to male athletes over female athletes. The Panel was not, however, satisfied as to the degree of that advantage, and declined to validate the Hyperandrogenism Regulations, which had set the maximum testosterone level for an athlete in female competition at 10 nmol/L — well above the maximum level in the female population and slightly above the minimum level in the male population. The IAAF was given the opportunity to provide further evidence to validate the Regulations.

The Panel found for Ms Chand on Grounds 1 and 3, but dismissed her claim on Grounds 2 and 4. The IAAF did not dispute that the Regulations prima facie discriminated on grounds of a natural physical characteristic and of sex (since no rules require men to be tested for endogenous testosterone levels), and accepted it bore the burden of justifying that discrimination. The decision on both Grounds 1 and 3 therefore turned on whether the IAAF could demonstrate the Regulations were necessary, reasonable and proportionate.

Both parties agreed that ensuring fairness in sport was a legitimate aim, though Ms Chand disputed the IAAF’s further suggestion that it was possible to aim for a “level playing field” in women’s athletics. On proportionality, Ms Chand claimed that female athletes in her position suffer a range of serious detriments, including stigma, the need to consent to invasive medical investigations, and the long-term health risks associated with treatments to reduce testosterone levels, while the IAAF argued it was protecting the interests of other female athletes.

The Panel acknowledged the diligence and sensitivity with which the IAAF had drafted and applied the Regulations. It nonetheless found that the Regulations — in taking effect to bar some athletes from participating in any competitive athletics, whether in the male or female category, in their natural state — were “antithetical to the fundamental principle of Olympism that every individual must have the possibility of practising sport, without discrimination of any kind”, and imposed a “significant detriment” on the athletes concerned. There was accordingly a high burden on the IAAF to justify the Regulations.

The Panel found that the premise of the Regulations was that hyperandrogenic females were at a significant advantage over other female athletes — greater than the advantage arising from any other single genetic or biological factor, and comparable to the performance advantage males typically enjoy over females. The IAAF effectively had to prove this premise to succeed on proportionality. In finding that it had failed to do so, the “critical” consideration for the Panel was that there was insufficient evidence about the degree of athletic advantage hyperandrogenic females enjoyed over other females. While the average performance advantage of men over women in athletics was in the order of 10–12%, the evidence did not show whether the advantage held by hyperandrogenic females was of the same order (although one of the IAAF’s experts had estimated an advantage of around 3%). In those circumstances, the Panel could not say the advantage was any greater than the “legitimate” advantages arising from factors such as “nutrition, access to specialist training facilities and coaching, and other genetic and biological variations”.

Concluding reflections

Being the later decision, the logical inference is that the decision of the CAS in Caster Semenya’s case overruled the earlier decision in Chand. It is, however, worth mentioning that the CAS in Semenya’s case acknowledged the DSD Regulations were patently discriminatory, thereby affirming Ground 1 of the appeal in Chand, but overruled the proportionality argument raised as Ground 3 in Chand, to the effect that the DSD Regulations constituted a proportionate interference with the rights of 46 XY DSD athletes. The CAS appears to have reached that conclusion on the basis that the DSD Regulations do not require athletes to undergo surgical intervention, and instead rely on athletes taking oral contraceptives.

In determining the issue of proportionality, the CAS had observed there was no cogent scientific basis to ascertain the level of influence of testosterone on athletes’ performance. Much would indeed depend on the available scientific data; given the five-year time lag between the two decisions, it is not clear what quantum of new scientific data was made available to the panel to sway the decision in the IAAF’s favour. In any event, the writer takes the view that an athlete’s socioeconomic background, height, or access to high-altitude training facilities may well be a significant determinant of performance.

One therefore wonders why the IAAF has not advanced the competitive-advantage argument in respect of those other characteristics — indeed, it is hard to imagine the IAAF arguing for bans, successfully or at all, based on those sorts of characteristics. There would need to be a convincing explanation of why hyperandrogenism, if it does significantly affect performance, is an illegitimate source of competitive advantage while those other characteristics are not. The speculation, albeit unproven, about Michael Phelps’ unique body structure, said to give him double the lung capacity of the average human and a clear advantage in swimming, has neither been addressed nor investigated by the IOC. So on what scientific basis has the CAS arrived at its conclusion?

In 1992, Runner’s World magazine printed a story titled “White Men Can’t Run” that cited a variety of scientific studies — most of which found physiological differences between racial groups — that may explain why black athletes dominate both sprinting and long-distance running. In 1995, Roger Bannister, a respected physician and the first man to run a sub-four-minute mile, helped bring the debate further into the open. “As a scientist rather than a sociologist,” Bannister said, “I am prepared to risk political incorrectness by drawing attention to the seemingly obvious but understressed fact that black sprinters and black athletes, in general, all seem to have certain natural anatomical advantages. Perhaps there are anatomical advantages in the length of the Achilles’ tendon, the longest tendon in the body.” He also mentioned a “relative lack of subcutaneous fatty insulating tissue in the skin” as a possible physiological advantage.

The decision has been criticised for its seeming confusion of sex and biology. Sex refers to biology, and gender refers to social role or self-identification. In sport, the definition of male and female used to be based solely on sex — assessed anatomically in the 1960s, then by biological tests such as the presence of a structure called a “Barr body” in cells (found only in genetic females), or the gene for testicular development.

Sex determination was abandoned in the 1990s in favour of gender. From the 2000 Sydney Olympics forward, there were no tests of gender other than self-identification. Caster Semenya’s gender is uncontroversially female — she is legally female, was raised female from birth, and identifies as female. So, on the current definition, Semenya is a female; there has been no question of her gender. Sex determination itself is not simple, with chromosomal, gonadal (presence of ovaries or testes), or secondary sex characteristics (physical) all possible definitions that would include or exclude different groups.

The examples could go on, but the fact remains that this ruling could potentially open a Pandora’s box of abuse by sports federations overly eager to advance the competitive-advantage argument to alienate certain athletes. Apart from the need to “protect” other athletes, there is nothing on the face of the Semenya decision to show that the IAAF established the proportionality argument on the preponderance of the evidence. As at the last count, Kenya has had to disqualify some of its middle-distance runners in apparent compliance with the DSD Regulations. Semenya’s camp has already indicated an interest in appealing the decision. It would be interesting to see what the regular courts decide.

References

1. “Ten Ethical Flaws in the Caster Semenya Decision on Intersex in Sport”, The Conversation.

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Kempes & Kaplan LP advises athletes and federations on CAS proceedings and sports regulatory disputes. Write to counsel@kandklp.com.