Insights into litigation, sports law, media and legal culture

Sporting integrity, gender and human dignity: Dutee Chand and what her case means for Rio

You don’t make me feel like a woman anymore

And you don’t make me feel like a woman anymore

You don’t make me feel like a woman anymore” – Say Goodbye, Hunters & Collectors

To be born a gender one does not feel.  It must take a special brand of courage to acknowledge this openly, and then to act on it by going through a process of transition.

I used to think ‘LGBTI’ was an incomprehensible acronym conjured up by the Politically Correct Police.  However, thanks to the willingness of Catherine McGregor, Caitlyn Jenner, Chaz Bono and others to share their often very painful stories with the world, many of us now accept that the continuum of sexual orientation and gender is not binary.  Words like ‘male’ and ‘female’ are sometimes not enough.

‘LGBTI’ means Lesbian, Gay, Bisexual, Transgender and Intersex.

Now consider this alternative.  Imagine you are completely comfortable with being a woman.  You have always been certain of who you are.  You are a natural athlete and you are competing successfully in your chosen sport.  This is important because you do not come from a wealthy family.  You are from a developing nation, your parents are weavers and you have many siblings. Your sporting success is likely to help the family as well.

However, one day, someone comes along and tells you that you are not, in fact, a woman.  Whilst perhaps not a man, you are at least, ‘mannish’.  Your testosterone levels are above the designated ‘woman’ threshold. It means you may have an advantage over your competitors, even if a naturally occurring one.

Your athletics federation sends you a letter.  It tells you that you are banned from participating in any athletics competition with immediate effect.

You then find out you had been subjected to gender verification tests without your knowledge.  You had understood these to be routine doping tests.

You are told to undergo medical intervention or to take drugs to reduce the ‘high androgen level’ that has made you ineligible to race. Other women have done this in the past so they can compete, including surgery to change the appearance of their genitalia which appears mysterious and irrelevant to questions of sporting advantage.

Androgen means a male sex hormone such as testosterone. Hyperandrogenism (an excessively high level of circulating androgen and androgen sensitivity of the receptor tissues) is said to be a form of hormone dysfunction.  The raised levels may be caused by a tumor or functional endocrine disorder.  Symptoms include acne and hirsutism, and in severe cases, hoarseness and deepening of the voice, alopecia, muscular hypertrophy and clitoromegaly: para [64] of Dutee Chand CAS Decision, noting that, by the comments of other experts, the science does not appear to be settled.

You write to your federation pleading to continue what you love doing.  You assure them you have not doped or cheated, and that your high androgen levels are natural.  You explain that you feel perfectly healthy and that you do not want to undergo invasive, often irreversible medical procedures that may harm your health.

You eloquently explain: “I am unable to understand why I am asked to fix my body in a certain way simply for participation as a woman.  I was born a woman, reared up as a woman, I identify as a woman and I believe I should be allowed to compete with other women, many of whom are either taller than me or come from more privileged backgrounds, things that most certainly given them an edge over me…Please allow me to run competitively”.

To compound your agony and shame, confidentiality is breached and everyone soon knows that the unnamed athlete the public had been told has been banned from competing is, in fact, you.

This is the story of Dutee Chand, told from her perspective.  Standing in her shoes, it is pretty awful so far.

A happy-ish ending

The public nature of Ms Chand’s plight attracted experts to her side. She obtained pro bono support from a law firm in Toronto. They developed a sophisticated public relations campaign, featuring the hashtag #letduteerun.  Then they challenged the regulations preventing her from competing.  And won.

On 24 July 2015, the Court of Arbitration for Sport (CAS) threw out the regulations prohibiting Ms Chand from competing, at least temporarily (CAS 2014/A3759 Dutee Chand v AFI & IAAF).  Unless the IAAF returns to CAS with compelling evidence justifying their scientific veracity within a two year period, the Hyperandrogenism Regulations will be declared void.

Former Federal Court of Australia Judge, Annabelle Bennett, was the President of the CAS Panel, joined by Canadian law Professor Richard McLaren and UK barrister, Edward Craven.

The lengthy decision reflected, as the Panel put it, the “exceptional care and detail” in which complex issues about gender testing and sex verification, and philosophical arguments about the meaning of fairness in sport, were tested.

They were at pains to clarify that Ms Chand is a woman.  In other words, this was a case about the validity of imposing a hormone threshold as an eligibility requirement.

The complex, legal, scientific, factual and ethical issues in Dutee Chand’s case are reverberating today in the lead up to the Rio Olympic Games.

What are the Hyperandrogenism Regulations?

The Hyperandrogenism Regulations (Regulations) only apply to female athletes.  A creature of the International Association of Athletics Federations (IAAF), they were used by the Athletics Federation of India (AFI) to stop Ms Chand from competing.

These are also the Regulations that were meant to be in force during the 2016 Rio Olympics.  Right now, they are not.

The language in the Hyperandrogenism Regulations is disturbing in its subjectivity: “Despite the rarity of such cases, their emergence from time to time at the highest level of women’s competition in Athletics has proved to be controversial since the individuals concerned often display masculine traits and have an uncommon athletic capacity in relation to their fellow female competitors.”

In other words, if competitors think you look or behave a bit too manly on the track or in the changing rooms, expect trouble.

This is what happened to Ms Chand.  A letter sent by the AFI about Ms Chand in the lead up to her ban claimed “that there are definite doubts regarding [her] gender.  The athlete has won a Gold Medal in 200m (Women) and as well as 4×400 Relay (Women) in the recently concluded 17th Asian Junior Athletics Championships held at Chinese Taipai.”  The letter added that during those championships, “doubts were expressed…regarding her gender issue”.   Gender verification testing was recommended to “avoid any embarrassment to India”.  There was no mention of the inevitable embarrassment to Ms Chand.

People displaying such ‘masculine traits’ are then susceptible to a three-stage intensive medical assessment process involving:

  • Level 1 – Initial Clinical Examination
  • Level 2 – Preliminary Endocrine Assessment
  • Level 3 – Full examination and diagnosis

There are then layers upon layers of procedures everyone must follow.  If at the end of all this, a female does not ‘pass go’, she is ineligible from participating in competition at all.

The issues confronting CAS

Nature is not neat.  The CAS Panel identified this at the outset: “Although athletics events are divided into discrete male and female categories, sex in humans is simply not binary”.

The CAS Panel accepted that it is reasonable to have male and female categories in sport.  The distinction is a matter of legal recognition.  It makes sense given the strength, power and speed that men can have over women.

However, the CAS Panel added that every athlete must in principle be able to go into either category.  The Olympic Charter identifies participation in sport as a human right.  To exclude women from competing entirely breaches this fundamental principle.  So too, the IAAF Constitution also aims to stamp out discrimination. The Regulations were subordinate to these aims and, as the CAS Panel concluded, excluding women from participating in sport was antithetical to these overriding objects.

Accordingly, the CAS Panel found that, because the regulations were prima facie discriminatory, the onus was on the IAAF to show they were necessary, reasonable and proportionate for the purpose of establishing a level playing field for female athletes.

If the IAAF could prove that women with hyperandrogenism had an unfair competitive advantage, then the Regulations stood a chance of surviving.  However, the IAAF could not do this.

The IAAF did prove some of the steps.  For instance, the CAS Panel accepted that testosterone is a marker of gender and potentially a material factor in determining athletic performance.

However, the threshold in the Regulations (10 nanomoles per litre) lacked scientific strength.  The threshold was essentially the product of IAAF decision makers, namely, it was at the lower end of what can be considered ‘manly’.

Ms Chand’s experts identified a range of problems with a test based only on testosterone:

  • there were no scientific norms for testosterone levels in healthy individuals across cultures;
  • the majority of research on testosterone had been conducted on men of European descent living in major cities, and it was unclear how these findings might be generalized to other people;
  • testosterone levels are naturally dynamic and vary in individuals in response to an array of environmental, physiological and social factors;
  • there is an overlap in testosterone concentration between the sexes; and
  • the test ignored other factors impacting performance, such as growth hormone.

The CAS Panel concluded that it was not self-evident that a woman above the threshold would enjoy the competitive advantage of a male athlete.  The Panel was unable to conclude that the regulations fulfilled their stated purpose. The data was not yet available to support the IAAF’s stance.

Accordingly, the IAAF had not discharged the ‘necessary or proportionate’ burden.

The Regulations were therefore suspended for two years subject to provisos –

  • The IAAF may submit further written evidence during that period;
  • If no such evidence is supplied during the two year period, the Regulations will be declared void.

Disturbing ethical issues the CAS Panel failed to confront

The CAS Panel decided not to enter the ethical minefield revealed by much of the expert evidence, preferring a simpler route home.

However, the Regulations suggest an ideology more in keeping with the Victorian Age than the one we now live in.

Perhaps one day, hyperandrogenism will be confined to the annals along with ‘female hysteria’ (when women were medically treated if they were moody or ‘difficult’) or phrenology (determining intelligence and propensity for criminality by the shape of one’s skull) or trepanation (drilling a hole into the skull to ease seizures or migraines).

For now, it is worth reflecting on the fact that in the post-2000 era, healthy female athletes have already been subjected to invasive medical procedures, including female genital mutilation, in the name of these Regulations and the sport’s organizing body.

As Ms Chand’s team submitted, the Regulations incited scrutiny, suspicion and fear of particular body types and particular modes of gender presentation.  They were likely to increase the pressure on female athletes to conform to stereotypical expectations of “feminine” behaviour and appearance for fear of being investigated and prevented from competing.

The experts also identified that, to date, the hyperandrogenism test has only been used against women from developing countries.  Poor women from the Global South appear to be the population most affected by the regulations. Can this be a coincidence?

Further, might not this ‘advantage’ be balanced out by the improved training facilities (including diet) that a female athlete might enjoy in a developed nation?

One expert explained that the harm inflicted by these Regulations included termination of family relationships, loss of employment and even attempted suicide.  And yet, the IAAF appeared not to have turned its mind to the appalling loss of human dignity to those women involved prior to implementing the Regulations.

There is, of course, no corresponding test for men, for example, where a man might have such excessive natural testosterone he has an unfair advantage over his competitors.

One expert contrasted the treatment of testosterone with other biological advantages commonly present in groups of athletes:

  • Some runners and cyclists have rare mitochondrial conditions that give them extraordinary aerobic capacity and resistance against fatigue;
  • Some basketball players have a hormonal condition known as acromegaly, which results in exceptionally large hands and feet;
  • The proportion of elite baseball players with perfect vision is significantly higher than amongst the general population;
  • Some elite athletes have genetic variations that respectively increase muscle growth-efficiency and blood flow to skeletal muscles.

None of these are subject to eligibility conditions.

International Olympic Committee (IOC) wants to bring back the Hyperandrogenism Regulations for Rio

In November 2015 the IOC held a “Consensus Meeting on Sex Reassignment and Hyperandrogenism”.  An eminent group of people participated, primarily from first world nations, including the Chairman of the IOC Medical & Scientific Commission, scientists and intellectual property lawyers.

I have read the list of attendees at least three times because of my surprise at the gross insensitivity of the recommendations in response to the Dutee Chand Interim Award.  I can only assume that the brevity of the recommendations does not fully support the learned discussion that must have occurred during that meeting.

Here are the three announced recommendations.

First, hyperandrogenism rules should be in place for the protection of women in sport and the promotion of the principles of fair competition.

Pausing there, and as a woman, I thank you for making sure that my gender is appropriately looked after.  I do wonder about how many of these pronouncements might commence: “For the protection of men in sport”.  It just does not sound quite the same, does it?

Secondly, the IAAF, with support from other International Federations, National Olympic Committees and other sports organisations, is encouraged to revert to CAS with arguments and evidence to support the reinstatement of its hyperandrogenism rules.

There was no apparent consideration of any of the ethical issues outlined above.  Further, there is no publicly released record of any discussion between the eminent scientific attendees at the IOC Consensus Meeting about what that scientific ‘evidence’ might look like.

Thirdly, “to avoid discrimination”, if not eligible for female competition, the athlete should be eligible to compete in male competition.

So, even though the athlete is a woman (confirmed expressly by CAS in the case of Ms Chand), the good news according to this IOC Consensus Meeting is that she could avoid a complete ban, by competing as a man. Awkward, to say the least.

Will Dutee Chand and others like her be able to compete in Rio?

Time is running out for the IOC and IAAF if it wants to stop the ‘vice’ of women with too much testosterone participating competitively in Rio.

The Rio Olympic Games begin on 5 August 2016.  There is little, if any, time left to mount a case before CAS and expect a determination in time.

Of course, the uncertainty for athletes in the cross hairs of the suspended Regulations must not be helping their Olympic preparations.

Conclusion

Sport should be a level playing field. But for athletes with a natural advantage, and where sport is replete with tales of natural advantages, the lines for excluding anyone should be very carefully drawn indeed.

 

 

 

 

 

 

2 Responses to “Sporting integrity, gender and human dignity: Dutee Chand and what her case means for Rio”

  1. Gina Faba

    Great post. Very complex issues, but if enough people could see that presentations of gender sit on a ‘continuum’, and that perhaps we could think about structuring our activities to cater for those realities, that might help. Cheers, Gina

    Reply

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