Revisiting The Hyperandrogenism Conundrum: A Review Of The Cas Decisions In Dutee Chand V Afi & Iaaf And Caster Semenya V Iaaf By Steve Austin Nwabueze

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 the case of Mokgadi Caster Semenya & Athletics South Africa
v The International Association of Athletics Federation 
dismissing the Petitioner’s request for arbitration and upheld 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 liter 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 5nmol/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, which means 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
discussions. 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, the IAAF 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 the international
level.

An athlete that falls 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 or intersex or an
  equivalent;
• reduces her blood testosterone to below 5 nmol/L for a
  continuous period of at least

6 months by, for example, using hormonal contraceptives; and •
      maintains that level of testosterone
both in and out of competition.

The Issues

Ms Semenya and the Athletics South Africa, in challenging the
DSD Regulations contend that the regulations:

• 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 the afore-mentioned basis, Ms. Semenya and the Athletics
South Africa posit that the Regulations are 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 law of the
various jurisdictions in which international athletics competitions
are held, and universally recognized 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. This
included experts specializing 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 in its ruling, 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
since the regulations target a group of individuals on their
immutable biological characteristics:

A majority of the Panel concluded that the IAAF had succeeded in
establishing that the DSD Regulations were necessary and held
further as follows:

• It was not in dispute that it was legitimate to have separate,
  binary categories in sports for men and women, which in turn
  required the IAAF to devise a means of determining which athletes
  fall into each category.
• The Panel in turn accepted the IAAF’s submission that
  categorization 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 that
  she lacked those performance advantages.
• The Panel unanimously found that endogenous testosterone is the
  primary driver of sex difference in sports performance between men
  and women. The CAS agreed with the IAAF that all of the factors
  that contributed 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 individuals
  who possess the higher levels of testosterone to compete in the
  lowertestosterone 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. That conclusion
  –was 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 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 following those
Championships, 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 Operative
Procedure for female hyperandrogenism.

The AFI and the 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 statement suggested that a
“gender test” had been carried out on a female athlete and
that she was not eligible to compete, before the subsequent
statements clarified that the tests related only to
hyperandrogenism and not to gender.

After these statements were made, Dr Payoshni Mitra made contact
with Ms Chand. She was appointed by the SAI as a mediator and
consultant for Ms. Chand in late July 2014. However, though Ms.
Chand and Dr Mitra met with the SAI and the AFI on 14 August 2014,
the position of both organizations remained that she should not be
allowed to compete in women’s athletics events. By a decision
letter received on 31 August 2014 (“the Decision”), she
was told by the AFI that she was provisionally suspended from
participating in any athletics events.⁴

Ms. Chand then filed a Statement of Appeal at CAS on 26
September 2014 naming the IAAF and the AFI as respondents. She
challenged both the Decision and the validity of the
Regulations.

Ms. Chand’s challenge rested on four grounds of
appeal:

Ms. Chand’s challenge rested on four grounds of appeal:
i. The Regulations impermissibly discriminated against female
athletes on grounds of a natural physical characteristic (namely
their androgen levels) and/or sex (“Ground 1”);

ii. 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”);

iii. The Regulations were not proportionate to their legitimate
objectives (“Ground 3”); and

iv. The Regulations were an unauthorized form of doping sanction
in violation of the World Anti-Doping Agency Code (“Ground 4”).

The case was heard on 23 – 26 March 2015.⁵ The Panel
was comprised of 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.⁶ Several experts
produced reports and gave evidence along with number of other
witnesses including non-hyperandrogenic female athletes for both
sides.

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

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). The IAAF accepted that it bore
the burden of justifying that discrimination. The decision on both
Grounds 1 and 3 therefore turned on whether the IAAF could
demonstrate that 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. However, it then
stated 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 practicing 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 that males typically enjoy over females. The
IAAF effectively had to prove this premise to succeed on
proportionality.

In finding that the IAAF had failed to do so, the
“critical” consideration for the Panel was that there was
insufficient evidence about the degree of the athletic
advantage which 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 that the advantage was any greater from 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 latter decision, the logical inference is that the
decision of the Court of Arbitration for Sports in Caster Semenya’s
case has overruled the earlier decision in Chand. It is however,
worth mentioning that the CAS in Caster Semenya’s case acknowledged
that 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 DSD Regulations constituted a proportionate interference with
the rights of 46 XY DSD athletes. As hinted earlier, 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 available scientific data. Given that
the time lag between the two decisions is five years, it is not
clear the quantum of scientific data that 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 this respect. indeed– but 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 in having double the lung capacity of the average human
which gives him a clear advantage in swimming has neither been
addressed nor indeed 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 blacks 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 under stressed 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 blacks’ “relative lack of
subcutaneous fatty insulating tissue in the skin” as a possible
physiological advantage.

The decision has been critricised for its seeming confusion of
sex and biology^[1]. 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.
This was assessed
anatomically in the 1960s^[1],^[2]
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 forwards, there were no tests of
gender other than self–identification^[3][4][5].^[6]

Caster Semenya’s gender is uncontroversially female. She is
legally female, was from birth raised as female and identifies as a
female. So, on the current definition, Semenya is a female. Indeed,
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 can go on and 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 argument on competitive
advantage 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 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 interest in
appealing the decision. It would be interesting to find out what
the regular court decides.

[1]
https://theconversation.com/ten-ethical-flaws-in-the-caster-semenya-decision-on-intersex-in-sport-116448

Written by Steve Austin Nwabueze