Volume: 16 Issue: 5
The International Association of Athletics Federations (‘IAAF’) published its new Eligibility Regulations for Female Classification (Athlete with Differences of Sexual Development) on 23 April 2018 for events from 400m to the mile (‘Restricted Events’), replacing the previous Regulations Governing Eligibility of Females with Hyperandrogenism to Compete in Women’s Competition.
According to the new Regulations, which will apply from 1 November 2018, any athlete with a Difference of Sexual Development (‘DSD’) that means her levels of testosterone (in serum) are five (5) nmol/L or above and who is androgen-sensitive will be required to meet the following criteria to be eligible to compete in Restricted Events in an international competition or to set a World Record in a Restricted Event at a competition that is not an international competition as described in the IAAF’s press release: ‘(a) she must be recognised at law either as female or as intersex (or equivalent); (b) she must reduce her blood testosterone level to below five (5) nmol/L for a continuous period of at least six months (e.g., by use of hormonal contraceptives); and (c) thereafter she must maintain her blood testosterone level below five (5) nmol/L continuously (ie: whether she is in competition or out of competition) for so long as she wishes to remain eligible.’
Athletics South Africa (‘ASA’) issued a statement on 3 May that it has studied the new Regulations issued by the IAAF alongside the guidance to the IAAF issued by the CAS regarding the classification of female athletes and has taken the decision to challenge the IAAF on these new Regulations as the ASA has “found them to be skewed.” The Canadian Centre for Ethics in Sport and the Canadian Association for the Advancement of Women in Sport and Physical Activity issued a joint statement on 27 April opposing the new Regulations and particularly the requirement that an athlete artificially lower her natural testosterone to be eligible to compete in certain competitions.
“It is somewhat intuitive that athletes with DSD have performance advantages, and if no policy was implemented, it would be difficult if not impossible for the IAAF to uphold the value of inclusion in sport, as female athletes with no DSDs face the negative consequences of the absence of such a policy,” said David Spears, Partner at Wyllie Spears Labour Lawyers. “There is no question that the policy does discriminate, at its essence that is what it is designed to do, but the question will ultimately be whether that discrimination is reasonably necessary to balance fairness and inclusion. The fact that the IAAF has targeted only a small number of athletics events with the new Regulations is certainly intriguing, as it begs the question of whether these Regulations accurately represent the IAAF’s end goal, or if these events are being used as ‘test events,’ with the IAAF potentially seeking to implement further regulations on other events in the future.”
The IAAF’s previous Regulations Governing Eligibility of Females with Hyperandrogenism to Compete in Women’s Competition were suspended by the CAS on appeal by Indian sprinter Dutee Chand in 2015. The CAS gave the IAAF an opportunity to submit further evidence as to the degree of performance advantage that hyperandrogenic female athletes have over other athletes.
“The new Regulations are unfair to me,” said Dr Seema Patel, Senior Lecturer in Law at Nottingham Trent University. “We are talking about individuals who have naturally occurring levels of testosterone in their body. It is unacceptable to require athletes to undergo medical treatment in order to reduce their natural sporting talent. This mandatory requirement is a potential breach of human rights and equality principles, yet because it exists in the field of sport it is not being scrutinised in the same way.”
The Regulations state that relevant athletes who do not meet the new eligibility criteria for female classification will be able to compete in the female classification at events that are not international competitions, in the male classification at all competitions, and in any applicable intersex or similar classification that may be offered at all competitions. The IAAF press release states that no female would have serum levels of natural testosterone at 5 nmol/L or above unless they have DSD or a tumour, and that there is broad medical and scientific consensus that high levels of endogenous testosterone in athletes with certain DSDs can significantly enhance their sporting performance. “The IAAF and the IOC have been misled by non-specialists posing as experts,” comments Peter Sonksen OBE, Emeritus Professor of Endocrinology at St Thomas’ Hospital and King’s College London. “It seems that they just don’t understand or accept the biology behind hyperandrogenism. ‘XY’ women with DSD and very high testosterone levels have athletic advantages due to genes in the Y chromosome unrelated to testosterone. The creators of the Regulations were out of their depth when they oversaw its development and are too arrogant to admit that they were wrong.”
Relating to the suspension of the IAAF’s Regulations during Chand’s legal challenge, the CAS stated in a press release on 19 January 2018 that if the IAAF withdrew the Hyperandrogenism Regulations and/or replaced them with new proposed draft regulations, the legal proceedings would be terminated. “The Hyperandrogenism Regulations were suspended by the CAS in the Chand case on the basis that there was insufficient evidence that enhanced androgen levels increased athletic performance,” said Rupert Beloff, Barrister at 4-5 Gray’s Inn Square. “The IAAF has defended the new Regulations on the basis that they are scientifically supported. However, they apply to a select group of athletic disciplines that the IAAF’s own recent study showed were those that were either those affected by enhanced testosterone levels to a lower degree, or not affected at all. That in itself somewhat undermines the IAAF’s assertion that they are appropriate or fair, and at the very least opens up the potential for a legal challenge on the basis of fairness and consistency of approach.” The IAAF published research that formed part of the evidence prepared in support of its suspended Hyperandrogenism Regulations on 3 July 2017.
“There is no solution to the issues that hyperandrogenism raises in sport that can be fair to everyone,” concludes Beloff. “The question remains in matters related to inherent and natural human biological variation whether it is appropriate for sporting bodies to intervene at all to attempt create a ‘level playing field.’ No one would suggest that Usain Bolt should have been subject to some handicap because of his unusual combination of stride length and fast twitch muscle development.”