By: Hunar Malik
INTRODUCTION:
The cultural narrative of sports being considered a domain exclusively for men has historically led to the exclusion and ostracization of women in the sporting arena. Although there have been heartening steps taken by policymakers to regulate for better gender representation in sports, traditional gender norms and standards have played a significant role in deterring women from competing in professional sports. Women who perform consistently well are viewed with scepticism because these qualities are still linked to masculinity and, hence assumed to provide a competitive advantage in sports.
This article specifically deals with women whose testosterone exceeds the acceptable range prescribed by World Athletics (‘IAAF’) (a condition referred to as hyperandrogenism). The author highlights the discriminatory nature of the regulations that apply to these women and argues that the current doping regulations further aid such exclusion of women from sports. It concludes by stating that firstly, separate, and improved regulatory mechanisms are required to deal with the issue of hyperandrogenism in sports and secondly, that filling this legal gap by using doping samples as per World Anti-Doping Agency (WADA Code, 2021) to verify gender is unethical and discriminatory.
The first part of the paper traces the evolution of the regulations imposed on hyperandrogenic women and evaluates their present legal status as participants in international sporting events. Further, it assesses the legal interpretations of international regulatory bodies like the IAAF, International Olympic Committee (‘IOC’), Athletics Federation of India (‘AFI’), and Court of Arbitration for Sport (‘CAS’) and analyses how these affect women in sports. The author further tries to contextualize the issues created by these regulations and highlight where they fall short of protecting the athletes’ rights. The second part analyses the WADA Code 2021 and highlights its unethical nature in this context and underpins how the Code conveniently facilitates the ostracization of hyperandrogenic women through the application of the doping regulations.
PART 1: THE STANCE OF INTERNATIONAL SPORTS AUTHORITIES ON HYPERANDROGENISM & WHERE THE ISSUE LIES
- Tracing the Evolution of the Law Applicable to Hyperandrogenic Women
The Hyperandrogenism Regulations, 2011, which the IAAF released in May 2011, focused on the extent of advantage experienced by hyperandrogenic female athletes owing specifically to high testosterone levels. A person with hyperandrogenism would need to undergo medical intervention to reduce their testosterone levels if they wanted to participate in sports. However, as the CAS agreed in Chand v. AFI, these prohibitions were suspended since there wasn’t enough scientific data to support the existence of competitive advantage.
The IAAF subsequently claimed that sufficient evidence in this regard existed, but, other members of the scientific community challenged these claims, arguing that the connection between hereditary features and hormones is considerably more ‘nuanced’ and ‘inconclusive’. Consequently, the Eligibility Regulations for the Female Classification (Athletes with Differences of Sex Development (‘DSD’)) (‘2018 Regulations’) were introduced. They stipulated that “biologically male” athletes whose natural testosterone levels were above the updated threshold of 5 nmol/l need to keep it within this acceptable range, for at least 6 months, through hormone treatment if they wished to participate.
CAS, in Semenya v. IAAF, acknowledged the negative effects of the treatment, but they did not find that they outweighed the need to enforce the 2018 Regulations in order to ensure competitive impartiality; they were concluded to be reasonable and necessary. However, due to the possibility of unintentional fluctuations, medication side effects, and confidentiality concerns, CAS expressed “serious concerns” about the application of the 2018 Regulations.
Following the verdict, an appeal was filed by Caster Semenya with Switzerland’s Supreme Court (‘SFT’), which temporarily suspended the 2018 Regulations. However, in 2019, the SFT reversed this decision, adjudging that the “high standard” for suspension had not been satisfied. The appellate court upheld the SFT judgment. The CAS continues to recognize Semenya as a woman while still accepting the IAAF’s classification of her as “biologically male” in accordance with the 2018 Regulations, which remains a logical contradiction.
- 2018 Regulations: The Complexities and Issues
The 2018 Regulations are based on widely contentious science and contrary to the CAS’s mistaken assumption that the science was essentially definitive. Although the goal to make sports ‘fair’ (keeping in mind that this term is tough to define) might be justifiable, they are not consistently carried out. Athletes have bodies that are advantageous for athletic performance due to a variety of biological characteristics and genetic variations, but they are exempt from the same constraints. It is irrational, oversimplistic, and against the core of contemporary scientific understanding, which acknowledges that sex is not binary, to treat athletes who are born and identify as female as biologically male.
In the case of Dutee Chand, an Indian sportswoman, her counsel submitted evidence to the effect that no study offers with certainty the difference between how endogenous or exogenous testosterone reacts within the body. She further argued that the rules discriminate on the basis of a natural occurrence that is outside the control of the athlete. It would not make sense to remove all genetic variation in an attempt to make the ground so fair since other societal implications that significantly affect sports performance cannot even be considered by sports governance to create a so-called fair playing field. Experts argued that because this is a natural attribute and should be treated no differently than any other biological variation, the Regulations’ foundational premise that all competitors may be objectively classified into male or female categories is flawed.
Furthermore, the IAAF’s standards, which clearly contradict the medical approach to hyperandrogenism, encourage invasive and irreversible procedures for the sake of athletic eligibility. The IAAF does not give aftercare and only offers to pay for selected operations. Since the (IOC) mandates national Olympic committees to ‘actively analyze any perceived variance in sex characteristics before enrolling athletes,’ therefore, the effects of these policies go far beyond just elite, international-level competitors. For instance, India has had a policy for discerning sex characteristics that are applicable to women athletes at every level.
The central question in this debate, from the perspective of sports law, is scientific: how is sex determined in sports? If testosterone is a significant predictor of athletic performance, how much does it influence athletic performance? If so, is this sufficient to justify their exclusion from the restricted female events? For CAS, this depends on whether these exclusionary regulations are ‘discriminatory, necessary, reasonable, and proportionate.’ Currently, this subject is hotly debated in the scientific community, with a consensus yet to be reached; yet, until a consensus is found, unfairly, athletes bear the weight of this regulatory gap.
(Hunar Malik is a law undergraduate at Gujarat National Law University. The author may be contacted via email at hunaarr@gmail.com)
Cite as: Hunar Malik, ‘Blurred Lines: The Ills of Conflating Doping and Hyperandrogenism Regulations’ (The RMLNLU Law Review Blog, 12 June 2023) <https://rmlnlulawreview.com/2023/06/12/blurred-lines-the-ills-of-conflating-doping-and-hyperandrogenism-regulations/> date of access.
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