By: Hunar Malik
HOW THE CURRENT DOPING REGULATIONS FURTHER GENDER EXCLUSION
- WADA Code, 2021: Conflating Doping Regulations and Gender Verification
A closer examination of the Code’s drug testing violations reveals that athletes whose bodies do not conform to the conventional definitions of the male or female sex are flagged and excluded from competing in professional sports. Policing testosterone levels as a drug is especially problematic as it further enforces the definitive of maleness and femaleness through strict biological norms. The Code’s strict liability and limited availability of therapeutic use exemptions, among other restrictions for what constitutes a doping violation, further highlight the damage intended to women and the transgender community in elite sports.
Although mass sex testing during the Olympics is no longer permitted due to its unethical and disparaging nature, individual sex testing is still permitted. Drug testing, which is frequently presented as a separate subject, guarantees that sex and gender distinctions will be established in other ways. These less apparent forms of sex testing are significantly more harmful to groups marginalized by Olympic regulatory systems than widespread sex testing because they use general gender indicators as a reason to explore sex and rely on tenuous premises about sex and the body.
Additionally, the application of regulations regarding the prohibited substance or its indicators is not uniformly applied between genders. IOC is still allowed to separately examine “suspect” people. The IOC looks for gender clues to justify an investigation into sex while disguising it as a doping test, blurring the distinction between sex and gender. Due to this subjective foundation for inspection, the majority of “conventional” women are able to bypass the testing procedure, but groups that were previously marginalized by testing protocols cannot avoid further scrutiny.
The criteria of femininity that are used are frequently blatantly racist. A 2020 report from the Office of the High Commissioner for Human Rights on race and gender discrimination in sports augmented this concern, particularly arising from these sex testing regulations. In effect, the Code’s exclusion of specific hormones and hormone levels in conjunction with how a doping violation is investigated functions to disqualify athletes whose biological make-ups are deemed to be outside what is considered ‘normal’.
Interestingly, the 2021 WADA Code explicitly permits to use of doping samples for gender verification purposes. Footnote 115 to Article 23.3.2. states, “an International Federation could use data from a Doping Control test to monitor eligibility relating to transgender and other eligibility rules.” This rule did not exist in the 2015 Code. During Caster Semenya’s challenge to DSD Regulations at CAS, concerns were voiced regarding samples being used for this purpose without the athlete’s consent. There is a high risk that athletic federations may interpret the inclusion of this addendum as approval for the use of doping samples to test for hyperandrogenism, even though it is to be regulated under completely different guidelines. It appears that all a Member Federation needs to do to require a player to undergo a medical examination is to present a doping sample as proof of excessive testosterone. This is not very far from the dreaded gender tests that the sports community worked hard to eliminate.
- Dutee Chand v. AFI & IAAF: The Realities of Doping and Hyperandrogenism Regulations
The very last argument made by Chand’s counsel was that the Regulations were really a cover for a doping rule because they effectively sanctioned female competitors who exceeded the endogenous testosterone level. Since this sanction is not authorized under the WADA Code and should thus be ruled invalid. This ground of appeal was rejected by CAS because it concluded that the Regulations were an eligibility rule and not an anti-doping measure. Even though the counsel stated that this might be the weakest limb of their argument, the argument has some merit.
It is imperative to consider that athletes face similar to worse consequences when they are found to have excessive naturally occurring testosterone. Further, she was asked to go through with the tests as a ‘routine doping test’, that is, without her consent. Presently, there is no difference in the testing procedures, therefore, it is impossible for athletes to know what they are being tested for. This precludes them from refusing to test; keeping in mind ‘that gender verification tests are not a mandate for participation, unlike doping tests, which can be done at random. This lack of differences in testing procedures and a standard of proof to even test an athlete (without their consent) is an extremely precarious position for an athlete to be in.’
CONCLUSION
Although anti-doping measures and sex testing initially had different objectives, from their inception, many individuals confused the two practices. IOC must be held accountable for their WADA Code and be compelled to conduct further research on the effect of sex hormones in the body, specifically their application to women. The IOC should also refrain from explicitly targeting women with gender cues they perceive to be indicative of underlying masculinity. Lastly, they must not conflate gender verification with doping and create distinct regulations, backed by science. It is more crucial than ever to look at the IOC’s anti-doping policies and procedures and its drug and sex/gender policing functions because drug testing attempts to move away from the issues with sex testing in the past.
(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 II’ (The RMLNLU Law Review Blog, 12 June 2023) <https://rmlnlulawreview.com/2023/06/12/blurred-lines-the-ills-of-conflating-doping-and-hyperandrogenism-regulations-ii/> date of access.
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