Firstpost Explains: How Caster Semenya's case against the IAAF on hyperandrogenism will have wider ramifications in athletics
The CAS is expected to hold a five-day hearing into an appeal by Caster Semenya seeking to set aside the new regulations of the IAAF on hyperandrogenism.
CAS is expected to hold a five-day hearing into an appeal by Caster Semenya seeking to set aside the new regulations of the IAAF on hyperandrogenism.
Both Chand and Semenya often argued that they were born with what their advantages were perceived to be and they would not be prepared to change.
The latest IAAF rules stipulate a testosterone level of 5nmol/L for female athletes compared to the 10nmol/L in the 2011 rules that were set aside by CAS.
There could be a variety of conditions that may present gender ambiguity and variations. This is what the anti-hyperandrogenism lobby has been arguing.
Will CAS be swayed by media hype and public support or will it strictly go by the evidence and the need to have some parameters to determine sex?
The hyperandrogenism issue is in international focus once again. Beginning Monday, the Court of Arbitration for Sport (CAS) is expected to hold a five-day hearing into an appeal by South African middle-distance runner Caster Semenya, two-time Olympic champion, and three-time world champion, seeking to set aside the new regulations of the International Association of Athletics Federations (IAAF) on hyperandrogenism among female athletes.
The new IAAF regulations, announced in April last year, were scheduled to come into effect on 1 November 2018 but the implementation was put off following Semenya's appeal in the CAS. It was agreed by the parties that an expedited hearing would be completed in February and the rules would come into force by at least 26 March. That would give athletes the IAAF regulated six-month gap required to lower and maintain their androgen levels in order to be able to compete in the World Championships in Doha in September. That is, provided of course, Semenya's appeal is thrown out and the IAAF regulations prevail. Right now, the dice looks loaded against the IAAF.
The issue of gender verification in sports, especially in athletics, is more than half a century old. Therefore, it is surprising that it has been projected and discussed through the past four years following the Dutee Chand episode in 2014 as something that had been sprung on the athletes all of a sudden.
From stripping athletes and examining genitalia to chromosome tests, karyotyping, buccal smear tests to hyperandrogenism regulations to the present DSD (Differences of Sex Development) rules, the process of gender verification has evolved in an effort to find a less intrusive, more acceptable form of verification to determine sex. It has been a delicate issue and remains one but the IAAF and the International Olympic Committee (IOC) and the other international federations are determined to find a way out.
The fact that confidentiality rules were readily flouted by the Sports Authority of India (SAI) in the Dutee Chand case eventually proved a blessing in disguise for not only the Odisha athlete but also for dozens of other hyperandrogenic athletes across the world. There was a groundswell of support for Chand from almost all corners of the world. A series of articles appeared in leading publications in the US, Europe and elsewhere, criticizing the IAAF regulations, backing the right of the athletes to retain their bodies they were born with, and raising the human rights issue. As Chand took on the IAAF in CAS, with legal help and expert opinion organized by Canadian and American activists, opinion seemed to have clearly swung against the IAAF.
The IAAF, despite its best efforts, could not convince the CAS panel that the hyperandrogenic female athletes derived an advantage that could be compared to that of the male athlete at the lowest end of the testosterone spectrum. Chand won the case, at least for that moment, and the IAAF was given two years to get back and convince CAS with more evidence that could decisively prove that the advantage was more than 10 per cent over non-hyperandrogenic female athletes.
The argument was — and this was brought out repeatedly by the media — that if there was an advantage, it was only comparable to the feet of an Ian Thorpe or the wingspan of a Michael Phelps or the long strides of an Usain Bolt; natural advantages gained through genetics and bestowed by God. That there were no classifications in sports related to the size of feet, wingspan or height was not discussed by those pressing for the abolition of the hyperandrogenism rules or most others. But there was always one classification, male and female.
Both Chand and Semenya often argued that they were born with what their advantages were perceived to be and they would not be prepared to change. Semenya reportedly went through a hormone suppression therapy and her timings slowed down to an extent she was no longer a force in the 800 metres, the event she had won in the World Championships in 2009 in an awe-inspiring 1:55.45, triggering a debate that led to her gender verification and subsequent absence for a period when she was barred.
Following the Dutee Chand verdict, Semenya has prospered, Today, the South African looks unbeatable. Whether it be World Championships or the Olympics, no one needs to look beyond Semenya for the 800m and she has also emerged as an equally formidable opponent in the 1500m. From September 2015, she has remained unbeaten through 29 finals in the 800m. Her 1:54.25 in Paris last year happens to be the fourth best on the all-time lists. Most observers feel that she is capable of bettering Czech Jarmila Kratochvilova's world record of 1:53.28 set in 1983 but is holding herself back for the time being.
The latest IAAF rules, which are based on research done on blood samples collected from the 2011 and 2013 World Championships, stipulate a testosterone level of 5nmol/L for female athletes compared to the 10nmol/L in the 2011 rules that were set aside by the CAS. The new rules are not applicable across the board in athletics but for a limited number of events — from 400m upwards to and including the mile, plus 400m hurdles and combined events having events between 400m and the mile. Chand has been spared since her forte is the short sprints, but Semenya is back in the centre of the controversy.
Some people have argued that there is a racial angle to IAAF's policy which looks directed solely against Semenya.
Katarina Karkazis, a bioethicist and activist and Senior Research Fellow at Yale University along with Rebecca Jordan-Young, an associate professor in Barnard College, Columbia University, have argued that the very fact that the IAAF dropped hammer throw and pole vault from the restricted events in the new rules despite the two events showing the highest advantage in the IAAF research at 4.53 per cent and 2.94 per cent respectively, showed the racial bias. According to them, the IAAF left these events and concentrated on middle-distance events only because the latter were dominated by athletes from the 'global south' for decades.
The IAAF study showed gains in 400m to be at 2.73 percent, that for 400m hurdles at 2.78 percent and in 800m at 1.78 percent. The CAS was looking for an improvement of 10 to 12 percent in order to be satisfied that the advantage would be closer to the male advantage and not merely that shown by athletes having better natural attributes.
Perhaps, for the first time since the controversy started, the IAAF has mentioned "testes" in a statement and that is significant even as it seems to have fallen short of the target indicated by CAS in projecting the perceived advantage for hyperandrogenic athletes. Surely, it would be illogical to argue that someone is a woman even as the source of her hyperandrogenism is shown as testes. The testes are responsible for producing testosterone in men. If it happens to be undescended (an abnormality at birth), an ultrasound could confirm the presence. Unless scientists prove that testosterone levels closer to male levels is being produced by adrenal gland or ovaries in a woman, the argument about testes, rarely made by IAAF or scientists so far, is hard to rebut. A condition called Androgen Insensitivity Syndrome (AIS) by which an individual is unable to utilise the testosterone produced in the body will negate the presence of testes and such athletes would be free to compete in the female section.
In responding to a report in The Times that claimed that the IAAF was going to argue that Semenya was biologically a male, the IAAF issued this statement: "The IAAF is not classifying any DSD (Differences of Sexual Development) athlete as male. To the contrary, we accept their legal sex without question and permit them to compete in the female category. However, if a DSD athlete has testes and male levels of testosterone, they get the same increases in bone and muscle size and strength and increases in haemoglobin that a male gets when they go through puberty, which is what gives men such a performance advantage over women. Therefore, to preserve fair competition in the female category, it is necessary to require DSD athletes to reduce their testosterone down to female levels before they compete at international level."
All along, the arguments from either side had focused solely on the testosterone levels and not on whether someone had testes — descended or undescended. If the law considered an individual as male or female there should be no further debate, the argument went.
How many countries have laws that require births to be registered within a particular time frame? How many countries have qualified doctors or nurses or midwives who attend to childbirth across the length and breadth of a country and can declare a baby to be a boy or a girl? Can there be ambiguities at birth? What happens then? Are the parents who brought up a child as a girl supposed to tell authorities during registration that there were ambiguities?
According to a UN statistical report in 1999 on India's Births and Deaths Act, "even after a span of 30 years of implementation of the provisions of this Act, the current statistics indicate registration figures as less as 55% of the births and 46% of the deaths. In terms of numbers, approximately 26 million births that take place in a year, out of which about 14 million only are registered."
Given that this is the condition in India, we can imagine that the state of birth registrations in African countries and other under-developed nations could be similar if not worse.
After Santhi Soundarajan was disqualified and stripped off her 800m silver medal the 2006 Asian Games in Doha, reports quoted her mother as saying that she got worried when her daughter did not have menstrual cycles well past the age of puberty. Santhi later failed to clear a test that she underwent to gain employment in the Railways. Had Santhi been provided medical help early in life, she could have continued without the worries and troubles that she later encountered. She attempted suicide after all the controversy but survived and was later provided employment by the Tamil Nadu government.
In a BBC programme in 2018, Chand was asked what the doctor told her when she had to undergo tests in 2014. Through an interpreter, she answered that the doctor asked, among other things, whether she had had regular menstrual cycles and her answer was 'no'.
There could be a variety of conditions that may present gender ambiguity and variations. This is what the anti-hyperandrogenism lobby has been arguing. Primarily, they say sex is not binary, meaning there cannot be just two groups of humans characterized by XX (female) and XY (male) chromosome. There may be XXY or XYY or XXX among others.
Sports bodies have argued that essentially, from the 1920s, competitions have been divided into two distinct groups, one for men and one for women. The IOC laid down the hyperandrogenism rules for the 2012 Olympics following the rules adopted by the IAAF in 2011. In the wake of the Dutee Chand verdict in 2015, the IOC decided to keep the hyperandrogenism rules in abeyance for the Rio Games and asked the international federations to pursue legal recourse to bring back some rules that may be able to satisfy the CAS as well as meet the requirements of the male and female classification.
The new "eligibility regulations for female classification (athletes with differences of sex development)" of the IAAF, if they pass the CAS' scrutiny, will not restrict hyperandrogenic athletes in domestic competitions or any event other than mentioned in the new regulations. There would be restrictions on world record ratification, however,
Flaws in the IAAF research done by two IAAF scientists, Stephane Bermon and Pierre-Yves Garnier, have been pointed out by three independent scientists — Roger Pielke Jr of the US, Ross Tucker of South Africa and Eric Boye of Norway — who recently brought out a paper to question the findings. They have questioned the statistics provided, the conclusions derived and the refusal of the authors and the British Journal of Sports Medicine which published the IAAF research — to part with the full research data.
(It may be recalled that Tucker was quoted by The Guardian as saying, "If this policy passes, then I would predict that Semenya will be five to seven seconds slower over 800 metres.")
The IAAF is confident it would succeed this time. It seemed to have made a mistake when it did not go back to the CAS with its findings and arguments in the Dutee Chand case as could have been expected, and instead declared new regulations last April which were challenged by Semenya.
In the Dutee Chand case, CAS agreed with many of the arguments that IAAF put forward including the one that sought a distinction between male and female, and the acceptance of endogenous testosterone as the "the best indicator of performance differences between male and female athletes". It also accepted that hyperandrogenic female athletes may have a competitive advantage over athletes with testosterone levels in the normal female range.
The normal female testosterone levels have been determined to be 0.1 to 2.8 nmol/L while that for males it is above 10 nmol/L. The 2011 regulations allowed leeway for female athletes to have up to 10nmol/L. Now it has been reduced by half to 5nmol/L. Athletes will be required to show that their elevated levels of testosterone are not because of androgen insensitivity, in which case they would derive no benefit at all from the raised levels.
The dangers of allowing a limit of 10nmol/L had been explained in an article for LetsRun by Dr Joanna Harper, a physicist at the Providence Portland Medical Centre. In September 2014, she wrote: "This decision has serious implications for all female athletes. Higher T is an advantage and no typical female will get anywhere close to 10 nmol/L without doping. Thus, the agency has set a bar for the dopers, and they will aim for it."
Dr Harper is a transgender athlete. She underwent surgery to transform herself from male to female. She cautions athletes about surgery but also says that there might not be too much of a difference in speed. "I'm sure that many readers would be sceptical about the loss of speed after surgery, but I have no doubt. You see, I've been there. I'm transgender; I competed for many years as male, then had surgery and competed as female afterwards. I went from running a 37-minute 10K as a 46-year-old man to a 42-minute 10K as a 48-year-old woman," she wrote in the article.
In order to obviously avoid the orchestrated protests of the activists, the IAAF has completely removed the requirement of surgery through gonadectomy to bring down testosterone levels. "In particular, surgical anatomical changes are not required in any circumstances," says a clause in the IAAF regulations.
It is not just Semenya's future that is at stake when CAS opens proceedings in Lausanne on Monday but the careers of many others, especially a few African middle-distance runners who have beaten everyone except Semenya since 2016.
In the Indian context, with Chand cleared to compete in the 100m and 200m, the wait would be to see whether any of the 400m runners or those in the middle-distance or hurdles events would come under scrutiny if the new regulations are accepted by CAS. Athletics insiders have been suggesting that a few hyperandrogenic female athletes in India have been groomed for higher competitions for the past couple of years.
Will CAS be swayed by media hype, public support and human rights considerations expressed by a UN group and others or will it strictly go by the evidence presented and the need to have some parameters to determine sex?
Some observers have suggested that in the long run if the stalemate persists with regard to hyperandrogenism or DSD rules, the only option left for international sports bodies would be to have a third category of competitors.