19th January 2018

CAS grants IAAF another extension in Dutee Chand case

The Court of Arbitration for Sport (CAS) has granted the International Association of Athletics Federations (IAAF) a second extension to a deadline that would declare its Hyperandrogenism Regulations as void, unless it submits supporting evidence. A CAS statement issued today reveals that on 29 September 2017, the IAAF submitted revised regulations and supporting evidence that would only apply to female track events of between 400 metres and one mile.

Dutee Chand, a 100m runner, challenged the 2011 Hyperandrogenism Regulations as unfairly excluding her from sporting competitions. Chand missed the Glasgow 2014 Commonwealth Games after being banned in July 2014, after the Athletics Federation of India (AFI) found that her androgen (testosterone) levels in serum were above the 10nmol/L permitted by the IAAF Regulations.

Today’s statement reveals that the CAS Panel has determined that the IAAF’s supporting evidence is designed to support the original Hyperandrogenism Regulations, as well as the revised regulations. ‘However, the Panel has made no ruling at this stage on the sufficiency of that evidence’, reads the statement.

On 24 July 2015, the CAS suspended the IAAF’s Hyperandrogenism Regulations for ‘no longer than two years’, adding that they would be declared void unless the IAAF could provide evidence proving the actual degree of performance advantage enjoyed by hyperandrogenic females due to their higher testosterone levels. However, when sufficient evidence failed to materialise, CAS appeared to change its definition of what it had asked the IAAF to do.

In a 28 July 2017 statement, the CAS said that it had originally suspended the Regulations to ‘give the IAAF the opportunity to provide the CAS with scientific evidence about the quantitative relationship between enhanced testosterone levels and improved athletic performance in hyperandrogenic athletes’. That statement also gave the IAAF until the end of September 2017 in which to file scientific evidence, otherwise the Regulations would be declared void – hence the revised regulations filed by the IAAF on 29 September.

Today’s CAS statement reveals that Chand argues that the IAAF has not complied with the 2015 CAS judgment, as it has filed evidence supporting revised regulations and not the original Hyperandrogenism Regulations. She has also argued that the revised regulations are inapplicable to her, as she is a 100m runner and therefore doesn’t compete in races between 400m and one mile.

The statement also reveals that, in agreement with both parties, the CAS has given the IAAF a choice as to whether it withdraws the original Hyperandrogenism Regulations. By 19 June this year, it must advise CAS about how it intends to implement its revised regulations and withdraw its original Hyperandrogenism Regulations. If it doesn’t do so, proceedings will resume before the same CAS Panel.

Layman’s terms

In simple terms, it appears that the IAAF has revised its Hyperandrogenism Regulations, which originally asserted that female athletes with testosterone levels in serum of above 10nmol/L should be prevented from competing, as this gave them an unfair performance advantage. These revised regulations do not apply to Chand, as they are only applicable to female track events of between 400m and one mile.

The CAS has accepted that evidence submitted in support of the revised regulations is also intended to support the original Hyperandrogenism Regulations, which do apply to Chand. However, the CAS Panel has not assessed whether this new evidence is sufficient to support the original Hyperandrogenism Regulations.

The Hyperandrogenism Regulations remain suspended for six months and in that time, the IAAF must advise the CAS how it intends to proceed with the revised regulations. If it does not withdraw the Hyperandrogenism Regulations within that period, then Chand’s case will resume in the CAS.

Detailed background

Testosterone is the main androgenic hormone, and is produced in significant quantities by both males and females. It is not exclusively a male hormone, and is produced by males in the testicles and females in the ovaries (and by the adrenal glands in both).

The basic logic behind the IAAF’s Hyperandrogenism Regulations (PDF below) is easy to follow. Anabolic steroids are banned in sport, and testosterone is an anabolic steroid. Hyperandrogenic females have elevated levels of testosterone, and therefore should be banned from sport, as they will have an unfair advantage.

However, the administration of anabolic steroids is banned in sport because people are adding synthetic testosterone to a person’s natural physiology. It is easy to understand how this could be seen as cheating.

However, the Hyperandrogenism Regulations seek to regulate the natural physiology of females in one area only – natural testosterone levels. It appears that no research was done into whether a person’s natural testosterone levels give them an advantage in sport.

The Dutee Chand case forced the IAAF to carry out research in support of its Hyperandrogenism Regulations. However the results didn’t support the principles underpinning the Regulations – namely, that natural testosterone levels of above 10nmol/L give females an unfair advantage.

The IAAF study

In March last year, the IAAF published a study involved observations of the performances of 2,127 elite athletes at the Daegu 2011 and Moscow 2013 IAAF World Championships; 795 males and 1,332 females. It found that women with the highest free testosterone (fT) levels performed ‘significantly better’ in the 400m, 400m hurdles, 800m, hammer throw, and pole vault.

Alongside the study, it published two additional pieces of supporting evidence, all of which are analysed in detail here. Perhaps surprisingly given Chand’s chosen discipline (100m), the IAAF study doesn’t discuss the impact of elevated testosterone on female sprinters, only male sprinters. It states that ‘male sprinters showed higher values for fT than male athletes in other events’. However, the study concludes that despite these higher fT levels in male sprinters, no pattern of advantage from elevated testosterone levels was found in any of the male events.

The IAAF study points out that in the Chand ruling, the CAS found that there was ‘evidence and opinion to support the conclusion that endogenous [synthetic] and exogenous [natural] testosterone have identical physiological effects’. The study also points out that the CAS found ‘possessing high levels of testosterone, and thereby increased LBM (lean body mass)…creates a competitive advantage’.

Whilst it may be true that endogenous and exogenous testosterone have identical physiological effects, what is less certain is the degree of advantage somebody with elevated endogenous testosterone enjoys. If you add exogenous testosterone to your body, you are artificially boosting your androgen levels, which is doping. A performance advantage can be expected, as your body has something that it didn’t before.

A person with elevated endogenous testosterone has not added anything new to their body. They are naturally gifted with higher testosterone in the same way that Venus or Serena Williams, Lindsey Vonn or Nicole Cooke are naturally gifted through their unique physiologies to compete in their chosen sports.

The study (PDF below) doesn’t mention 10 nmol/L, or how the IAAF arrived at that particular limit. As can be seen from the picture on the right, the CAS’s main area of concern was whether the degree of advantage from that endogenous testosterone was significant enough to equate the advantage that a male athlete has over a female athlete. The CAS gives this advantage as between 10% and 12% (click here for the full 161-page 2015 judgment). The IAAF study found that female athletes with elevated testosterone enjoyed an advantage of between 1.78% and 4.53% in five athletics disciplines, none of which are Chand’s.

Only the IAAF and Chand’s legal team have seen the new evidence presented to the CAS on 29 September last year. However, the evidence above provides a clue as the reason why they would only apply to female track events of between 400 metres and one mile. The IAAF has been able to show that elevated natural testosterone levels provide a small performance advantage in certain female events, but not to the degree required by CAS to equate the advantage that a male athlete has over a female.

Conclusion

The irony behind Chand’s case is that it is understood that she has Androgen Insensitivity Syndrome (AIS). This means that she is resistant to the effects of testosterone, so she cannot enjoy any advantage at all from the extra testosterone produced by her body. She has been sanctioned for enjoying a performance advantage, but in fact she enjoys no performance advantage at all.

The IAAF’s revised regulations are not applicable to men, only to women in certain athletic disciplines. The CAS does not mention whether it has taken into consideration whether such regulations are ‘fair’. For example, has a comparison been conducted to show that the advantage that females in these events gain from their natural testosterone levels is greater than that which men with elevated testosterone enjoy?

Sport has a difficult problem in determining sex in order to split people into the binary ‘male’ and ‘female’ categories that it operates. Although they were dressed up as protecting young females from a ‘risk to health’ (no such risk was ever defined), the reality is that the Hyperandrogenism Regulations were drafted to replace the IAAF’s Gender Verification Policy, after outrage at its use on a young South African athlete. A return to such a policy would not be politically acceptable for anyone concerned.

However measuring natural testosterone levels does not determine somebody’s gender with any greater accuracy than measuring the size of somebody’s hands or feet. A better method needs to be found.

Utilising one’s natural advantages to the greatest possible effect is part of the ethos of sport. The IAAF’s regulations in this area seek to regulate the natural physiology with which people are born. As this case develops, it will be interesting to see how the IAAF will demonstrate – even in the narrow category of events its regulations now appear to cover – that natural testosterone provides such an unfair advantage that women’s natural physiology should be medicated. It will also be interesting to see whether research has been conducted into the long term effects of such a policy.

The submission of revised regulations covering a narrow range of female events is a significant climb down for the IAAF. How it will protect females from the significant health risks posed by hyperandrogegism appears to have been forgotten. However, it is still attempting to assert that sport should regulate the natural physiology of females, based on the logic that elevated natural testosterone equates a similar advantage to that which a man has over a woman. Whether the CAS is prepared to accept such a proposition remains to be seen.

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