SII Focus 17th June 2020

Doping samples can be used for gender verification under 2021 Code

Detail from the approved 2021 Code…

The 2021 World Anti-Doping Code specifies that samples taken from athletes for anti-doping tests can also be used for gender verification purposes. ‘An International Federation could use data from a Doping Control test to monitor eligibility relating to transgender and other eligibility rules’, reads Footnote 115 to Article 23.2.2 of the final version of the 2021 Code, which was published by the World Anti-Doping Agency (WADA) yesterday. A footnote specifying that samples can be used in such a way is not featured in the 2015 Code. 

The same footnote (different number due to removal of footnotes) from Draft 3 of the Code…

WADA’s 2021 Code archives indicate that the text specifying that anti-doping samples can be used in this way appears to have been added after Draft 3 of the 2021 Code was published. The text specifying that doping samples can be used to verify gender doesn’t appear in Draft 3, yet it does appear in the Final Draft to be Approved at the 2019 World Conference on Doping in Sport. The change doesn’t appear in any of the ‘redline’ versions or ‘Summary of Major Changes’ documents published by WADA. It would therefore appear that the text was inserted without full consultation with WADA’s stakeholders.

The same footnote from the ‘Final Version to be Approved’ presented at the 2019 World Conference on Doping in Sport…

“There’s always been a provision in the Code – and you can find it in the 2015 Code – that you can use anti-doping samples for disciplinary and health purposes”, explained Richard Young of Bryan Cave Leighton Paisner, who led the drafting of the Code, when questioned about this at the 2019 World Conference on Doping in Sport, where the Final Draft was approved by the WADA Foundation Board and Executive Committee. “It was brought to our attention that yes, there is a new requirement for testing which is the gender verification regulation which says that the testosterone level has to be below ‘x’ for a period of time. That would seem to be the same type of legitimate use as safety rules, health reasons and code of conduct rules. You probably could have done it under the existing Code language, but why not put it in writing?”

Cave didn’t say who had brought the requirement for gender verification to WADA’s attention. It is not known who made the recommendation, or if it came from WADA’s extensive consultation process regarding changes to the Code.

During Caster Semenya’s challenge to World Athletics’ Differences of Sex Development (DSD) Regulations at the Court of Arbitration for Sport (CAS), concerns were raised that athletes had not given consent for their samples to be used in this way. Jonathan Taylor QC represented World Athletics in the Caster Semenya case. 

Taylor is a Partner at Bird & Bird, where he and Liz Riley drafted the DSD Regulations for World Athletics. Taylor also drafted the Hyperandrogenism Regulations, the forerunner to the DSD Regulations. Until January this year, Taylor was Chair of WADA’s Compliance Review Committee (CRC) and spoke at the 2019 World Conference on Doping in Sport. Riley, Counsel to the International Paralympic Committee (IPC), is a member of the WADA Code drafting team, and also spoke at the 2019 World Conference on Doping in Sport.

The duo also advised the International Olympic Committee (IOC) on its Transgender Rules. Taylor and Riley were participants in the IOC’s November 2015 Consensus Meeting on Sex Reassignment and Hyperandrogenism, which resulted in the IOC’s Transgender Guidelines. 

Hunt the ‘male’

A danger is that by explicitly specifying that anti-doping samples can be used in such a way, the Code can be used to target athletes with high testosterone competing in the female category for medical intervention. World Athletics doesn’t have a great track record in this area, and used performance data from athletes medically damaged due to its Hyperandrogenism Regulations to prop up the DSD Regulations. 

Four young athletes were told that lowering their testosterone levels would help them compete at the London 2012 Olympics. Following horrific medical interventions, we know that at least two will never compete again and have suffered significant health issues. The four athletes were advised by surgeons implementing the IAAF’s Hyperandrogenism Regulations – the forerunner to the DSD Regulations – which involved 30 cases between 2011 and July 2015. 

The Chand ruling confirmed the number of cases dealt with under the Hyperandrogenism Regulations…

When medical intervention requires synthetic testosterone but sport’s rules do not permit it, this can also make people ill. This was the case for Kristen Worley and Sloan Teeple, two XY karyotype athletes. Sport’s regulations forced Worley, a transitioned XY female, to lower her testosterone levels below what was required by her physiology, causing her significant health issues. Teeple, a doctor specialising in low testosterone who also suffers with the condition, was not permitted synthetic testosterone to bring his hormonal levels back up to normal, which also caused him health complications. 

Sporting federations are faced with a number of Guidelines in this area, some of which are outlined above, outlining that high endogenous (natural) testosterone is the enemy of female sport. World Athletics added to this ‘witch hunt’ – perhaps unintentionally – by terming DSD athletes as ‘biologically male’ in the Semenya case. 

World Athletics surprised Semenya’s defence team by stating that its argument had always been that 46 XY DSD athletes hold a performance advantage over XX karyotype athletes in events run between 400m and one mile due to their ‘biologically male’ development from puberty onwards. I termed this a ‘legacy advantage’, since World Athletics’ contention is that such an advantage manifests itself over time, from puberty onwards.

The exclusion of XX karyotype athletes from the DSD Regulations allowed the IAAF to argue that their purpose is to mitigate any advantage held by ‘biologically male’ athletes in the Restricted Events covered by the Regulations. This mitigation of the ‘legacy advantage’ occurs by requiring DSD athletes who compete in the Restricted Events to lower their endogenous (natural) testosterone to below 5nmol/L. It is medicating athletes in the present for an advantage they have developed in the past.

It could not make this argument when XX karyotype athletes were included, as they originally were when the DSD Regulations were published on 23 April 2018. Yet the inclusion of XX karyotype – or ‘female’ – athletes in the original Regulations undermines World Athletics’ argument that the DSD Regulations were always about excluding ‘biologically male’ athletes. 

The IAAF has consistently argued that it is not ‘classifying’ DSD athletes as male. It is inclusive, as although it defines DSD athletes as ‘biologically male’, it allows them to compete in its female category, providing they comply with the DSD Regulations if they compete in running events run between 400m and one mile.

It is important to point out that the DSD Regulations only concern a very narrow range of events. But Transgender Guidelines promulgated by the IOC and World Athletics don’t. Now that the Code specifies that any doping sample can be used to ascertain if somebody is eligible for its female category, there is a significant danger that sporting federations will perceive that they have been given the green light to use doping samples and testosterone levels to ‘hunt the male’.

Dogged determination

As stated, we do not know how or why the provision explicitly stating that doping samples to be used for gender verification purposes appeared in the Code. However, we do know that World Athletics has been doggedly determined to get its DSD Regulations over the line, as it has in gathering support for its Transgender Guidelines, which build on the IOC’s Transgender Guidelines.

World Athletics was invited to a debate on its DSD Regulations at the 2019 PlayTheGame conference but declined to take part. Instead it flew a Counsel to Colorado Springs to attack the presenters (of which I was one), and distributed a pre-written statement containing a number of misrepresentations.

An express written statement in the Code that doping samples can be used for gender verification purposes certainly won’t do the regulations of World Athletics or the IOC in this area any harm. It also puts to bed any future arguments that athletes had not consented for their doping samples to be used in this way – an issue brought up in the Semenya case.

But there is no guarantee that other sporting federations will treat 46 XY DSD athletes with the same compassion that World Athletics affords its ‘biologically male’ females. FIFA has still not removed its Gender Verification Regulations from its internet site, despite promising to do so at PlayTheGame last year. 

FIFA’s Regulations (PDF below) mandate that each of FIFA’s 211 Member Associations must ‘ensure the correct gender of all the players to be considered for such nomination by actively investigating any perceived deviation in secondary sex characteristics and keeping complete documentation of the findings’. It allows any Member Association or appointed Medical Officer to question a female player’s gender which, if supported by sufficient evidence, requires the player to undergo a physical examination. Article 7 mandates that any breach of the Regulations will be sanctioned by FIFA’s Disciplinary Committee.

Following the inclusion of Footnote 115 to Article 23.2.2 of the Code, it would appear that all a Member Federation must do is use a doping sample as evidence of high testosterone, and a player will be forced to undergo a physical examination. This is only a very small step away from the dreaded gender tests which sport should consign to the past. It would appear that Footnote 115 to the Code is facilitating a backwards step towards the bad old days.

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