SII Focus 10th July 2020

Human Rights Council urges States to prohibit DSD Rules

A Report (PDF below) from the Human Rights Council has urged United Nations (UN) member States to ‘prohibit the enforcement of regulations that pressure athletes to undergo unnecessary medical interventions as a precondition for participation in sport’. World Athletics’ Eligibility Rules for the Female Classification (Athletes with Differences of Sex Development) require athletes covered by the Rules to medicate themselves in order to compete.

The UN first urged World Athletics to withdraw its DSD Rules in 2018. In 2019, World Athletics’ response was to accuse the UN of not understanding its Rules. 

‘It is clear that the author is not across the details of the IAAF regulations nor the facts presented recently at the Court of Arbitration for Sport’, wrote World Athletics in a statement to the BBC, after the UN Human Rights Council reiterated its concerns in March last year. ‘There are many generic and inaccurate statements contained in the motion presented to the UN Human Rights Council so it is difficult to work out where to start’. It has not responded to the Human Rights Council’s above Report.

In its ruling on Caster Semenya’s challenge to the DSD Rules, the Court of Arbitration for Sport (CAS) found that they were discriminatory, but necessary for fair competition in female sport. In a media statement, the ruling CAS Panel asked World Athletics to consider deferring the application of the Rules to the 1,500m and one mile events due to lack of evidence.

World Athletics refused. ‘We have enough evidence from the field across all the disciplines covered by our Regulations so they will remain included in the Regulations’, responded a World Athletics spokesperson in an email. ‘We may have more data in the 400m and 800m, but CAS’s decision clearly states that our regulations, as they stand, are reasonable, necessary and proportionate so we will keep them as they are and administer them with care and compassion. Like all our rules and regulations they remain under review.’ 

The DSD Rules

The Rules (PDF below) cover athletes with one of five listed DSDs competing in international events run between 400m and one mile in its female category, if their endogenous (natural) testosterone levels are above 5nmol/L and have an ‘androgenising effect’ (i.e. if that testosterone is taken up by their androgen receptors and boosts their physiology). Athletes who meet these conditions must use hormonal contraceptives to reduce their testosterone levels to below 5 nmol/L for six months prior to competing, and must maintain testosterone levels at below 5 nmol/L in order to continue competing.

The logic behind the DSD Rules – explained during Semenya’s challenge to them at the CAS – is that DSD athletes have an unfair advantage due to the developmental action of elevated testosterone on their XY karyotype physiology from puberty onwards. World Athletics argues that the Rules are inclusive, as they only cover a narrow range of events and allow DSD athletes to compete in them if they undergo medical intervention.  

Yet they seek to reconcile a ‘legacy advantage’ – which World Athletics argues that DSD athletes have developed over time – by requiring medical intervention in the present. This does appear to qualify as one of the ‘unnecessary medical interventions’ that the Human Rights Council warns States to prohibit. Athletes covered by the Rules are generally not unwell.

‘Affected athletes can either (a) take a daily oral contraceptive pill; or (b) take a monthly injection of a GnrH agonist; or (c) have their testes surgically removed (a ‘gonadectomy’)’, reads Briefing Notes on the Rules published by World Athletics. ‘It is their choice whether or not to have any treatment, and (if so) which treatment to have. In particular, the IAAF does not insist on surgery. The effects of the other two treatments are reversible if and when the athlete decides to stop treatment. Importantly, lowering testosterone in one of these ways is the recognised ‘gender-affirming’ standard of care for any individual (athlete or not) who is 46 XY but has a female gender identity.’

Scientific evidence & athlete experience

The Report was presented to the 44th session of the Human Rights Council between 15 June and 3 July 2020. It again highlights that questions have been raised about the accuracy of the scientific evidence used to underpin the DSD Rules.

‘Questions have also been raised regarding the selective use of scientific evidence, as the underlying claim that higher natural testosterone provides some women with a competitive advantage over other women, and the magnitude of any performance difference, remains unsettled in the scientific literature’, it argues, citing an academic article. There is more information about scientific inaccuracies in the evidence used to support the DSD Rules here; here; and here. In addition, World Athletics used data from athletes medically damaged by its Hyperandrogenism Regulations – the forerunner to the DSD Rules – to prop up the DSD Rules.

The Human Rights Council Report adds meat to the bones. It explains that athletes who have been affected by regulations in this area include María José Martinez-Patiño, who successfully challenged her exclusion from the Spanish Olympic team in 1985 for failing a gender test on the grounds that she had Androgen Insensitivity Syndrome (AIS), a condition in which the human physiology doesn’t respond to testosterone, either natural or synthetic. 

As explained, the logic of the DSD Rules is that athletes have an advantage due to the action of elevated testosterone on their physiology from puberty onwards. María José Martinez-Patiño’s body couldn’t process testosterone yet despite this apparent handicap, she developed into an elite athlete. The Report also mentions Ewa Kłobukowska, who failed a gender test in 1967, had three world records rescinded, and was banned from competing. 

‘The most well-known women affected in the last decade, however, have been from sub-Saharan Africa and South Asia, including Santhi Soundarajan and Dutee Chand (India), Caster Semenya (South Africa), Annet Negesa (Uganda), Margaret Wambui (Kenya) and Francine Niyonsaba (Burundi)’, reads the Report. ‘Reports of these and other athletes from the same regions undergoing investigations and/or medically unnecessary and potentially harmful procedures are being published and investigated, as well as challenged by the women themselves’.

Soundarajan twice attempted suicide after being ostracised upon return to her remote Indian village after being stripped of a 2006 Asian Games Silver medal after failing an Olympic gender test. In 2007, she ingested a veterinary poison. Due to her ostracisation, the only work available to her was at a brick kiln, where she slept in a makeshift hut. She attempted suicide again in 2013. 

Soundarajan gained a coaching qualification in 2014, after the Indian Sports Ministry agreed to fund her education. She has now started her own athletics foundation in Tamil Nadu, to specifically train Tamil youth. 

The Hyperandrogenism Regulations were the forerunner to the DSD Rules. The CAS suspended them for two years after they were challenged by Dutee Chand. Perhaps ironically, her case led to the DSD Rules. Despite ruling that the Hyperandrogenism Regulations were not supported by sufficient scientific evidence, the CAS allowed World Athletics to terminate Chand’s case against them by submitting the DSD Rules and new evidence, after twice extending a deadline for World Athletics to provide such evidence. 

Dutee Chand was told she could compete if she went for surgery…

World Athletics argues that Chand agreed to this. Why she would do so is not clear. A CAS statement outlines that Chand was not happy about World Athletics submitting new evidence to support new Rules rather than the Regulations she was challenging. However, it also outlines a consent order that specifies: ‘If the IAAF withdraws the Hyperandrogenism Regulations and/or replaces them with the proposed draft regulations it has submitted, then these proceedings will be terminated’.

“They approached me saying that my body had a hormonal problem and that I have to undergo surgery”, Chand told journalists in a documentary produced by journalists for ARD last year (video below). “They said that I could return to the track provided I went for surgery or else I would not be allowed to run again. I had no problems, but I was being advised to take medicines or undergo surgery. But when I have no health issues and my running is also not affected, why should I choose any of these options? So I decided to challenge the rules.”

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

The CAS ruling in the Chand case also outlined that World Athletics dealt with 30 cases under the Hyperandrogenism Regulations from 2011 until July 2015, when they were suspended. Whether all of these athletes were told that they should undergo surgery is unclear. However four young athletes (18, 20, 20, and 21) were told that they needed to lower their testosterone levels in order to compete at the London 2012 Olympics, and a gonadectomy (removal of internal testicles) would help them do that. 

The above documentary illustrates the severe health complications that resulted from such surgery. One of the athletes was Annet Negesa, who is mentioned in the Human Rights Council Report as being ‘affected’ by sex testing regulations. Her experience was much worse than that.

She didn’t receive any contact from World Athletics or local physicians post surgery, and became so sick she thought she was going to die. She now suffers with joint pain and has issues with standing for long periods. Of course, competitive sport is impossible for her. Caster Semenya – who is also mentioned in the Human Rights Council Report as being ‘affected’ by sex testing regulations – told the documentary makers that she was also advised to undergo surgery.

The Sports Integrity Initiative first reported on the surgery carried out on the four young athletes ahead of the London 2012 Olympics in 2015. World Athletics initially denied that such surgery had taken place. However, a 2013 Study (PDF below) showed that it did take place. One of the authors of that Study is Dr. Stéphane Bermon, a member of World Athletics’ Health and Science Department.

As previously mentioned, a drop in performance reported by three of the four medically harmed athletes was used to prop up the DSD Rules,  as evidence that reducing endogenous testosterone reduces performance. Amazingly, it is understood that the performance of the fourth athlete was not included because she – remarkably – showed an improvement in performance.

The Human Rights Council Report also mentions Margaret Wambui of Kenya and Francine Niyonsaba of Burundi as being ‘affected’ by sex testing regulations. In a video (below) on the Olympic Channel, Wambui, a Bronze medalist in the 800m the Rio 2016 Olympics, explains that running was how she made a living. “I became a victim, because the rule affected me”, she explains. 

“I could do other things. Maybe try something else. But taking drugs, that is not an option for me”, she continues, referring to the World Athletics requirement to medicate in order to reduce her testosterone levels. “If it’s moving up to long distance or scaling down, I would consider that. But drugs? No!

“I can only ask one thing of those making the decisions. If it was your sister in this situation, and she was the sole breadwinner in your family, would you still take the same decision? If you wouldn’t, then don’t implement the Rule. Remember; no one chose to be born the way they are.”

Niyonsaba won Silver ahead of Wambui and behind Caster Semenya in the 800m at the Rio 2016 Olympics. “For me, it’s about discrimination”, she says in a video with a similar story for the Olympic Channel (below). “I didn’t choose to be born like this”.

‘Additional harms stemmed from the implication that the women need to be “fixed” through medically unnecessary interventions with negative health impacts’, points out the Human Rights Council Report. ‘As Caster Semenya has stated, “I have been subjected to unwarranted and invasive scrutiny of the most intimate and private details of my being”’. 

Human rights

As might be expected, the Human Rights Council Report is unequivocal that the DSD Rules represent an infringement of the right for athletes with a DSD to compete. ‘The implementation of female eligibility regulations denies athletes with variations in sex characteristics an equal right to participate in sports and violates the right to non- discrimination more broadly’, it outlines.

The Report also outlines that the DSD Rules may violate six other human rights. It highlights as as the Rules ‘leave athletes with the choice of either undergoing these intrusive medically unnecessary assessments or being subjected to treatments with negative impacts on their health and well-being’, which could be considered a violation of the right to freedom from torture and other cruel, inhuman or degrading treatment or punishment.

As highlighted by the experience of Niyonsaba and Wambui in losing their main source of income, the Report highlights that the DSD Rules ‘may constitute a barrier limiting disproportionally equal access to work for athletes with variations in sex characteristics’. This may represent a violation of the right to work.

As highlighted by the experience of the four young athletes ahead of the London 2012 Olympics, the Report highlights that the DSD Rules may ‘create the risk of unethical medical practice, particularly when the informed consent of the person concerned is not required, and violations of the general prohibition on medically unnecessary procedures’. It points out that this could be considered a violation of the right to the highest attainable standard of physical and mental health. The Report points out that ‘informed consent to any medical intervention goes beyond mere acceptance and must be voluntary and sufficiently informed in order to protect human dignity and autonomy’.

In addition, the Report points out that the DSD Rules could be considered a violation of the right to sexual and reproductive health, as they interfere with hormones. The DSD Rules may also violate the right to privacy, as athlete absence from events would lead to speculation, rendering World Athletics’ promises that procedures will be kept confidential as meaningless. It also points out that the DSD Rules may violate the right to respect for the dignity, bodily integrity and bodily autonomy of the person, as they take away the ability of a person covered by the Rules to make choices about their bodies.

Interestingly, the Report praises FIFA for beginning to ‘engage with human rights norms’. However, 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.

Detail from the approved 2021 Code…

The Report doesn’t consider that modifications have been made to the 2021 World Anti-Doping Code so that samples collected for anti-doping purposes can now also be used to verify compliance with rules such as the DSD Rules. In other words, under the Code, World Athletics would not need to gain additional consent to use a sample collected for anti-doping purposes to measure testosterone levels, and declare an athlete ineligible under the DSD Rules.

Autonomy of sport

The autonomy of sport is taken to refer to the idea that sport has certain characteristics that set it aside from the normal rules of law in order to guarantee a ‘level playing field’, which in itself is a nebulous concept. The Human Rights Council Report blames that lack of protection of human rights in sport on its autonomy to set its own rules.

Sport prevents recourse to ordinary courts of law based on the idea that this protects the ‘level playing field’, ensuring that all athletes are treated the same way. The CAS is the final arbitration body for all disputes within sport, and is supposed to treat all athletes fairly. This concept has recently been eroded by analysis of the Sun Yang case1.

The origins as to why recourse to ordinary courts is prohibited lie in a another nebulous concept called the ‘specificity of sport’. According to the European Commission, the specificity of sport ‘refers to the inherent characteristics of sport which set it apart from other economic and social activities, as recognised in the amended Treaty of the European Union in 2009’. The Treaty on the Functioning of the European Union (TFEU) states that the European Union ‘shall contribute to the promotion of European sporting issues, while taking account of the specific nature of sport, its structures based on voluntary activity and educational function’.

The problems that this arrangement can result in are outlined in the Human Rights Council’s Report. ‘The Olympic Charter and the statutes of most international federations provide for the internal resolution of disputes, with appeals permitted exclusively to the Court of Arbitration for Sport’, reads the Report. ‘Therefore, if national federations and their athletes, among others, wish to be recognized participants in their respective sport, they must generally agree to forego recourse to national courts in favour of private arbitration before that Court. Such mandatory arbitration shields the global sports system from regulation by national legal systems, which is where human rights are typically protected.

‘IAAF asserts that the Court of Arbitration for Sport “is competent to rule on all legal claims, including human rights claims”, and that therefore its decision in the Semenya case “should be respected and enforced by the national courts”. For this reason, IAAF maintains that it “would defend any claim that was made in any national or international forum … (including if necessary on jurisdictional grounds)”. This type of position, combined with the limited and inconsistent application of international human rights norms and standards to disputes before the Court of Arbitration for Sport and the fact that most Court arbitrators lack human rights expertise, poses a serious challenge to access to effective remedies for athletes whose human rights are alleged to have been violated.’

Fuel to the fire

As its history reveals, the CAS was originally established to resolve disputes ‘directly or indirectly related to sport’. The increasing commercialisation of sport means things have moved on since 1984, when the CAS was established and since 2009, when the TFEU recognised the ‘autonomy of sport’. 

It is perhaps unreasonable to expect the 21 Arbitrators listed on the CAS’s internet site to be experts on the many issues that cross their paths today, just as it would be to expect lawyers to be experts on all areas in which they adjudicate. Both lawyers, World Athletics and CAS know that they must respect internationally recognised norms and standards.

World Athletics has doggedly dismissed criticism of its DSD Rules on more than one occasion2. There is no question that World Athletics thinks that it is doing the right thing by requiring athletes to medicate themselves in order to compensate for an advantage developed from puberty onwards (which, perhaps conveniently, cannot be measured). 

As such, whether the UN Human Rights Council Report will make any difference to the DSD Rules appears highly unlikely. Sport has illustrated on more than one occasion that it sets the Rules, and athletes must abide by them.

However, the logic behind the DSD Rules does appear flawed. As mentioned, they require an athlete to medicate their naturally occurring hormones in order to compensate for an advantage they have developed due to the action of testosterone on their physiology from puberty onwards, over time. 

Worley succeeded in holding sport to account for her treatment at the Ontario Human Rights Tribunal…

The advantage being regulated is developmental. Yet athletes are required to medicate in the present. This approach has caused health problems not only for the athletes highlighted above, but also for Kristen Worley and Sloan Teeple who – like DSD athletes – are XY karyotype and were required to reduce their endogenous testosterone by sport.

Today, sport’s autonomy is under threat. The World Anti-Doping Agency (WADA) recently responded  to a US Office of National Drug Control Policy (ONDCP) Report calling for an overhaul of anti-doping governance by producing a lengthly annotated response, attacking inaccuracies in the Report (there were also inaccuracies in WADA’s Response). 

Concerns about the DSD Rules have been continually raised since they were first drawn up in 2018. Perhaps now is the time for World Athletics to listen. Ignoring the Human Rights Council’s concerns could only embolden those calling for a change to sport’s closed regulatory system. In such an environment, is it worth taking the risk?

Footnotes

1. See https://www.sportsintegrityinitiative.com/sun-yang-systematic-prejudice-against-athletes-sport-artbitration; https://www.sportsintegrityinitiative.com/deep-state-deep-inside-olympic-sports-sun-yang-wada/; https://www.sportsintegrityinitiative.com/should-changes-follow-sun-yangs-eight-year-ban/; https://www.sportsintegrityinitiative.com/why-the-sun-yang-decision-should-be-overturned/

2. https://www.sportsintegrityinitiative.com/ptg2019-flaws-in-the-iaafs-response-to-semenya-presentations/; https://www.sportsintegrityinitiative.com/iaaf-response-article-differences-sex-development-regulations/; https://www.sportsintegrityinitiative.com/sebastian-coe-defends-iaafs-dsd-regulations/

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