Demonising Justin Gatlin
13th September 2015
My experiences are that sports organisations rarely like to engage in public. However, this norm seems to be evolving, perhaps a motivated both by necessity and a by a newer commitment to engagement among forward-thinking sports administrators.
The International Association of Athletics Federations (IAAF), via one of its lawyers, Jonathan Taylor of Bird & Bird, has written a lengthy response to a Sports Integrity Initiative article on proposed new testosterone regulations. That Sports Integrity Initiative commentary can be found here. I am less interested about the back-and-forth than I am in what the IAAF response says about their proposed regulatory approach to testosterone regulation.
In this post I offer a few thoughts on the new IAAF arguments and applaud their commitment to public engagement. In that spirit, if Mr. Taylor or IAAF wish to comment here, I’m happy to host their views. Sport is better through such engagement, even (especially) when there is disagreement that can be clearly articulated.
The answer here is clearly ‘yes’. Sports organisations routinely segregate athletes by biological characteristics, most obviously by weight classes in boxing and wrestling and, of course, systematically in the Paralympics.
There are two logical fallacies here that are worth discarding up front, one typically advanced by opponents to T regulations and one advanced by IAAF in support of T regulations. They are:
• Fallacy #1: Governing bodies do not (generally) regulate other ‘natural advantages’ so IAAF cannot regulate T.
• Fallacy #2: Governing bodies do (sometimes) regulate other ‘natural advantages’ so IAAF should regulate T.
The issue here is not going to be settled by invocation of general principles, but rather, the specific question of whether it is appropriate for IAAF to regulate women’s athletics based on endogenous levels of T across four events. What a big picture view can tell us, however, is that biological regulation of athletes in the disciplines of athletics is incredibly unique, and T would be the only biological characteristic that is regulated in all of the Olympic sport of Athletics. This fact does not determine an outcome, but it should set a high bar for approving any such regulatory action.
This is tricky. The answer however is clearly ‘no’.
The T regulations are an effort to regulate the male/female classification according to a biological characteristic. But at the moment, and for much of recent years, there has been no such regulation in place. Thus, the male/female is not regulated at present according to biological characteristics.
• Do men and women have different biological characteristics? Of course.
• Are men typically faster and stronger? Of course.
Male and female are genders with a strong, but not perfect, correlation with the biology of sex. One important reason for this imperfect correlation is that male and female are discrete categorisations in sport competition, whereas the biology of sex is not discrete.
Taylor observes that the parties to the Chand case (2015, here in PDF) all agreed that it is appropriate to distinguish male and female classifications because males enjoy such a performance advantage that virtually all females would be excluded from elite competition. This issue need not be debated.
But none of this helps in resolving questions about T regulation. The challenge at hand is to determine eligibility for participation in male and female classifications. To state that males and females compete in different classifications is simply to set the stage. We should beware circular reasoning.
Right now, society outside of sport does all the work of determining who is female and who is male for purposes of elite sports competition. This work embodies complex social processes that integrates considerations of biology, culture, politics, law and more into determining who gets classified as female and who as male. IAAF is not satisfied with how society is doing this work and is seeking to create its own regulations (as a comparison, not long ago the sport of gymnastics decided that it was unhappy with how society was accounting for the ages of its athletes and so internalised age certification as a regulatory process).
But make no mistake, at present neither males nor females are classified according to biological characteristics by the IAAF. That is what the proposed regulations are about.
The short answer is ‘no’. There is simply no single biological characteristic – chromosomes, hormones, whatever – that uniquely and unambiguously distinguishes the biological sexes. This point is not particularly controversial, even by IAAF.
However, IAAF appears to be somewhat conflicted on this topic. The issues here are not male vs. female, but female vs. female. This is clearly explained in the CAS Chand decision which (at 51) noted: ‘the Regulations do not police the male/female divide but establish a female/female divide within the female category’.
The key issue here is not whether some females have biological characteristics more typically found among males, but whether those specific biological characteristics are clearly associated with a performance difference between females of a magnitude similar to those typically observed between males and females. Please read that sentence again.
In his response, Taylor introduces a biological characteristic into the debate that is not mentioned in the IAAF T regulations: testes. He writes:
‘the physical advantages enjoyed by male athletes are due to the fact that they have testes that produce testosterone in amounts that circulate in serum in the range 7.7 to 29.4 nmol/L, whereas female athletes have ovaries that produce much lower levels of testosterone, in the range 0.12 to 1.79 nmol/L’. (author: Based on a forthcoming, but not yet available paper by Handelsman et al.)
Males have testes, females have ovaries. OK, got it. Taylor then writes:
‘Due to conditions referred to as ‘differences in sex development’ (most often, 5-α reductase deficiency, or partial androgen insensitivity), an XY baby’s testes may not descend from the abdomen, so that it presents on birth with female or ambiguous genitalia, and so may be assigned the female sex. At puberty, however, the testes start producing the much larger levels of testosterone mentioned above, which (unless the XY female is completely androgen-insensitive) will have an androgenising effect on her body and will increase her circulating haemoglobin, in the same way as happens to an XY male at puberty.’
So we have an individual with a ‘condition’ called DSD (difference in sex development) who has testes but ‘may be assigned the female sex’. At puberty her body is responds the same way as an XY male. So is Taylor implying that she is actually a male (i.e., with testes)?
Taylor further writes: ‘the ‘natural physiology’ of most DSD athletes includes male gonads (testes) that produce levels of circulating testosterone not in the normal female range (0.12 to 1.79 nmol/L in serum) but in the normal male range (7.7 to 29.4 nmol/L), producing (if the athlete is not androgen-insensitive) lean body mass and levels of circulating haemoglobin well above the normal female range and rather in the normal male range’.
The language here is important (and confused). ‘Male gonads’ – can individual body parts have their own gender? Can a woman have male body parts? Can a man have female body parts? If IAAF wants a gonad policy, they should call it a gonad policy. The presence of gonads/testes is completely irrelevant in the proposed regulations, as it is focused on testosterone levels. This issue is important, because the proposed IAAF regulations stress that they are not seeking to classify athletes as male or female:
‘These Regulations exist solely to ensure fair and meaningful competition within the female classification, for the benefit of the broad class of female athletes. In no way are they intended as any kind of judgement on or questioning of the sex or the gender identity of any athlete.’
Taylor’s introduction of testes would seem to betray this claim. He writes:
‘If it is not fair and meaningful for a female athlete to have to compete with a male athlete whose gonads produce 10-30 times more testosterone than she does, so too it is not fair and meaningful for that female athlete to have to compete with a DSD athlete whose gonads also produce 10-30 times more testosterone than she does’.
The IAAF regulations explain that a female athlete who does not meet the regulatory standard ‘will not be eligible to compete in the female classification in a Restricted Event at an International Competition’, but would be eligible to compete in the male classification. If this is not sex testing and classification according to physical characteristics, I don’t know what is.
Taylor’s response emphasises biological differences and says very little about performance or how it is related to testosterone (presumably because he was writing a response, so fair enough). However, performance is absolutely essential to the IAAF case.
The CAS ruled against IAAF in the Chand case because the evidence available did not support the claim that high testosterone levels in certain female athletes were associated with a difference in performance between these women and other women that was similar to the difference between male and female. CAS explained (527): ‘The Panel considers the lack of evidence regarding the quantitative relationship between enhanced levels of endogenous testosterone and enhanced athletic performance to be an important issue. While a 10% difference in athletic performance certainly justifies having separate male and female categories, a 1% difference may not justify a separation between athletes in the female category, given the many other relevant variables that also legitimately affect athletic performance.’
The numbers therefore matter. Because the performance numbers matter, levels of testosterone (or, unmentioned in the regulations, the presence of testes) are by themselves irrelevant. CAS judged that it is only if high levels of testosterone can be associated with a performance advantage of the order enjoyed by men over women that regulation might make sense.
CAS further explained (528): ‘However, in order to justify excluding an individual from competing in a particular category on the basis of a naturally occurring characteristic such as endogenous testosterone, it is not enough simply to establish that the characteristic has some performance enhancing effect. Instead, the IAAF needs to establish that the characteristic in question confers such a significant performance advantage over other members of the category that allowing individuals with that characteristic to compete would subvert the very basis for having the separate category and thereby prevent a level playing field. The degree or magnitude of the advantage is therefore critical.’
This is where things get a bit sticky. Upon receiving this judgment, IAAF sought to commission research on the relationship of testosterone and performance. Rather than invite independent researchers to conduct such research, IAAF conducted it internally. This approach is clearly problematic because IAAF, as an interested party in the outcome, can hardly be called independent. Thus, IAAF handicapped itself from the outset.
The resulting research (much discussed on this blog) is Bermon and Garnier (2017). Not surprisingly, IAAF claims that its results support further regulation of testosterone. A close look doesn’t really support this claim.
The most striking conclusion of this paper – taking it at face value – is that the resulting statistics come no where close to the 10% difference in athletic performance cited by CAS as an appropriate basis for regulation. In fact, the paper found no performance difference worth regulating in 19 of 23 athletic events in which women compete.
Think about that. After all of the talk of the overwhelming importance of testosterone to athletic performance, an internal IAAF study designed to look for such differences could not justify testosterone regulations for almost all women’s events. Clearly, testosterone is not the magical athletic elixir claimed by some.
Of the four events that IAAF decided to regulate (400m, 400mH, 800m and 1500m), the Bermon and Garnier study found performance differences between the highest and lowest tertiles to be, respectively for each event: 1.5%, 3.1%, 1.6% and 0.3% (from Table 6). Only the first three were claimed to be statistically significant differences. These differences are similar to those that led CAS to suspend the original IAAF regulations at dispute in the Chand case, and far removed from 10%.
Given these numbers, it is surprising that IAAF has sought to again implement regulations that were previously unsuccessful at CAS. There seems to be no case here. Perhaps IAAF has some additional science in its back pocket [Editor’s note: It does – a 2018 study, ‘Circulating Testosterone as the Hormonal Basis of Sex Differences in Athletic Performance’, which is due to be published by Endocrine Reviews. The authors of the study are Professor David Handelsman of the University of Sydney, Professor Angelica Hirschberg of Karolinska Institutet and Dr. Stéphane Bermon, who authored the 2017 study referred to above].
Finally, on performance data, a last note. Along with Ross Tucker and Erik Boye, I have requested the underlying performance data of Bermon and Garnier. This is a normal request in research and should be expected of anyone who publishes peer reviewed research. Thus far, IAAF has not released the data. This is deeply troublesome. We have engaged the journal’s editor and will push this as far as it takes. As CAS explains, the numbers matter.
It is very good to see IAAF (or its representatives) engaging in public. This is good for sport governance, for athlete rights and for the effective role of evidence in decision making. In this instance, I applaud Jonathan Taylor for his lengthy defence of the newly proposed IAAF regulations. He provides a further window into their basis and justification. They also raise some important issues worthy of further debate and discussion.
• This article was originally published on Roger Pielke Jr.’s internet site on 5 June 2018. Click here for the original.
The World Anti-Doping Agency (WADA) has three core integrity principles. To protect the rights of...
For the last three days, I have been struggling with what to write regarding the...
Jim Walden, Managing Partner at Walden, Macht & Haran LLP and Attorney for Dr. Grigory...