24 September 2018

UN urges IAAF to withdraw DSD Regulations

The Human Rights Special Procedures body of the United Nations has urged the International Association of Athletics Federations (IAAF) to withdraw its Eligibility Regulations for Female Classification (Athlete with Differences of Sexual Development) in a letter to IAAF President, Sebastian Coe. The DSD Regulations, as they have become known, are designed to regulate athletes with one of seven listed differences in sex development (DSDs) competing in international events run between 400m and one mile in the IAAF’s female category, if their testosterone levels are above 5 nmol/L and have an ‘androgenising effect’ (i.e. if that testosterone is taken up by their androgen receptors and boosts their physiology).

In the letter (PDF below), three UN Special Rapporteurs for physical and mental health; torture; and discrimination against women highlight ‘serious concerns’ that the DSD Regulations:

• Contravene human rights standards and norms;
• do not present evidence justifying that they pursue a legitimate aim;
• are not reasonable and objective;
• do not demonstrate proportionality between their aim and effects.

Scientific & methodological criticisms

The letter outlines a number of criticisms of the science and methodology behind the IAAF’s DSD Regulations (PDF below). It points out that although Section 1.1(d) of the Regulations refers to a ‘broad medical and scientific consensus’ in support of them, a number of scientific articles have reached contradictory conclusions, including that there is no demonstrated relationship of causality between high levels of natural testosterone in women and their sports performance.

It states that there are methodological flaws in Studies presented by the IAAF as evidence in support of the DSD Regulations. In July, the IAAF was forced to re-submit a 2017 Study referenced in support of the DSD Regulations after scientists found serious flaws in the data. The main Study used in support of the Regulations, ‘Circulating Testosterone as the Hormonal Basis of Sex Differences in Athletic Performance’, has yet to be published and is listed as ‘under review’.

Detail from the 2015 Chand ruling…

‘There is no evidence that the performance of elite women athletes with high levels of natural testosterone exceeds the performance of other elite women athletes in a manner comparable to the way that performance of elite men athletes exceeds that of elite women athletes, or that the targeted elite women athletes have performance in the same range as that of elite men athletes’, reads the letter from the Rapporteurs. It also points out that in the Dutee Chand case, the Court of Arbitration for Sport (CAS) recognised that a range of natural physical and biological traits are associated with performance in sport. The Rapporteurs argue that the DSD Regulations focus on just one group of people – women with a DSD. 

The letter also point out that studies, some of which are cited by the IAAF, demonstrate overlap between the natural testosterone levels of male and female athletes, as well as some elite male athletes displaying lower testosterone levels that female athletes. ‘Such studies lead to serious questions regarding the justification of the IAAF for the threshold of 5 nmol/L’ reads the letter. 

It also highlights that Endnote 4 of the Regulations exempts women with medical conditions (such as polycystic ovary syndrome – POS) that elevate natural testosterone from the scope of the Regulations, without explaining why. The Explanatory Notes to the DSD Regulations (PDF below) argue that women with POS could have circulating testosterone up to 4.8nmol/L. ‘Therefore, the only female athletes competing with levels above 5 nmol/L would be intersex/DSD athletes, doped athletes and athletes with adrenal or ovarian tumours’, they read.

Gender judgment & medical harm

‘Should a woman athlete be excluded from competitions for women as an outcome of the process stipulated in the Regulations, this will most likely be interpreted as a judgment or questioning of their sex or gender identity’, points out the Letter. It also states that ‘women who do not conform to culturally constructed notions of womanhood are particularly at risk of discrimination, violence and criminalisation’. The UN Special Rapporteurs point out that the IAAF has not sought to apply similar Regulations to men, despite the fact that natural physical and biological traits affect their sporting performance. 

Unfortunately, sport’s previous Regulations in this area have already led to uncomfortable situations for some women. Santhi Soundarajan twice attempted suicide after being ostracised in her remote Indian village after being stripped of a 2006 Asian Games silver medal after failing an Olympic gender test. 

In 2007, she attempted suicide by ingesting a veterinary poison. She returned to work at a brick kiln, sleeping in a makeshift hut, again attempting suicide in 2013. She 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. 

Ahead of the London 2012 Olympics, surgery was performed on four young athletes, who were 18, 20, 20, and 21. They were told that a gonadectomy (removal of undescended testicles) would be likely to lower their testosterone levels and allow them to continue to compete in the IAAF’s female category, after they reported testosterone levels above those permitted by the IAAF’s previous regulations in this area (click here to download).

The IAAF denies that it was responsible for telling the athletes that they had to undergo surgery in order to continue competing. “It was their choice to have gonadectomies, and the rest of it was their choice because when you are 17 and are told you are intersex and have ambiguous genitalia, some people choose to have surgery”, argues Jonathan Taylor of Bird & Bird, who drafted the DSD Regulations for the IAAF.

As Taylor points out, the IAAF was not responsible for wielding the surgeon’s knife on these young athletes. However, as the UN Rapporteurs point out: ‘While the regulations state that the athlete will not be forced to undergo any assessment or treatment under the regulations, the regulations leave no real choice to the athlete, who has to choose between undergoing these intrusive medically unnecessary assessments and treatments with negative impacts on their health and well-being. They also affect their livelihood and sporting career by excluding them from competing at restricted events for women athletes. The decision to undergo an intrusive medical treatment is therefore expected to be made by the concerned athlete; however such a decision would be made under pressure vis-à-vis the alternative of being excluded from competition which does not leave the concerned individuals with a viable choice.’

The medical harm that such surgery can cause is also outlined by the Rapporteurs. ‘These surgeries can cause irreversible harms to women, including compromising bone and muscle strength and risking chronic weakness, depression, sleep disturbance, poor libido, and adverse effects on lipid profile, diabetes, and fatigue’, states the letter, citing scientific studies published in the British Medical Journal (BMJ).

The letter also outlines that medical harm can be caused by forcing women to lower their endogenous (natural) testosterone levels. ‘Hormonal treatment to lower testosterone levels has adverse side effects including: diuretic effects that cause excessive thirst, urination and electrolyte imbalances, disruption of carbohydrate metabolism (such as glucose intolerance or insulin resistance), headaches, fatigue, nausea, hot flashes and liver toxicity’, points out the letter, again citing the BMJ.

Human rights

The letter also points out that amongst other legislation, the Regulations may contravene the following:

• Universal Declaration on Human Rights;
• International Covenant on Economic, Social and Cultural Rights;
• Convention on the Elimination of All Forms of Discrimination Against Women
• Covenant on Economic, Social and Cultural rights.

It also points out that informed consent is a fundamental feature of the right to health. ‘Intersex persons are recognized […] as a group deserving special consideration regarding the protection of informed consent, due to elements of vulnerabilities stemming from economic, social and cultural circumstances which significantly overlap and exacerbate inequalities’, state the Rapporteurs.

Eight observations requiring an IAAF response

The letter asks the IAAF for its observations on eight points before the Regulations (PDF below) come into force on 1 November. In brief these are as follows:

1. Comments on the observations made by the Rapporteurs in their letter;
2. Information on steps taken by the IAAF to uphold the rights of athletes, including women with a DSD, to ‘informed consent, to physical and bodily integrity, and to be free from discrimination, from non-consensual medical treatment, and from torture and other cruel, inhuman or degrading treatment’.
3. Information on steps taken by the IAAF to ensure the Regulations are compatible with human rights norms and standards;
4. Information on steps taken by the IAAF prior to issuing the Regulations to assess and address concerns about their impact upon ‘dignity, health, physical and bodily integrity […] and discriminatory impact on women athletes’.
5. Information on steps taken by the IAAF prior to issuing the Regulations to ensure women covered by the Regulations will not be coerced into ‘undergoing stigmatising and intrusive examinations, being subjected to medically unnecessary treatment […] or abandoning the possibility to compete’ as a result of the Regulations’.
6. Evidence on whether the Regulations are non-discriminatory, reasonable and objective;
7. Evidence how in the absence of the Regulations, competition between athletes in the events covered by them has become unfair, or lacked meaning, or has discouraged athletes from competing;
8. Information on steps taken by the IAAF to ensure fair and meaningful competition ‘in relation to the broad range of diverse traits and factors that influence sporting performance and to ensure that it does not discriminate on the basis of sex by exclusively focusing on women or discriminate on the basis of sex characteristics by exclusively focusing on people with differences in sex development’.

Scientific swiss cheese

Today’s letter underlines that scientific studies in this area remain inconclusive. As the drafter has pointed out, the DSD Regulations are based on scientific studies commissioned by the IAAF. However, as the letter from the UN Rapporteurs points out, one of these studies is flawed. Another is under review, and has yet to be published. There are also studies that contradict the IAAF’s position.

The letter also highlights the UN’s consideration that the DSD Regulations are about determining an athlete’s gender, despite the IAAF’s argument that they are about regulating unfair advantage in its female category. Whether the DSD Regulations are about governing gender or advantage, it has yet to be shown that in the absence of such Regulations, ‘super females’ with elevated endogenous testosterone will dominate female events run between 400m and one mile.

Sport is about making the best of your genetic advantages. The IAAF’s DSD Regulations determine whether somebody is eligible for female competition in events run between 400m and one mile on endogenous testosterone levels that it considers give them an ‘unfair’ genetic advantage. 

Testosterone is a controversial substance in sport. It is an anabolic steroidal hormone, a description that will raise red rags to many concerned with clean sport. It is naturally produced by both men and women, but men generally produce it in larger quantities. Unfortunately, it is understood that the human physiology doesn’t distinguish between naturally produced (endogenous) testosterone and synthetic testosterone (exogenous), which is why, historically, it has been effective as a doping substance.

It is understood that sensitivity of androgen receptors, which control the uptake of testosterone, differ between men and women, but also between individuals. Also, women generally start with a lower baseline level of testosterone. This perhaps goes someway to explaining why testosterone is so effective as a doping substance for females.

This brings us to the ‘advantage’ that women with elevated levels of endogenously-produced testosterone allegedly enjoy. Some women who produce higher levels of testosterone will enjoy an advantage, but whether that advantage is greater than the advantage leveraged by other areas of physiology (lean muscle mass, anaerobic capacity, height, foot size to name but a few) has yet to be proven.

Even if a genetic advantage were to be proven, the DSD Regulations need to determine whether such the advantage leveraged is ‘unfair’. This is where things get difficult. The IAAF argues that the degree of advantage enjoyed by females with elevated endogenous testosterone in events run between 400m and one mile is ‘unfair’, but the UN Rapporteurs argue that they have yet to prove this.

What is an unfair advantage when you are dealing with somebody’s natural physiology? In fairness to athletes with a DSD, it could be argued that athletes with other genetic advantages should also be regulated, as they also enjoy an ‘unfair’ advantage over their competitors. 

Have studies been conducted to ascertain the level of advantage an athlete’s height gives them in the high jump? Is that level of advantage much less than that enjoyed by a female with endogenous testosterone of above 5 nmol/L in events run between 400m and one mile? If not, what degree of height difference would be considered an ‘unfair’ advantage? Should the bar be lowered for high jumpers who are under five foot tall?

The IAAF has been asked for a response to the concerns of the UN Rapporteurs. The DSD Regulations have also been challenged by South African 800m runner Caster Semenya at the CAS. Scientists have found flaws in one of the studies used to underpin the DSD Regulations, and the main Study cited in support of the Regulations has yet to be published and is under review. Given all of the above, it is hard to see how the Regulations can come into force on 1 November, as the IAAF envisages.

• For a full explanation of the background to the DSD Regulations, click here to read ‘Questions remain over IAAF Differences of Sex Development Regulations’, published on 19 May 2018.

• Jonathan Taylor, the drafter of the DSD Regulations, asked The Sports Integrity Initiative to publish his 29 May 2018 response to our 19 May article, in full. You can view the response here, or click here for a PDF version.

• Jonathan Taylor also forwarded this article to scientist Joanna Harper and asked her to comment as part of an IAAF sponsored reply. Click here to view her response, published on 18 June 2018.

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