Problems of Proof for the Ban on Female Athletes with Endogenously High Testosterone Levels

By Lin, Silver | Chicago Journal of International Law, Summer 2019 | Go to article overview

Problems of Proof for the Ban on Female Athletes with Endogenously High Testosterone Levels


Lin, Silver, Chicago Journal of International Law


I. Introduction

Since the late 1960s, international sports organizations have conducted gender testing to police the divide between men's and women's competitions.1 Due to improvements in science and technology, the nature of such testing has evolved over the years.2 As international sports organizations have developed a greater recognition of the lack of a binary gender classification, regulating bodies have likewise walked back from mandatory gender testing.3 Yet this reduction in gender testing cannot be seen as a complete victory for those opposed to such testing, for the mandatory tests have only been replaced by testing on a case-bycase basis in some sporting bodies, most notably in the International Olympic Committee (IOC) and in the International Association of Athletics Federations (IAAF).4 In particular, new understandings of hyperandrogenism, "a congenital disorder [that] leads to elevated levels of testosterone due to an androgen insensitivity,"5 has generally led to a greater acceptance of hyperandrogenic women,6 or women with biological features more commonly associated with masculinity.7 Given this new understanding of intersex conditions, the argument for eliminating gender testing based on problematic metrics like testosterone has gained much traction in the sporting world and has furthered the controversy surrounding the current system of case-by-case testing.8

Despite advances in biology that cast doubt upon the traditional gender divide, the IAAF announced on April 26, 2018 new regulations limiting participation of female athletes whose testosterone levels are outside the normal female range (as defined by the IAAF's medical and science experts) in certain track events, such as the 400-meter and 1600-meter races.9 Setting the threshold for participation in competition at 5 nanomoles per liter (nmol/L) of testosterone, the regulation bans women with 46 XY differences in sexual development (DSDs) and thus endogenously, or naturally-occurring, high testosterone levels from competing in the named events unless they undergo treatment to lower their testosterone levels or choose to participate in men's competitions.10

The new regulations come after a similar rule that restricted competition participation for women with over 10 nmol/L of testosterone was temporarily invalidated by the Court of Arbitration for Sport (CAS) in July 2015 in Dutee Chand v. Athletics Federation of India (AFI) & IAAF.11 CAS temporarily enjoined enforcement of the competition ban on the grounds that the IAAF, inter alia, did not provide enough evidence that an endogenous testosterone level differential resulted in unfair competitive outcomes.12 Because the new regulations supplant the policies at issue in the 2015 case, that case is now rendered moot. With respect to the latest regulation on women with high testosterone, the IAAF claims to have strong evidence supporting its conclusion that high DSDs such as endogenously elevated testosterone levels lead to differences in athletic performance, arguably providing the necessary justification for the new regulation.13 Although the new regulations were scheduled to go into effect on November 1, 2018, South African runner Caster Semenya, who has been in the spotlight as a female athlete with naturally-elevated testosterone levels, filed a challenge to the regulation before CAS in June 2018.14 In light of Semenya's challenge, the IAAF agreed to suspend implementation of the regulation until CAS resolves the matter.15

From February 18-22, 2019, panelists the Honorable Dr. Annabelle Bennett, the Honorable Hugh L. Fraser and Dr. Hans Nater heard Semenya's challenge to the DSD regulations and the IAAF's response.16 On May 1, 2019, CAS released the decision in Semenya's challenge, dismissing the requests for arbitration because Semenya and Athletics South Africa (ASA) were unable to prove the invalidity of the new DSD regulations.17 Referencing the as-yet unpublicized panel decision, the release simply stated that "[t]he Panel found that the DSD Regulations are discriminatory but the majority of the Panel found that . …

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