Author: Swapnil Thawaney 

3rd Year BA LL.B.
Christ (Deemed to be University) Bengaluru.

      ·       INTRODUCTION
Female Hyperandrogenism refers to a situation where the body of the female athlete produces high levels of testosterone and it has been perceived by the The International Association of Athletics Federation (IAAF) that it provides unnecessary advantages to these athletes. Thus, IAAF in its Articles prohibits such female athletes to compete in athletic events under the female category and says that they need to undergo surgical treatment to significantly reduce the levels of testosterone in their body. Some of the major victims of this article have been athletes like Caster Semenya of South Africa and Dutee Chand of India, and their only fault is that their bodies naturally produce high levels of testosterone. What the IAAF fails to understand here is that such a condition can also arise in the females due to condition such as Polycystic Ovary Syndrome (PCOS) among others and such condition is detrimental to the female athletes and does not provide them extra advantage. In this article, thus the author tries to discuss the various levels on which such a provision is discriminatory among the ones stated above and how the decision given in the case of Dutee Chand vs AFI and IAAF[1] in the court of arbitration for sports has failed to remove such discrimination.
This rule of Hyperandrogenism in its basic sense is a means of determining who can compete in the female category and who can’t by testing their testosterone levels and excess makes the athlete disqualified for competition. This is a considerably new method of determination of gender and many different methods have been used in the past for the same purpose. The earliest method used was by equating sex with gender and in this process the genitals present in the body used to determine whether the athlete was a female or not. Thus, if the athlete had female genitals, she could run in the female category. This method was used prior to 1967. This method was highly criticised by many as the doctors assigned for this purpose used to check the genitals of the athletes and this process used to be a very shameful experience for the athletes undergoing the same.
This method was replaced after 1968 and the new method adopted was to check the chromosomes of the athlete. The, principle used in this was that females show a single X-chromatic mass, whereas male don’t. Unfortunately, sex chromatin analysis fell out of common diagnostic use by geneticists shortly after the International Olympic Committee (IOC) began its implementation for gender verification. The lack of laboratories routinely performing the test aggravated the problem of errors in interpretation by inexperienced workers, yielding false-positive and false-negative results. However, an even greater problem is that some athletes exist with male sex chromatin patterns (e.g. androgen insensitivity, XY gonadal dysgenesis). These athletes have been proved to have no athletic advantage over the others and therefore this method for determining gender was also scrapped.
Then came the method of Testosterone level testing in 2009. This method was widely influenced by the extra-ordinary success of Caster Semenya and this method is being used till date.   
The main issues with this method of testing the testosterone levels is that –< /span>
      1.     The Right to Equality of the Athletes is being infringed
      2.     Lack of Scientific Evidence
      3.     Harm Caused to the female Athletes
These issues were also discussed in the Dutee Chand case and the court of arbitration for sports decided the case in her favour. However, Caster Semenya was not as lucky as her and the court of arbitration for sports rejected her case which was on the same base of validity of gender verification in the sports arena through the means of testosterone level testing.[2] Thus, these questions need a closer look again.
      1.     RIGHT TO EQUALITY
This method of testing violates both Article 1[3]and Article 2[4]of the Universal Declaration of Human Rights which talk about Right to Equality and Right against Discrimination. But this method violates both of them on various grounds. Firstly, it discriminates between the natural characteristics of these athletes with other athletes who have physical characteristics that give them same type of advantage over their compatriots. The famous example given in this case is the streamlined shape of Michael Phelps[5]body, along with his height and other such features gives him advantage over the other athletes[6]. Also, many successful athletes have credited their height, or other such body features to their high success rate. The thing to be noted here is that these athletes produce high levels of testosterone naturally and thus this natural advantage to them should be treated in the same manner as the other natural features are treated. Secondly, this is violative of Equality as this testing is done only on female athletes and not on male athletes. Thirdly, studies show that around 14% of the female athletes have high levels of testosterone levels in them[7], however not all of them are tested and a trend has been seen that only those athletes who gain certain levels of success are only tested by this method. This can be observed in the both the cases of Caster Semenya and Dutee Chand. Only after Dutee Chand won the gold in both the 200-meter sprint and the 4-by-400-meter relay at the Asian Junior Athletics Championships, was she asked to undergo the sex testing.[8]Caster Semenya was also asked to undergo sex testing after her brilliant performance at the 2008 Olympics. Thus, this policy of sex testing by measuring the amount of testosterone levels is highly violative of Right to Equality of these athletes.
Another problem with this method of testing is that it is not backed by any scientific evidence which states that natural high levels of testosterone are linked with the performance of these female athletes. Scientists have failed to testify to this logic given by the IAAF which they relied upon while framing this rule.[9]Another fact to be kept in mind is that there is a difference between endogenous testosterone and exogenous testosterone and even though dosages of testosterone taken externally have been proved to have enhanced the performances of the athletes, the same cannot be said about the naturally high levels of testosterone produced by the bodies. This was also proved by professor Holt in his study conducted in 2014 and was considered in the Dutee Chand case[10]Also the fact that the IAAF failed to consider is that multitude of biological, psychological, sociological and economic factors influence athletic performance and not only the presence of naturally high levels of testosterone. This along with the fact that no scientific study went into deciding the threshold set by the IAAF of 5nmol per litre[11]are main reasons as to why this provision has no scientific backing behind it and is one of the issues behind the implementation of such a method.
One more issue with this method is that the female athletes who fail this test undergo stigmatisation in the society which no one should be made to go through and causes serious damage to the self-esteem and gender-identity of female athletes. The documentary of Dutee Chand clearly highlights this point that making the reports public makes the lives of such athletes very miserable and she also states that the athletes should have also have the rights over their bodies[12]. Another issue is that the IAAF requires the athletes who get detected by such high level of testosterone to undergo surgical treatment to reduce the levels of testosterone in their bodies, if they want to get back into the sport. This treatment which is made compulsory has been found to have several side effects on the players who undergo the treatment and the compulsory nature means that there is no other way for these athletes to compete in the sport that they have dedicated their lives to. Therefore, this also causes both mental and physical agony in the athletes.
The CAS held in the Dutee Chand’s case[13]that even though Testosterone is the main reason of difference in capabilities of male and female athletes, this cannot however the justification that it also provides competitive edge to the female athletes with high levels of testosterone. The CAS panel found that it provides only a slim edge of 1-3% as opposed to 12% as contended by the IAAF. The panel also held that there is a lack of evidence on the part of the IAAF to justify the 10nmol per litre rule (which was the standard that time) and held it was just an arbitrary figure established by the IAAF. Thus, on the basis of these observations, the CAS suspended the Hyperandrogenism regulations in the year 2015. Even after this case, the IAAF reduced the upper limit of testosterone levels from 10nmol/litre to 5nmol/litre.
However, in 2019, in the Caster Semenya case[14], the CAS overturned its previous decision meted out in the Dutee Chand case after just 4 years and this time they accepted the Hyperandrogenism regulations are not discriminatory in nature firstly and secondly the reduction done by the IAAF from 10nmol/litre to 5 nmol/litre was not arbitrary and the IAAF was completely justifies. This is a complete U-turn taken by the CAS on this issue where they have given a completely different judgment and the hyperandrogenism regulations still very must are intact till date.
      ·       CONCLUSION
The judgment given by CAS in the caster Semenya case has left many dumbfounded as this was the complete reversal of the Dutee Chand decision and the author here feels that the decision given in the Dutee Chand’s case was the right decision and the decision in the Caster Semenya case should be considered as an anomaly and the CAS should try to rectify it as soon as possible. The reasons for this view are the issues raised in this article such as the issue of right to equality of these female athletes being violated along with lack of scientific evidence as to how the high levels of testosterone provide an illicit advantage to the females having high levels of testosterone and thirdly and the mental and physical harm caused by such a provision on such athletes.
 Thus, the author would here also like to suggest that only the external intake of performance enhancing materials must be regulated by the IAAF and the natural advantages provided to the athletes must be respected as the other natural features are accepted. Also, to decide whether a particular individual can compete under the female category or not, the individual’s own definition of his gender must be given preference firstly and secondly the chromosome test must be introduced back while all its flaws must be removed to make it a better version of the previous one. Only in such instance, the IAAF would be able to stop the inequality which is being faced by a particular group of athletes just because they naturally produce some excessive levels of hormones.       

[1] CAS 2014/A/3759 Dutee Chand v. Athletics Federation of India (AFI) & The International

Association of Athletics Federations (IAAF)

[2] What’s with the gender inequality? Dutee Chand talks about the tests female athletes face before competing

< https://economictimes.indiatimes.com/magazines/panache/whats-with-the-gender-inequality-dutee-chand-talks-about-the-tests-female-athletes-face-before-competing/articleshow/69851149.cms>last visited on 29.02.2020

[3] Article 1(UDHR) -All human beings are born free and equal and should be treated the same way.

[4] Article 2(UDHR) – Everyone can claim their rights regardless of sex, race, language, religion, social standing, etc

[5] Michael Phelps is a famous Swimmer who has a record 23 gold medals and a total of 28 medals at the Olympics

[6] How Michael Phelps’ Body Made Him the Perfect Swimmer – https://www.liveabout.com/michael-phelps-body-proportions-and-swimming-1206744 <last visited on 29.02.2020>

[7] Supra 1, observed in the Dutee Chand Case

[8]The Humiliating Practice of Sex-Testing Female Athletes –  https://www.nytimes.com/2016/07/03/magazine/the-humiliating-practice-of-sex-testing-female-athletes.html  <last visited on 29.02.2020>

[9] Supra 1, This was held in the Dutee Chand Case

[10] Supra 1

[11] The standard of 5nmol/litre was set after the Dutee Chand Case

[12] Supra 8

[13] Supra 1, Dutee Chand vs IAAF

[14] CAS 2018/O/5794 Mukgadi Caster Semenya vs International Association of Athletics Federations

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