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Timely commentary regarding ethical and legal issues in sports by various ISLE board members.

Case Against Intersex Runner is Sprinting to Another Loss

By Ronald Katz and Robert Luckinbill

Law360, New York (July 18,2017, 12:38 PM EDT)– Issues relating to the permissibility of intersex and trans gender athletes competing in local, national and international competitions have a complex history presenting complicated problems.[!] Some of those issues soon may be one step closer to resolution. The appeal that Indian sprinter Dutee Chand brought against the International Association of Athletic Federations (IAAF) and the Athletics Federation of India after having been suspended from competition in 2014, is now being revived in the Court of Arbitration for Sport (CAS).[2] 

Chand, who has been accused of no wrongdoing, is a person who has lived as a woman her entire life but who many believe is intersex, i.e., she has both male and female physical traits. The basic issue in the arbitration is whether having such a condition disqualifies her from competing against females because she has more naturally occurring testosterone in her body than do the female athletes with whom she seeks to compete. At the heart of that issue is whether there is scientific evidence that testosterone in and of itself provides an athlete with an unfair athletic advantage.

The CAS arbitration panel issued an interim arbitral award in the Chand case in July 2015, finding in favor of Chand.[3] The CAS panel held that there was no persuasive evidence that testosterone alone provided such an advantage.[4] Rather, the CAS panel stated that numerous variables affect athletic performance, including “nutrition, access to specialist training facilities and coaching, and other genetic and biologic variations.”[5] This seems obvious, e.g., it is unlikely that most males could defeat Serena Williams in a tennis match even if they had more naturally occurring testosterone than her. Similarly above-average height may help a basketball player, above-average weight may help a football player, and above-average lung size and/or length of stride may help a runner, but no one would seriously suggest that these naturally occurring traits should disqualify a competitor.

In the interim arbitral award, the CAS panel allowed the IAAF up to two years to submit additional written evidence and expert reports addressing the actual performance advantage enjoyed by hyperandrogenic (intersex) females over nonhyperandrogenic (nonintersex) females “by reason of their high levels of testosterone.”[6] In a July 3, 2017, press release, the IAAF announced that it intends to submit such evidence.[?] The IAAF press release specifically references a study by the Monaco Institute of Sports Medicine and Surgery (in part financed by the IAAF and co-directed by an IAAF employee) that studied 2,127 female and male athletes in recent international competitions and concluded that the female winners on average have more testosterone in their system than the female losers but that this was not the case with the males.[8]

With all due respect to the Monaco Institute, this study does not directly address the issues raised in the CAS interim award because it does not isolate the effects of testosterone compared to all the other physical attributes and training circumstances that contribute to athletic performance. Stating that a winner has more testosterone than a loser says nothing about how hard those athletes trained, what their diets were, the quality of their coaching, the ability of their systems to metabolize oxygen, and all of the other dozens of factors that affect athletic performance. The fact that the presence of more testosterone does not seem to help male competitors also cuts against the argument that testosterone alone makes the competitive difference.

Furthermore, the IAAF-financed study did not address the question of females who have testosterone at male levels. As the IAAF co-director of the research qualifiedly states in the IAAF press release, “If, as the study shows, in certain events female athletes with higher testosterone levels can have a competitive advantage of between 1.8-4.5% over female athletes with lower testosterone levels, imagine the magnitude of the advantage for female athletes with testosterone levels in the normal male range.” [9] The word “imagine,” however, is not part of the scientific lexicon; no such imaginings are appropriate in scientific endeavors because the experiments have to actually be performed.

The IAAF would be well advised to take Dutee Chand at her word, i.e., that she is a female and has always lived as such. Indeed, there is no contrary evidence. More importantly, there is no conclusive science isolating the standalone effect of testosterone, if any, on athletic performance . Therefore, the CAS should finalize its 2015 decision in favor of Dutee Chand.

What Chand said after her interim victory at the CAS in 2015 should soon apply again: “What I had to face… was not fair. I have a right to run and compete. But that right was taken away from me. I was humiliated for something that I can’t be blamed for. I am glad that no other female athlete will have to face what I have faced, thanks to this verdict.”[lO]

Ronald S. Katz, who is chair emeritus of the Institute of Sports Law and Ethics hosted by University of the Pacific and has taught sports law at Santa Clara University Law School, is of counsel at GCA Law Partners LLP in Mountain View, California. In 20I6, he was a Distinguished Careers Institute Fellow at Stanford University. He is co-author of “Sport, Ethics and Leadership,” which was published by Routledge in 20I7.

Robert W. Luckinbill is a partner with GCA Law Partners in Mountain View.

The opinions expressed are those of the author( s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

[1] See Ronald S. Katz & Robert W. Luckinbill, Changing Sex/Gender Roles and Sport, 28 Stan. L. & Pol’y Rev. 215 (2017).

[2] Dutee Chand’s ‘gender case’ to be re-opened, IAAF to return to CAS, Hindustan Times (July 4, 2017), http://www .hindustantimes .com/other -sports/du tee-chand -s-gender-case-to-be-re-opened-iaaf-to-return-tocas/story-vq077jYyiECGaJklksiVTI.html

[3] Dutee Chand v. Athletics Federation oflndia & The International Ass’n of Athletics Federations, CAS 2014/A/3759, Interim Arbitral Award (2015), upload/award internet.pdf.

[4] ld. at 158.

[5] ld. at 154.

[6] ld. at 160.

[7] Levelling the playing field in female sport: new research published in the British Journal of Sports Medicine, IAAF Press Release (July 3, 20 17), https://www news/press-release/hyperandrogenismresearch

[8] Stephane Bermane & Pierre-Yves Garnier, Serum androgen levels and their relation to performance in track and field: mass spectrometry results from 2127 observations in male and female elite athletes, Br. J.

Sports Med. 2017, early/2017 /07112/bjsports-2017-097792.

[9] ld.

[10] John Branch, Dutee Chand, Female Sprinter With High Testosterone Level, Wins Right to Compete, N.Y. Times (July 27, 2015), sprinter-with-high-male-hormone-level-wins-right-to-compete.html

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