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A question of ‘fairness’: Why ethics should factor in the Court of Arbitration for Sport’s decision on the IAAF Hyperandrogenism Regulations
  1. Silvia Camporesi
  1. Correspondence to Dr Silvia Camporesi, Department of Global Health and Social Medicine, King’s College London, London WC2R 2LS, UK; silvia.camporesi{at}kcl.ac.uk

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The Court of Arbitration for Sport (CAS) in Lausanne, Switzerland, is an international court tasked with settling legal disputes related to sport. This editorial comments on the ongoing Dutee Chand vs Athletics Federation of India (AFI) & International Association of Athletics Federations (IAAF) case1 (see box 1) which pertains to whether there is sufficient evidence to demonstrate a correlation between levels of endogenous testosterone and a competitive advantage in track and field.

Box 1

Background on Dutee Chand vs AFI & IAAF case

The International Association of Athletics Federations (IAAF) Hyperandrogenism Regulations were in place from 1 May 2011 to 24 July 2015, when they were suspended by the Court of Arbitration for Sport (CAS). The regulations stated that female athletes who naturally produce levels of testosterone higher than 10 nmol/L were not eligible to compete in the female category and would need to take androgen suppressive drugs to resume competition. Dutee Chand, an Indian sprinter, was asked to abide by these Regulations in July 2014 and appealed to the CAS on grounds that the Regulations unfairly discriminated against women who naturally produced higher levels of testosterone. The CAS was not satisfied with the evidence the IAAF provided and hence suspended the Regulations on 24 July 2015, but allowed the IAAF up to 2 years (later extended) to submit additional evidence on the correlation between endogenous levels of testosterone and athletic performance. The Regulations currently remain suspended until 19 July 2018.

Do higher levels of testosterone confer an advantage?

The IAAF first sponsored, and later presented as evidence to CAS, a study by Bermon and Garnier2 published in BJSM, that reports that the advantage conferred to female athletes by higher testosterone levels in five athletic events falls in the range of 1.8%–4.5%. The IAAF also filed material on 29 September 2017 to CAS that includes draft revised Hyperandrogenism Regulations (not available in the public domain) that would apply only to female track events over distances of between 400 m and 1 mile. The CAS Panel has made no ruling as this paper was accepted and the regulations are to remain suspended for an additional 6 months (beyond July 2018).3

What would it mean for the CAS to receive sufficient evidence of such a correlation? First, the IAAF would have to demonstrate that increased levels of endogenous testosterone did result in a competitive advantage. Second, the IAAF would have to demonstrate that such an advantage would be unfair. As to the former, argued in a companion article,4 a reanalysis of the available data presented by Bermon and Garnier suggests, at the very least, that further analysis is required to establish the claims made in the paper, and that some of the above estimates about the advantage conferred by higher testosterone are not supported by the data. As to the latter, the evidence filed by the IAAF appears to fall short from an ethical point of view as well, since it does not provide clear proof that any competitive advantage derived from increased levels of endogenous testosterone would be unfair.

What is fair?

As stated by the IAAF itself when outlining in the Preface to the Hyperandrogenism Regulations, one of the three fundamental principles on which they are predicated is ‘a respect for the fundamental notion of fairness of competition in female Athletics’. The crux of the matter is exactly that word, ‘fairness’, and what it means in the context of competition. Although there is no agreed upon definition of fairness that the CAS could call upon when arbitrating sport disputes, a resolution of the Dutee Chand vs AFI & IAAF case necessarily requires an engagement with these two key questions: What is fairness in competition? And: How do we distinguish ’fair' advantageous variations from ‘unfair’ advantageous variations?

I believe fairness in competition means empowering athletes to compete with the bodies they have, without the aid of external substances to boost their performance. Indeed, the natural/unnatural distinction underlies the international regulations around doping. Hence, with this perspective in mind, requiring female athletes to reduce their natural, endogenous levels of testosterone would be the equivalent of requiring athletes to take drugs to reduce the number of their naturally occurring red blood cells, or to level out all genetic variations that make champions the exceptional athletes they are.

Either all natural variations are levelled out and a threshold is imposed to ensure a level playing field, or none are. The former strategy is neither feasible nor desirable. Yet, singling out testosterone from the numerous other variables that make an athlete exceptional would be an inconsistent and unwarranted move and based entirely on heteronormative standards for how a female athlete should look. 5–8 As a matter of fact, in sport, there are natural ‘unfairnesses’ such as uneven distributions of talents, and of access to training and coaching facilities that we do not seek to level out, because they are considered part of the game, hence ‘tolerable unfairnesses’.9 Elite athletes are what they are—exceptional human beings—because of their biological and genetic variations.

Inclusivity: one of the fundamental values in sport

As the CAS Panel ponders the question of the sufficiency of the evidence put forward by the IAAF over the next few months, it should consider that answers regarding when it is fair for a woman with hyperandrogenism to compete in the female category cannot be found only in the results of a medical evaluation aimed at ascertaining the levels of endogenous testosterone. CAS should consider another vitally important aspect—inclusivity—as one of the fundamental values in sport; hence, we need to ensure we are inclusive of all gender identities, and when in doubt we should err on the side of inclusivity.10 CAS should act accordingly when judging the kind of evidence submitted by the IAAF in this case, and others.

References

Footnotes

  • Funding The authors have not declared a specific grant for this research from any funding agency in the public, commercial or not-for-profit sectors.

  • Competing interests None declared.

  • Patient consent Not required.

  • Provenance and peer review Not commissioned; internally peer reviewed.

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