LANDMARK JUDGMENTS - Dutee Chand v. Athletics Federation of India (AFI) & The International Association of Athletics Federations (IAAF)

 

Parties: 

In the Court of Arbitration for Sport

Appellant

:

Ms Dutee Chand

First Respondent

:

Athletics Federation of India

Second Respondent

:

The International Association of Athletics Federation (IAAF)

Facts: 

On 26th June 2014, Mr. Dogra, the Director of AFI met the Athlete in Delhi. 

According to the athlete, she was asked to undergo a “routine doping test”. The Athlete claims that according to the chairperson of AFI Medical Commission, whom she met the next day, AFI were creating a high-performance profile for her and therefore a routine medical examination was being conducted to check for any diseases. She was asked to go through an ultrasound test which confused her as the standard procedure is a blood test. 

According to the AFI, the athlete along with other athletes went through ultrasound scans in Delhi to check up on their continuous complaints of severe abdominal pains. The chairperson further mentioned the concerns of other athletes with regards to the applicants appearance and eligibility to participate as a female in athletic contests. 

On 30 June 2014, the AFI sent a letter about the Athlete to the SAL which stated that the institution was unable to identify any suitable female Nodal officer" as required by the terms of the Standard Operative Procedure and suggested a gender identifying test of the athlete. According to the Athlete, on 13 July 2014 Dr Sarala of the SAI notified her that she would not be permitted to compete in the forthcoming World Junior Championships and would not be eligible for selection for the Commonwealth Games because her "male hormone" levels were too high.

On 31 August 2014, the AFI delivered a letter to the Athlete informing her that she was provisionally suspended from participating in any athletics events with immediate effect. On 18 September 2014, the Athlete sent a letter to the Secretary General of the AFI asking the AFI to reconsider the decision to revoke her eligibility to participate in all international or national athletics competitions.

    

Issues

Is there any form of discrimination encouraged by the Hyperandrogenism Regulations on the basis of physical traits or the sex of an individual?

Should the Hyperandrogenism Regulations be declared invalid due to lack of scientific evidence supporting the said regulations in terms of improvement of performance of female athletes due to presence of endogenous testosterone and the threshold of 10 nmol/L after which a female athlete 

The CAS Proceedings

On 26th September 2014, the Athlete filed the Statement of Appeal with the CAS Court pursuant to Article R48 of the Code of Sports-related Arbitration. 

On 6th October 2014, the CAS Court Office acknowledged the receipt of the Athlete's Statement of Appeal by writing to the parties. The letter invited the Respondents jointly to nominate an arbitrator. In addition, it invited all parties to indicate whether they preferred the arbitration to remain confidential throughout the proceedings.

On the same day, the Athlete's legal representative wrote to the CAS stating that the appeal "raises important issues of public interest and general application" and that the Athlete therefore did not agree to the arbitration proceedings being confidential

On 17 November 2014, following agreed upon extensions of time, the Athlete filed her Appeal Brief with the CAS Court Office pursuant to Article R51 of the Code.

On 24 November 2014, the parties were informed that the panel appointed to decide this arbitration was as follows: 

President: The Hon. Justice Annabelle Claire Bennett 

Arbitrators: Professor Richard H. McLaren 

 Dr Hans Nater

On 25 November 2014, the Athlete submitted a request for provisional relief seeking an order permitting her to compete in athletics events until a decision was rendered in her appeal. The request stated that the Athlete was '''under significant pressure to undergo medical intervention from her major sponsor”. 

On 3 December 2014, the IAAF wrote to the CAS in response to the Athlete's request for provisional relief. The letter stated that the IAAF did not object to the Athlete participating in national-level competitions while awaiting the outcome of the CAS proceedings. 

On 18 December 2014, the Secretary of the AFI wrote a letter confirming that the Athlete would be permitted to compete in state-level and national-level athletics events pending the determination of her appeal by the CAS.

On 22 January 2015, the Athlete filed an application requesting a public hearing of the CAS proceedings

On 4 February 2015, the IAAF wrote to CAS stating that the IAAF and AFI had objected to the Athlete's request for a public hearing and that, as a result, the CAS had no power to order a public hearing.

On 6 February 2015 the IAAF filed its Answer pursuant to R55 of the Code.

On 16 February 2015, the IAAF requested the CAS to order the Athlete to produce certain documents, namely the recommendations that Dr Payoshni Mitra had submitted to the Indian Government in connection with the creation of the Government's "Standard Operative Procedure to identify circumstances (female hyperandrogenism) in which a particular sports person will not be eligible to participate in competitions in the female category".

On 17 February 2015, the Athlete responded by letter which stated that the Athlete agreed to the disclosure of the documents.

On the same day, the CAS notified the parties that the Athlete's request for a public hearing was denied in accordance with Articles R44.2 and R57 of the CAS Code.

On 6 March 2015, the Athlete filed a motion under Article R56 of the Code seeking permission to file a witness statement from Ms Madeleine Pape, an Australian track and field athlete, under Article R56.

On 13 March 2015, the IAAF wrote to CAS objecting to the admission of Ms Pape's witness statement contending there was no exception circumstances as under Article R56. 

On the same day, the Athlete filed a further Expert Report from Professor Holt and Dr van Anders.

On 18 March 2015, the Athlete submitted a signed copy of the Order of Procedure

On 19 March 2015, the IAAF submitted a signed copy of the Order of Procedure. 

On 20 March 2015, the Panel admitted the statement of Ms Pape. 

On 23 - 26 March 2015, a hearing was held at the CCAS Court Office in Lausanne, Switzerland

On 26 March 2015, the Panel directed, with the concurrence of the counsel for the parties, that the Athlete would be permitted to compete in the Asian Athletics Championships on 3 - 7 June 2015. Such direction was confirmed with the parties by letter dated 10 April 2015.

Contentions of the Applicant

The athlete's legal representative acknowledged that it was up to them to prove that the Hyperandrogenism Regulations violate other, more important regulations. She also acknowledges that the burden of proving unlawful discrimination rests with her. The Athlete asserts that the CAS jurisprudence mandates that a law be found unconstitutional when it conflicts with a higher-ranking legal provision, such as a constitutional concept or the Olympic Charter.

Issue 1: Discrimination

The Athlete submits that the Hyperandrogenism Regulations violate the antidiscrimination provisions contained in the Olympic Charter, the IAAF Charter and international human rights law. The regulations discriminate against certain athletes based on a natural and essentially immutable physical characteristic, namely the quantity of testosterone their bodies produce without any artificial intervention. Any performance advantage that those athletes enjoy is the product of a natural genetic gift, which should not be viewed differently from other natural advantages derived from exceptional biological variation.

The Athlete submits that, having established that the Hyperandrogenism Regulations have a clear discriminatory impact, the onus shifts to the IAAF to justify the discrimination. For these purposes, the Athlete accepts that pursuing fairness in sport is a legitimate objective. However, she disagrees with the IAAF's argument that the Regulations are designed to preserve a "level playing field" for the benefit of elite female athletes. She submits that a multitude of biological, psychological, sociological and economic factors influence athletic performance. It is therefore impossible to single out a particular factor. The Athlete challenges the IAAF's reliance on the perception of fairness held by the "community of athletes", pointing out that different athletes hold different views, and no single viewpoint can be attributed to the large and diverse body of elite female athletes.

Issue 2: Scientific Basis 

the Athlete submits that the Hyperandrogenism Regulations are founded on two fundamentally flawed factual premises, namely that: (a) elevated levels of natural testosterone give elite female athletes a performance advantage; and (b) medical science is presently capable of delineating distinct testosterone ranges for male and female athletes. In support of her argument in relation to proposition, the Athlete relies on expert evidence that there is no convincing casual relationship between high endogenous testosterone and enhanced athletic performance in female athletes; there are no published scientific studies that link athletic performance with testosterone concentration in women with hyperandrogenism; and factors other than endogenous testosterone are sufficient to account for differences in athletic performance between male and female athletes.    

The important question, she contends, is whether endogenous testosterone has the same effect. The Athlete submits that the human body reacts differently to exogenous testosterone and endogenous testosterone. The former involves the introduction of a new biochemical agent that upsets the body's equilibrium by dislodging its natural hormonal stasis, whereas the latter does not. Accordingly, the Athlete contends that data concerning the performance enhancing effects of exogenous testosterone do not allow the same conclusion to be drawn in respect of endogenous testosterone.

Issue 3: Proportionality

The Athlete submits that the harm caused by the application of the Hyperandrogenism Regulations is grossly disproportionate to any benefits the rules are designed to achieve. In particular, the Hyperandrogenism Regulations may result in: 

(a) stigmatisation of female athletes caught by the Regulations

(b) serious damage to the self-esteem and gender-identity of female athletes with hyperandrogenism 

(c) female athletes undergoing medical tests without fully informed consent

(d) female athletes undergoing unnecessary medical procedures with serious long-term side effects. 

The Athlete also submits that the Hyperandrogenism Regulations mean that athletes are likely to undergo medical procedures to reduce their testosterone levels that are neither medically necessary nor the result of free and informed consent on the part of the athlete. A female athlete who declines or fails an assessment under the Hyperandrogenism Regulations is barred from competing in any event unless she is able to reduce her testosterone levels below 10 nmol/L. The Athlete further submits that, since the Hyperandrogenism Regulations are only "recommended as a guide to National Federations in Athletics"'' in relation to national level cases, the Hyperandrogenism Regulations create an inconsistent and unfair patchwork of compliance by different countries around the world. This, she says, compounds the inherently disproportionate nature of the Hyperandrogenism Regulations.

Issue 4: Impermissible Doping Sanction

The Athlete submits that the Hyperandrogenism Regulations operate as "disguised doping rules" because they establish, under the guise of ensuring a level playing field, a testosterone threshold above which a female athlete is automatically banned from competing. the Athlete submitted that even if the Hyperandrogenism Regulations have elements of both an eligibility rule and a sanction, the consequences of their application and athletes' general perception of the Hyperandrogenism Regulations mean that they should be treated as a disciplinary sanction.

Contentions of the Respondent

The IAAF concurs that it is the athlete's responsibility to prove that the Hyperandrogenism Regulations are unconstitutional. The IAAF acknowledges that its definition of a sporting imperative, as well as its determinations of need and proportionality, must be held with honesty and reasonableness. The onus of proving that a reasonable person operating in good faith could not have the opinion that the eligibility restriction is essential and suitable, according to the IAAF, is on the athlete.

Issue 1: Discrimination

The IAAF accepts that the Hyperandrogenism Regulations are a sex-based eligibility restriction and are therefore prima facie discriminatory on grounds of sex. Consequently, it accepts that it bears the burden of establishing that the discriminatory effect of the Regulations is justified as a necessary and proportionate means of achieving a legitimate objective. The IAAF submits that the principle of equal treatment requires like cases to be treated alike. However it also permits differentiation between objectively different situations where such differential treatment is necessary to protect fair competition. It says that it is with this principle firmly in mind that the Regulations must be assessed. 

The first is that the essence of sport is a level playing field and that this necessitates some categorisation in the interests of achieving fair competition. Further, it says, the "community" of female athletes demands a level playing field in the female category vis-a-vis the male category. This means, among other things, excluding female athletes from competing against other females where they enjoy the alleged performance advantages associated with "male" levels of hormones. Secondly, it says that testosterone provides the best criterion by which to ensure two things- a means of preserving the rationale underpinning the accepted categories of male and female athletes; and ensuring a level playing field within the female category with respect to a characteristic, LBM, that provides a competitive advantage for male athletes over female athletes

Issue 2: Scientific Basis 

The IAAF contends there is a strong body of scientific opinion that the main cause of male athletes' power, size and strength advantages over female athletes is the significantly higher levels of testosterone that males generate during and after puberty. This is evidenced, amongst other things, by the numbers of male and female athletes who illegally self-administer exogenous testosterone to build up their size, strength and power. However in rare cases, female athletes may have conditions which, through no fault of their own, cause their bodies to produce male rather than female levels of testosterone. Those conditions raise a concern that the affected athletes have a performance advantage over female athletes with normal levels of testosterone. The IAAF relies on the evidence of several expert scientific witnesses. On the basis of their understanding of the relevant scientific data, they conclude that higher testosterone levels in men are "the most important factor" in explaining the significant difference in physical performance between elite males and female athletes. According to their evidence, no other known factors demonstrate such a clear-cut difference between men and women. Accordingly, testosterone levels are "the best discriminating factor between male and female performance in sports"

Issue 3: Proportionality

The IAAF submits that the Hyperandrogenism Regulations pursue the legitimate objective of protective fairness in competitive athletics by ensuring that elite female athletes are able to compete on a level playing field. The IAAF submits that the restriction on a hyperandrogenic athlete's ability to compete must be weighed against "the need to be fair...to the vast majority of female athletes who are within the (much lower) normal female range". Those athletes, the IAAF says, would consider it unfair to compete with women whose bodies respond in different and stronger ways to training and racing to the bodies of female athletes with normal testosterone levels. The IAAF denies that the Hyperandrogenism Regulations discriminate impermissibly against female athletes because of the absence of any equivalent eligibility restriction on male athletes with unusually high endogenous testosterone levels. The IAAF relies on the evidence of Professor Murray, who states that he is unaware of any evidence of a strong correlation between male athletes with exceptional levels of testosterone levels and enhanced performance in sport.

Issue 4: Impermissible Doping Sanction

The IAAF rejects the Athlete's argument that the Hyperandrogenism Regulations constitute a form of impermissible anti-doping control. They submit that the Regulations do not add a further punishment on top of the prescribed WADA Code sanctions for an anti-doping violation; nor do they create a new anti-doping rule violation in addition to the ten species of violations set out in the Code. Instead, the IAAF says that they establish an eligibility condition equivalent in character to a boxing weight-limit. Exceeding the specified level of testosterone is not treated as doping or any other form of misconduct. On the contrary, as soon as an athlete meets the eligibility criteria she is permitted to compete.

Held:

The appeal filed by Ms Dutee Chand against the Athletics Federation of India letter dated 29 August, 2014 declaring her ineligible to compete under the IAAF Regulation Governing Eligibility of Females with Hyperandrogenism to Compete in Women's Competition is partially upheld.

Rationale:

The Hyperandrogenism Regulations are not being utilized to decide whether a competitor should participate as a male or female. Alternatively, they are being applied to the introduction of a new group of disqualified female athletes under the female category. Therefore, a particularly thorough investigation is needed to determine the necessity and appropriateness of that limitation.

Men's and women's competitions are the only two competitive categories. Each athlete who wants to compete in sports falls into one of these groups. It's possible that intersex women among the female athletes have high endogenous testosterone levels. Given that there is an intersex community and that this population is reflected in female athletes, it is necessary to acknowledge that these competitors may display traits ranging from those typical of a normal female to those typical of a normal man.

The Panel believes that, in theory, every athlete should be given the chance to participate in either of the two groups and shouldn't be barred from participating in any category because of the normal, unmodified nature of their body. The core idea of olympism is that "Every person must have the chance of enjoying sport, without prejudice of any type," and a regulation that forbids certain women from participating at all due to the natural and unaltered condition of their bodies is in direct opposition to this idea. The same goes for a regulation allowing an athlete to participate under the provision that they get a performance-impairing medical treatment that eliminates or lessens the impact of a certain naturally existing genetic characteristic.

According to the expert testimony offered, the Hyperandrogenism Regulations are meant to shield female athletes from competing against male athletes who have a strategic edge comparable to the one that male athletes appreciate because of the increased BLM due to higher testosterone levels.

To put it another way, the Hyperandrogenism Regulations are predicated on the underlying premise that hyperandrogenic females have a significant efficiency edge over their non-hyperandrogenic peers, an edge that outweighs the impact of any other individual biological or genetic attribute and is comparable in importance to the strategic advantage that males generally have over females. That is, it is claimed that unfair competition and the lack of an equal playing field result from the extent of strategic edge.

This begs the issue of whether the IAAF can show a connection between this level of testosterone in women and a true competitive advantage that impedes true participation within the female division. This benefit is not directly related to endogenous testosterone levels; rather, it results from how testosterone affects the body, especially from an expansion in LBM. The statistical impact of endogenous testosterone levels exceeding 10 nmol/L on female athletes' athletic performance, nevertheless, is not addressed by any research presented to the Panel, and it is accepted that no such data is presently accessible.

The Panel views the dearth of data demonstrating a quantifiable link between elevated endogenous testosterone levels and improved sports performance as a significant problem. While a 10% difference in sports performance unquestionably supports having distinct male and female divisions, a 1% difference might not, considering the numerous other pertinent factors that genuinely impact athletic performance as well. So, the figures are significant.

It is not sufficient to merely prove that a trait, like endogenous testosterone, has certain performance-enhancing effects in order to justify banning a person from participating in a certain category. Instead, the IAAF must demonstrate that the distinguishing feature in enquiry confers such a sizable performance benefit over other category participants that enabling individuals with that attribute to participate would undermine the very justification for the different category and obstruct the creation of a level playing field. It is important to consider the size or scope of the benefit.

Dictum

The Panel concludes that the IAAF has not met its obligation to demonstrate that the requirements in the Hyperandrogenism Regulations are appropriate and essential to further the legitimate goal of limiting qualification to participate in female athletics in order to guarantee balance in athletic activities.

The Panel wants to stress once more that its findings don't indicate any dishonesty or ineptitude on the side of the IAAF. Instead, throughout the consultation, formulation, and implementation of the Hyperandrogenism Regulations, the IAAF has demonstrated exemplary thoroughness and good faith. The Panel acknowledges the IAAF's decision that it concerns the policy of fair competition in the female category for excluding athletes who, by their very nature, possess traits that offer them a competitive edge comparable to that favoured by male players. The IAAF safeguards the best interests of sports people, which include female athletes. The IAAF believes that this is justified and proportionate, according to the facts that was presented to the panel. The Panel has come to a different finding for the reasons stated above.

According to the Panel, the data has not demonstrated that competing against hyperandrogenic females, for whom the current Regulations pertain, is unfair because of better sporting ability brought on by high testosterone levels. In order to enable the achievement of a particular standard, either by comparison to testosterone or by regard to, for instance, LBM and otherwise, it is possible that developing scientific data or the compendium of established data and information will reach an adequate level of evidence of unconscionable strategic edge. The Panel takes notice of the expert testimony in this respect and considers reanalyzing the Daegu data to see if there is any indication of a link between testosterone levels and comparative finishes in professional athletics events.

 Citation: CAS 2014/A/3759

Written by

Mansi Jha

LinkedIn 

Akshay Singh Rawat

LinkedIn