The IAAF regulations
The IAAF first introduced testosterone limits for female athletes in 2011, but the rules were suspended in 2015 by the Court of Arbitration for Sport (CAS) after a successful appeal by the Indian sprinter Dutee Chand (Chand v IAAF & AFI (CAS 2014/A/3759)).
New regulations (Eligibility Regulations for the Female Classification (Athletes with Differences of Sexual Development) were published earlier this year and planned to be put into effect by 1st November 2018. The IAAF however, has agreed to delay the implementation of its new regulations from November 2018 to March 2019 in order to avoid further delay in the proceeding brought by Mokgadi Caster Semenya and Athletics South Africa (ASA) challenging their legality.
According to new regulations they require female athletes with a naturally occurring blood testosterone level higher than five nmol/L to have medically unnecessary hormone therapy to reduce their testosterone levels to below that limit, if they want to qualify to compete in the female category for restricted events. A female athlete’s blood testosterone level must be maintained at the lowered level for a continuous period of at least six months (by use of hormonal contraceptives) and then must remain lowered for as long as she wishes to maintain eligibility. At present, the restricted events are 400m, 800m, 1500m races, one mile and all other Track Events over a distance between 400m and one mile (including relays).
In the Explanatory Note to the Regulations, the IAAF states that most females (including elite female athletes) will have a naturally occurring level of testosterone between 0.12 to 1.79 nmol/L. It states that, after puberty, the normal male range is between 7.7 and 29.4 nmol/L. The Regulations and Note both stress that the Regulations will be applied in strict confidence and are not intended to harass or stigmatise an athlete or infringe her dignity or her privacy.
In a report which post-dates the Chand CAS decision but pre-dates the 2018 regulations, the UN special rapporteur expressed concern about the rights violations visited upon intersex people on the basis of clinical evidence which is contested and queried whether there is a genuine substantial performance advantage which warrants exclusion (UN Human Rights Council, Report of the Special Rapporteur, April 2016). The UN report notes that a number of athletes have undergone gonadectomy (removal of reproductive organs) and partial cliterodectomy (a form of female genital mutilation) in the absence of symptoms or health issues warranting those procedures.
The reports recommends that sporting bodies should remove any policies that require women athletes, including intersex and transgender women athletes, to undergo unnecessary medical procedures in order to participate in competitive sport.
The Regulations are not without their critics: in an open letter, the Women’s Sport Foundation and Athlete Ally (supported by a number of other charities and celebrities including Billie Jean King) criticised the IAAF for “exacerbating discrimination against women in sport who are perceived as not prescribing to normative ideas about femininity...no woman should be required to change her body to compete in women’s sport....these regulations continue the invasive surveillance and judgement of women’s bodies that have long tainted women’s sport”.
They have also been said potentially to violate the fourth fundamental principle of the Olympic Charter, which provides: the practice of sport is a human right; every individual must have the possibility of practising sport, without discrimination of any kind and in the Olympic spirit, which requires mutual understanding with a spirit of friendship, solidarity and fair play.
Human Rights Watch, an international organisation which challenges human rights abuses, in an open letter dated 24 July 2018 criticised the Regulations. It drew on the principles identified by the UN Report, and applied a legal analysis familiar to those who use the European Convention on Human Rights. The letter states that “there is no escaping the reality that the regulations have the effect of coercing some women to undergo medically unnecessary procedures to alter their hormone levels....we believe the IAAF regulations encourage violations of internationally-protected human rights, including the right to privacy, health, bodily integrity, dignity and non-discrimination”. It noted that “research … has found, institutional and medical treatment of [people with intersex traits] is frequently motivated by prejudice presented as science”.
IAAF response to criticisms
In its response to the Women’s Sport Foundation letter the IAAF states that it “has not and will never try to prevent women from participating in athletics”. All women, it says, will be eligible to compete if they “take measures” to lower their testosterone, to put them on a level playing field with the rest of the female population. The choice, it says, “is theirs”.
The IAAF likens the category restriction imposed upon women as akin to age or weight restrictions. For example, under 20s competitions exist because those who are over 20 have a natural biological advantage over younger athletes who are still developing into adults. However, as HRW observes in its letter, “an athlete who chooses to change her body to conform to a specific category does so in the absence of invasive testing and implicit questioning of an essential characteristic of her identity as a human being”.
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Fenella Morris QC39 Essex Chambers
Fenella Morris QC is a leading advocate with a practice that encompasses public law and human rights, and every aspect of regulation and professional discipline. She has been named by a legal directory as a Star of the Bar and appeared in many landmark cases before the Supreme Court and European Court of Human Rights.
Her clients include regulators – from the Professional Standards Authority for Health and Social Care to the Civil Aviation Authority, and those whom they regulate – from major companies to nomads on the Alternative Investment Market.
She has advised those in the public, private and voluntary sectors on a host of novel equality and inclusion issues, including those raised by gender identity and changes in it. Her professional interest in sport includes advising on its role in regeneration projects, and she is currently acting in the litigation concerning the Ricoh Arena in Coventry, Coventry City FC and Wasps.
She is a contributor to a number of legal text books, including the 9th edition of Disciplinary and Regulatory Proceedings. Fenella has recently been elected a Master of the Bench of Middle Temple; her work there focuses on mentoring those entering the profession from what are termed non-traditional backgrounds.
Alexis Hearnden39 Essex Chambers
Alexis Hearnden is an experienced advocate with a successful regulatory and developing sports law practice. She acts for professionals and regulators across a range of professions (including vets, farriers and solicitors) before tribunals, as well as on appeal and in judicial review proceedings.
Alexis also acts for the Professional Standards Authority, GMC and GDC on appeal. She is recommended as a leading junior by Chambers UK and Legal 500 in the areas of Professional Discipline.
As a result of her wider Public Law experience, Alexis has an interest in the issues which arise around safeguarding vulnerable adults and children.