LEVEL PLAYING FIELD IN FEMALE SPORTS – A FANTASY
Sport is celebrated as an epitome of fairness and justice, which binds people throughout the world, without any discrimination. In order to maintain the fairness in sports, the Sports’ Regulatory Authorities like IAAF and IOC have been forever endeavouring to, inter alia, provide a level playing field. However, the concept of ‘level playing field’ is more of a utopian illusory, for a tall person always has an advantage over other players in basketball, a person with long legs has an advantage over other athletes in sprints, so on and so forth.
Now when it comes to female sports, the authorities plead a “history of ignorance” with respect to sex verification regulations, as they have since ages overlooked the complex and non-binary nature of sex and the fact that “nature is not neat”, invariably ending up with draconian regulations, the recent one in controversy being “The IAAF Regulations Governing Eligibility of Females with Hyperandrogenism to Compete in Women’s Competition” (hereafter referred to as the ‘Hyperandrogenism Regulations’). The said regulations prima facie discriminates between female-female on the basis of androgen, in specific the testosterone level, on the premise that it is the higher level of testosterone in male that they perform better than the female, and on the conclusion that a female with high-testosterone level has an undue advantage over the other female counterparts with “normal” testosterone level. As a result a ban is imposed on the female athletes with testosterone level being higher than 10nmol/L, and shall be lifted only in the circumstance that the athlete complies with the regulations and accordingly undergoes medication to become ‘normal’ or attain ‘normalcy’, the side effects of which are not known.
The latest hit by these regulations was a 19 year old, Indian sprinter, Dutee Chand, who was banned from national and international events, because of the high testosterone-level. Instead of giving in to medication, like the several other anonymous female athletes, she contested it in the Court of Arbitration for Sport1, where she sought for quashing the ban imposed on her by IAAF and setting aside the regulations which subject the female athletes to intrusive investigations and inflict upon them indignity and stigma. The regulations were challenged on the following grounds:
- For being discriminatory on the basis of sex and natural immutable physical characteristic, which is ultra vires not only the Olympic Charter and IAAF Constitution, but also the underlying spirit of sports;
- For having no solid scientific basis or published scientific study, inter alia,
- Justifying the 10nmol/L threshold set for elite female athletes, as one of the studies show that the testosterone levels of male and female ‘considerably overlap’;
- Establishing a relationship between endogamous testosterone (i.e. naturally occurring) and exogamous testosterone (i.e. artificially acquired by administering externally, often used as a tool for doping)
While both sides, i.e. Dutee Chand as well as IAAF, had experts testifying for and against the scientific basis, the onus of proof conclusively fell on the shoulders of IAAF for proving the science behind the Regulations, which it failed at, as the premise itself was based on hypotheses and clinical trial which had excluded the outliers, resulting in an erroneous threshold limit.
However now, CAS by means of an interim award has allowed Duttee Chand to get back on the track nationally as well as internationally and alongside also suspended the Hyperandrogenism Regulations for being “scientifically unsound”. However, the said suspension comes with a rider that IAAF can make available scientific evidence to establish the basis of the Regulations within a period of 2 years, which proves to be a hanging sword over the fate of female athletes for the next two years.
Conclusively, analysing the situation from a slightly social aspect, it is interesting to note how such unsound regulations framed for providing fair-play when struck down, are celebrated as human rights victory, completely ignoring the shame the athlete and her family was subjected to and without any regard for the fact that how difficult it would be for the athlete to recuperate from such an incident and get back on track with the same zest and zeal with which she used to run earlier to such embarrassment.
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1. CAS 2014/A/3759 Dutee Chand v. Athletics Federations of India (AFI) & The International Association of Athletics Federation (IAAF).
Submitted By –
Saranya Mishra
IInd BALLB, ILS Law College,
Pune, India.