Dutee Chand Presentation Richard H. McLaren Faculty of Law, Western University Member, Court of Arbitration for Sport (CAS) Counsel, McKenzie Lake Lawyers LLP President, McLaren Global Sport Solution Inc. Arbitrator at 5 Olympic Games
Today s Presentation Dutee Chand s CAS case Background Born: Odisha, India; February 3, 1996 Competed Asian Junior Track & Field Championships in Taipai May 2014 Won 3 golds
Today s Presentation Hyperandrogenism History of Gender Testing IAAF Hyperandrogenism Regulations Dutee Chand s Background Chand s Issues at Arbitration Future of Hyperandrogenism in Sport
Hyperandrogenism Endocrine disorder DSD: Differences (or Disorders) in Sex Development Virulization
World Athletics (Track & Field)
World Athletics (Track & Field)
Policing the Dividing Line Late 1960s: Ewa Klobukowska, Barr body analysis
History of Gender Testing 1985: Androgen Insensitivity 1993: Y Chromosome 1996: Y Chromosome + Phys. Examinations 2006: IAAF Policy on Gender Verification
The Catalyst to Change: Caster Semenya Rapid rise in sport: 2008-2009 Media fiasco (gender & medical files) 2011 IAAF policy changes Confidentiality Privacy Reputation
2011 Revised IAAF Regulation 1.3: No female with HA shall be permitted to compete in the female category 6.6: Places HA athlete under burden of proving that her body is resistant to androgens & therefore, her elevated T levels do not confer any competitive advantage Current Regulations: Testosterone Levels
Praise & Criticism Of Recent IAAF Regulations Praise Clear notice of expectations Well explained exemption process Confidentiality Appeal rights Criticism Unfair Unscientific Models Western ideals of femininity High T levels success in female sports
Chand s Ineligibility
Chand s Ineligibility
Background to CAS Arbitration 2013: Indian Government s Ministry of Youth Affairs and Sports promulgated a Standard Operative Procedure June 2014: Director of AFI meets with Chand, asks her to undergo a routine doping test July 2014: Chand notified by SAI doctor that she is ineligible to compete for 2 upcoming international events August 2014: Chand is provisionally suspended from competing athletically by AFI September 2014: Chand files an appeal to CAS
Background to CAS Arbitration
Chand s Issues With Regulation 1) Discriminatory 2) Insufficient Scientific Evidence 3) Disproportionate to Objective
Issue 1: Discrimination Chand submits that HA Regulations discriminate against two innate, immutable traits: (A) Sex (B) A Natural Physical Characteristic
Allegations of Discrimination (A) Sex: no testosterone limit for male athletes (B) Natural Characteristic: no prohibitions on other natural genetic advantages
IAAF s Justification for Discrimination Differential treatment is necessary to protect fair competition
CAS Panel s Conclusion on Discrimination HA Regulations are discriminatory Onus shifts to IAAF prove that HA Regulations are necessary, reasonable & proportionate
Issue 2: Insufficient Scientific Support Contentious area experts on either side 2 Sub-Issues: (a) Does T impact sports performance? (b) Does the body respond differently to endogenous & exogenous T?
Issue 2(a): T Impacts Sports Performance Relationship between T & LBM is well established LBM contributes to improved sports performance CAS Panel upheld IAAF s choice of using T level as a marker
Issue 2(b): The Difference Between Endogenous & Exogenous Testosterone (2) Does the body respond differently to endogenous and exogenous T? Chand bore the onus: her position was that endogenous & exogenous T same effects on muscles growth Expert evidence lacking on both sides Much of Chand s expert testimony was problematic and discounted by IAAF
The IAAF s Position T molecule = same for endogenous & exogenous Body cannot distinguish origin of testosterone Scientific vacuum Virilisation = best analysis of effects of T regardless of source
The Panel s Conclusion on Issue 2: Sufficient Scientific Support Chand did not establish that IAAF was incorrect to rely on T as marker for HA Regulations Chand s arguments were sociological explanations and deductions given by experts Panel was satisfied with science for using T as a marker for Regulations
Issue 3: Whether the HA Regulations are Justified as a Proportionate Means of Attaining a Legitimate Sporting Objective Panel accepted that HA Regulations are discriminatory IAAF bore burden of proving that Regulations are justified
The IAAF s Justification for Discrimination 1) Sport requires some categorisation to ensure fair competition 2) T is best criterion to ensure level playing field
The Panel s Framing of the Issue of Proportionality Is it reasonable and proportionate to exclude some female athletes from the female category to ensure fair competition?
Concept of Fair Competition in Sport No athlete should be prevented from competing in any category because of genetic makeup Such a rule would contradict the fundamental principle of Olympism Such a rule would only be valid if it was a proportionate means of achieving fair competition
The Underlying Assumption of the HA Regulations HA females have a performance advantage similar to males Therefore, HA females have a significant performance advantage over their non-ha competitors This advantage outranks the influence of any other genetic or biological factor
A Significant Competitive Advantage Remaining question: Do women with T levels of 10 nmol/l or more have a competitive advantage so that they re precluded from competing as females? Outcome: Currently no available evidence - as to the degree of advantage of HA athletes with levels of endogenous T above 10 nmol/l.
The Panel s Conclusion on Lack of scientific data Proportionality Endogenous T levels may increase performance, but the degree of advantage is unknown Other variables could affect performance advantage IAAF could not prove that high endogenous T = significant competitive advantage Panel: HA Regulations do not fulfill their objective
The Panel s Remedy HA Regulations suspended for 2 years IAAF can submit evidence concerning the degree of competitive advantage of HA females to CAS Athlete will be able to respond to evidence If no evidence brought forward in 2 years, Regulations will be deemed void
Post-CAS Suspension of HA Dutee Chand: Rewrote the 100m meet record (11.73s) at the Indian National Games in February 2015 Member of Indian s women 4x100m relay quartet that finished 4 th in June 2015 at the Asian Athletics Championship Successfully defended 200m sprint title (24.03s) in August 2015 at the Federation Cup National Athletics Junior Championship Regulations
Future of HA in Sport Worley v. Ontario Cycling Association Canadian transgender cyclist Alleging discrimination of sex contrary to Human Rights Code Human Rights Tribunal has jurisdiction to hear case More litigation at the domestic level can be expected