Charlotte Hurst, of Harrison Drury’s sports law team, discusses the controversial new Athletes with Differences of Sexual Development classification and the legal options open to female athletes looking to challenge the rules.
Elite female track athletes with elevated testosterone levels may soon be required to take medication to modify their chemical makeup or face having to compete against men.
This is because of new eligibility regulations issued by the International Association of Athletics Federations (IAAF) which stipulate a new female classification for Athletes with Differences of Sexual Development (DSD).
The new regulations, initially envisioned for 1 November 2018, will come into force as of 26 March 2019 and will supersede the previous ‘Regulations Governing Eligibility of Females with Hyperandrogenism to Compete in Women’s Competition’.
The IAAF’s regulations are hugely controversial because it’s position is that testosterone is the distinguishing factor between male and female performance. Many critics believe this stance is unfair and that high naturally-occurring testosterone levels should be looked at upon as a natural advantage.
Why are the new DSD eligibility rules being brought in?
According to the IAAF President, Lord Sebastian Coe, the new regulations “are about levelling the playing field to ensure fair and meaningful competition in the sport of athletics.”
These new regulations will apply to international events and track and field events ranging in distance from 400m to one mile. The reason for the delay in the introduction of the new rules is that the IAAF is awaiting the verdict of a legal challenge by South African world and Olympic 800m champion, Caster Semenya.
The revised schedule for the introduction of the new regulations has the potential to damage the outdoor season for female track athletes who do not elect to take medication prior to the ruling, which is currently expected on or before 26 March 2019, which is merely six months and two days before the start of the World Championships 2019 in Doha, Qatar.
How is DSD determined under the new IAAF rules?
A female athlete is considered to have DSD when they have serum levels of natural testosterone at 5nmol/L or above. According to IAAF documents, most females have low levels of serum testosterone ranging from 0.12 to 1.79nmol/L, whereas female athletes with hyperandrogenism can have levels of testosterone in the typical male range of 7.7 to 29.4nmol/L.
The IAAF has concluded this gives a sporting advantage to female athletes with increased levels, as it is scientifically proven that testosterone increases strength, muscle mass and haemoglobin levels, which helps to increase an athlete’s stamina and oxygen uptake.
In a study commissioned by the IAAF and the World Anti-Doping Agency, published by the British Journal of Sports Medicine, over 2,000 male and female athletes competing in the 2011 and 2013 IAAF World Championships had their serum androgen concentrations mass spectrometry-measured.
One of the findings of the study was that female athletes with high testosterone levels have a significant competitive edge over peers with lower testosterone levels in sports such as 400m, 400m hurdles, hammer throw and pole vault. However, others argue that the IAAF’s study is statistically and scientifically flawed.
What are the options for female athletes with DSD?
Similar rules were successfully challenged in 2015 by female sprinter Dutee Chand whereby the Court of Arbitration for Sport (CAS) opted in this instance to suspend the world body’s Hyperandrogenism Regulations.
This has allowed time for the IAAF to gather further evidence to put before CAS. Unlike Caster Semenya, it is important to note that Chand will not be affected by the new regulations due to only running 100 and 200m events, which will not be covered by the new regulations.
In terms of the new rules, it may be determined that female athletes with the higher testosterone levels may be required to take medication to bring those levels down, which poses ethical and legal dilemmas in taking medication when performing at an elite level.
Similar dilemmas are clearly posed if the ultimate determination is that female athletes with the increased levels of testosterone are forced to compete in these events with their male counterparts.
At the time of writing, the new regulations have not yet come into force. However, female athletes at all levels should begin to take note of the potential implications and seek expert advice where necessary, particularly on the applicability of the regulations to them.
Clearly, this is an area of continued development and interest and, as noted above, the eagerly anticipated verdict of the Caster Semenya case may ultimately have an impact on the implementation of the new regulations.