THE BLOG
07/30/2015 02:41 pm ET Updated Jul 29, 2016

Clear Skies Overhead for Dutee Chand, But Clouds Loom on the Horizon

Better late than never, one could say.

The Court of Arbitration for Sport (CAS) announced yesterday that the International Association of Athletics Federations (IAAF) regulations on Hyperandrogenism have been suspended until further evidence can be provided.

The suspension comes too late for Caster Semenya, who was banned from competition in 2009 at the Berlin Track Championship. Semenya released her very first interview to the press (BBC) on May 20, 2015. In the interview Caster says that she could "not have survived had not it been for her family." She is described by Ben Smith (the interviewer) as "an athlete at peace with a new coach, a new training group and a new hairstyle," and with a future full of "hope" for a "new beginning." But the suspension of the regulations comes too late for Semenya, who had to go through a humiliating ordeal and has never been able to run as fast as in 2009 since her return to competition in 2012.

The suspension comes too late also for at least four other unnamed female athletes who, as reported by Fenichel and co-authors in the Journal of Clinical Endocrinology and Metabolism in 2013, were found to have levels of androgens outside the range set by the policies and they were subjected to unnecessary medicalization procedures that had nothing to do with reducing testosterone levels in sport, including vaginoplasty and partial cliteridectomy.

The suspension does not come too late for Dutee Chand, though, whose appeal to the CAS has resulted in this landmark decision, which is a reason to rejoice not just for her but for all female athletes with Hyperandrogenism.

But a closer look at the CAS Interim Award gives us reasons to worry.

Indeed, the CAS panel in charge of the procedure has suspended the "IAAF Regulation Governing Eligibility of Females with Hyperandrogenism to Compete in Women's Competition" (the "Hyperandrogenism Regulations") for a maximum period of two years in order to give the IAAF the opportunity to provide the CAS with scientific evidence about the quantitative relationship between enhanced testosterone levels and improved athletic performance in hyperandrogenic athletes.

The panel has concluded that there is "presently insufficient evidence about the degree of advantage that androgen-sensitive hyperandrogenic females enjoy over non-hyperandrogenic females" (paragraph 522, Interim Award) and have asked IAAF to demonstrate a "correlation" between levels of testosterone in female athletes and competitive advantage.

So what CAS has requested is to prove that there is indeed an advantage derived by higher levels of testosterone. While the suspension of the regulations is obviously good news in the short term for Dutee Chand, it is concerning that the proviso for the suspension of the regulations falls within the scientific track of the IAAF. Indeed, the panel explicitly states that the IAAF assumption (that increased testosterone confers an advantage) "may well be proved valid" (paragraph 543, Interim Award) but sufficient evidence has not yet been provided to show evidence of correlation, and currently the "onus of proof remains" on the IAAF (paragraph 534, Interim Award).

In other words, the CAS is buying into the assumption that if it were proven that testosterone provide an athletic advantage, then the regulations should be reinstated. Indeed, the IAAF is happy to note in the CAS Panel's ruling that there is a sound scientific basis to the Regulations in that endogenous testosterone is "the best indicator of performance differences between male and female athletes," and the court's acceptance that hyperandrogenic female athletes may have a competitive advantage over athletes with testosterone levels in the normal female range.

As I argued before (for the Journal of Medical Ethics in 2010 ; for the American Journal of Bioethics in 2012; and for the Huffington Post in March 2015 ), adopting such a line of defence grounded in science falls ultimately prey to scientific assumptions. Instead, decisions informing the construction of categories in sport are not informed only by science, but also by social values on what we think is fairness in sports competition.

What I have been suggesting was a separate line of defence for Dutee Chand at her appeal:

Even if testosterone did confer an athletic advantage, which could be proven by the IAAF upon submission of further evidence, this advantage would not be unfair. This is because singling out, and setting a limit on, hyperandrogenism from other biological variations that may confer an advantage is - at best - an inconsistent policy: there are plenty of other variations - biological and genetic alike - that are not regulated by the IAAF and, even though advantageous for athletic performance, they are not considered unfair for competition, as can be read here.

Why aren't such genetic and biological variations considered unfair? Because they are part of what we think elite athletes are. We think that excellence is achieved through the combination of natural talent - innate biological and genetic differences that set these athletes apart from the rest of us -- and the efforts in training that the athletes put forth to maximize what their talents offer. This is what makes sports competition valuable and admirable.

So then why is hyperandrogenism singled out? It is singled out as it challenges our deeply entrenched social beliefs about women in sport in a way that other variations do not.

While the CAS decision clears the Bejing track for competition for Dutee Chand at the forthcoming World Track Championship August, clouds loom at the horizon for all female athletes with hyperandrogenism, including Dutee Chand. We should be critical of the proviso the suspension has been granted on, and prepare to fight for women's right to compete based on true grounds of fairness.