Sports law chatter this week has been dominated by the decision of the IAAF — the world governing body of athletics — to release its regulations on Athletes with Differences of Sexual Development, writes Jack Anderson.

The regulations concern the eligibility of intersex athletes to compete in “restricted track and field events for female athletes”, including a spectrum of events ranging from the 400m to the mile.

The regulations will require that affected athletes, notably world and Olympic 800m champion Caster Semenya, must reduce their blood testosterone level in order to compete in the stated events.

The IAAF have argued that regulations are an attempt to ensure fairness in competitions within the female classification (generally) and that the regulations are “in no way intended as any kind of judgment on or questioning of the sex or the gender identity of any [individual] athlete”.

Moreover, the IAAF point out that its regulations provide three alternatives for affected athletes:

  • The first is that female athletes who do not wish to lower their testosterone levels are still eligible to compete in national track and field competitions (at any event) and in international track and field competitions, so long as the event is not within the restricted spectrum of events.

The counterpoint that can be made on this is that a select number of international middle-distance female athletes, whose current livelihood is dependent on their success at these distances, will now be unreasonably denied access to the most lucrative level of their sport unless they comply with the invasive regulations.

Put another way, and in an analogy to employment law, the question is in what other walk of life would an employer mandate that, in order for a set number of employees (only) to continue to be remunerated at their current level, those employees must change the physiology of their body?

  • Secondly, the IAAF have also said there is no bar on the affected athletes competing in the male classification at any athletic competition, international or otherwise, which is a statement that, at best, can be described as superfluous.
  • Thirdly, the IAAF regulations provide that the affected athletes can compete in any applicable intersex or similar classification that may be offered at a national or international athletics meet in any event.

Interestingly, the IAAF did not impose a duty on itself to “offer” this third category, something which may be seen to undermine its commitment in this regard.

The reaction, particularly in Semenya’s native South Africa, to the IAAF’s regulations has been outrage. Accusations of racism to breaches of human rights law have been levelled at the IAAF. More specifically, there has been criticism of the personally invasive and ethically questionable nature of the IAAF’s response.

The latter has, for example, focused on the anatomical advantages that Michael Phelps and Usain Bolt had compared to their opponents.

Being fair to Caster Semenya and athletes with a difference

In a 2008 article in Scientific American, the “freakish” nature of aspects of Phelps’ anatomy was discussed. The review, recalling Leonardo da Vinci’s Vitruvian Man (famous sketch of a naked male showing his arm-leg-torso ratios), noted that your height normally corresponds closely to the distance between your outstretched hands.

Phelps’s arms extended 80 inches (203 centimetres) tip to tip, and his body measures in at 76 inches (193 centimetres) in height. Did, the magazine asked, this longer “wingspan,” give Phelps an anatomical advantage?

In answering, the article also noted that Phelps’ (US) size-14 feet reportedly bended 15 degrees further at the ankle than most other swimmers, turning his feet into “virtual flippers”. This flexibility was apparently replicated in Phelps’ knees and elbows, possibly allowing him to get more out of his technically perfect swim-stroke.

Phelps won 23 Olympic gold medals in swimming, but his advantages remained uncurbed by regulation throughout his career.

A similar argument can be made with Bolt, whose height of 195cm allowed him to take approximately 41 steps in a 100m race compared to opponents, who took between 43 to 50 strides. In simple calculation, Bolt’s opponents had strides around 20cm shorter than Bolt’s two-and-a-half metre running step.

In contrast, former athlete and now law professor at Duke Law School in the US, Doriane Lambelet Coleman, argued this week in the The New York Times that the rationale for the IAAF’s intervention is because men develop significant advantages in size, strength, and power over women, due in large part to men’s much higher levels of circulating testosterone from puberty onwards.

Coleman highlights that this sex-based athletic performance gap of 10% to 12% is of such a wide nature that “many non-elite males routinely outperform the best elite females”.

In this, Coleman points to the fact that last year in the US, 36 high school boys ran faster that Flo-Jo’s “seemingly unassailable” 100m world record of 10.49 set in 1988. Intervention is thus necessary, Coleman says, and along the lines suggested by the IAAF, in order to curb the “disproportionate” testosterone-based power of intersex athletes.

Again, the scientific methodology and data leading to the above conclusion is questioned by some. Moreover, those in support of intersex athletes argue that gender cannot be encapsulated solely by means of a testosterone test.

There is, however, general agreement that the IAAF’s proposed intervention would achieve its objective in the sense that the times posted by intersex athletes who agree to it would be slower. Leading sports scientist Ross Tucker has estimated that Semenya’s 800m times would go from 1:54 to between 2:01 and 2:03.

The key question is whether the intervention is justified and this may well be a matter of law to be argued at the Court of Arbitration for Sport (CAS). This issue has already been the subject of several CAS rulings, mainly relating to Indian sprinter Dutee Chand, who succeeded in getting previous IAAF regulations overturned.

Given the possible human rights violations, it might be possible for an athlete to bypass sport’s internal dispute mechanisms and go to her national courts directly, which would set an interesting precedent in terms of human rights compliance.

Whatever fora the dispute goes to, there are four key legal questions that need answering and the burden of proof will be on the IAAF:

  • Do the imposed restrictions have a legitimate objective? Is the manner in which the regulations propose to achieve its objectives (mandating lower testosterone levels) reasonable and not arbitrary?
  • Are the IAAF’s regulations a proportionate response, ie, does the overall sporting interest or objective pursued by the IAAF’s regulations outweigh the harm done to the affected individuals’ rights?
  • One important question that I would ask is whether the IAAF approach is necessary at all. It is a crude phrase in the circumstances but “hard cases make bad law”. The IAAF says the high incidence of intersex athletes in these events (140 times that of the normal population) means something must be done.

Really? Remember, the UN estimates that only 1.7% of new-born babies are intersex.

It may be the case that a court or CAS takes what is called the Occam’s razor approach to this issue, sometimes called the principle of parsimony: Competing hypotheses should be settled by selecting the one that makes the fewest assumptions. It is possible that a court could decide that, for the time being, at least, no regulation (the status quo) is the least worst option when compared to the IAAF’s proposed regulations.

  • Finally, the IAAF’s regulation do not come into effect until November 1. It means that before Semenya potentially has her performance “de-enhanced” (an attribution strongly rejected by the IAAF) she may yet have a chance to break one of athletics’ most iconic world records: The 800m time of 1:53.28 set by Czechoslovakia’s Jarmila Kratochvilova in 1983. In an ironic twist, that record is regarded by many to be the result of performance “enhancement” (an attribution strongly denied by Kratochvilova).

What will be the status of both records on the IAAF’s books at the end of the year?

- Jack Anderson is professor of sports law at the University of Melbourne and adjunct professor at the University of Limerick.

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