As pretty much everybody else except those who were expert witnesses to the case or the judges, I was in London on Wednesday May 1st anxiously waiting for 12 pm for the Court of Arbitration for Sport to release the ruling on Semenya’s and Athletics South Africa’s appeal on the 2018 IAAF Regulations on Eligibility of female athletes with disorders of sex differentiation (DSDs) to compete in the female category.
Now we all know that in the press release announcing the ruling on Wednesday May 1st, (https://www.tas-cas.org/en/media/media-releases.html), CAS dismissed both challenges on grounds that regulations are a discriminatory although necessary means to regulate the eligibility of women with DSD to run in the female category.
However, not many may have noted that in the same press release CAS also advised IAAF to defer their applications of the regulations for two events (1,500 and the mile) until they have more evidence about a concrete advantage because of “difficult of relying on concrete evidence” . Ironically, but sad, I note that IAAF has not really taken up this piece of advice as they have given 1 week (yes, 1 week!) to athletes to lower their testosterone levels in advance of the IAAF World Championships in Doha, as can be read here: https://www.iaaf.org/news/press-release/cas-female-eligibility-regulations.
In a press release on Thursday May 2nd in Doha ahead of the track meeting today which will see Semenya competing for the last time before the new regulations come into force on May 8th, a seemingly unfazed IAAF President Sebastian Coe praised the CAS decision and added: “The question is pretty straightforward, very straightforward”.
Pace Coe, as a matter of fact, the question of whether female athletes with high levels of testosterone should be able to compete in the female category is anything but straightforward, as pretty much everybody else in the world seems to think except Coe who is downplaying the complexities of the case.
Having worked on Semenya’s case since 2009, I have spent a lot of time investigating the question of what type of evidence CAS should be asking for to achieve a resolution of a case which has ignited controversy for the last ten years. In what follows I will explain why a different ruling, based on considering different type evidence, could have been possible. In order to do so it is necessary to take a step back and look at Dutee Chand’s case in 2015.
In the same press release released on Wednesday and announcing the dismissal of both challenges, CAS stated that “The CAS Panel was restrained in its task, due to the strict framework of the arbitration, to solely determine whether the DSD regulations were invalid or not”.
The constraints or “strict framework of arbitration” on what CAS could rule or could not rule on in this case can only be understood by taking a step back and looking at the 2015 Dutee Chand vs AFI vs IAAF CAS Interim Arbitral Award, and at the grounds on which the former IAAF Hyperandrogenism regulations were suspended. The Indian sprinter Dutee Chand appealed to CAS after having targeted by the former Hyperandrogenism Regulations, which required athletes to lower their testosterone levels to less than 10 nmol/lit (hence, less restrictive) to be able to participate in any events. CAS suspended the regulations in 2015 on grounds that the regulations were discriminatory on the female category as only women were asked to lower their testosterone levels, and that there was not enough evidence about the correlation between increased levels of testosterone and a performance advantage in competition. However, The CAS panel at that time 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 suspended the regulations for up to two years (later, extended) in order to give IAAF time to do research and come up with more evidence about the quantitative relationship between enhanced testosterone levels and improved athletic performance in hyperandrogenic athletes.
So what CAS requested at that time was to prove that there is indeed an advantage derived by higher levels of testosterone. While the suspension of the regulations was obviously good news in the short term for Dutee Chand, Semenya and other athletes with hyperandrogenism, it was concerning right from the bat 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, in the Dutee Chand vs AFI vs IAAF case, CAS bought into the assumption that if it were proven that testosterone provide an athletic advantage, then the regulations should be reinstated. And this is exactly what happened. Indeed, the IAAF was quick to happily 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.
Going back to the most recent CAS ruling on Wednesday, in their press release announcing the dismissal of both challenges, CAS stated that “The CAS Panel was restrained in its task, due to the strict framework of the arbitration, to solely determine whether the DSD regulations were invalid or not”. I have explained above what “strict framework of the arbitration” means in light of the Dutee Chand’s Interim Award in 2015. Now onto the second question: what does “difficulty of relying on concrete evidence” mean?
What this means is that not even the first requirement (of more evidence between levels of testosterone and performance advantage) has been met by IAAF. The evidence submitted by IAAF in support of the 2018 DSD regulations is just not robust enough, as demonstrated by myself with Simon Franklin (London School of Economics) and Jonathan-Ospina Betancurt (Brighton University, Isobel Burgos University) for British Journal of Sport Medicine (https://bjsm.bmj.com/content/52/7/420 ) among others who have challenged the science underlying the regulations. A consistent results of the different challenges is that the data by Bermon and Garnier in 2017 and submitted by IAAF to CAS as evidence supporting the new DSD regulations could not been replicated, and the 5 events selected in the regulations are more likely than not to be false positives. When this happens in science, we arguably have a problem. Even more so, when the data are used as a basis for policies and regulations to control bodies.
So going back to CAS’ ruling on Wednesday, what does the dismissal mean in practice, in light of the “strict framework” of the arbitration, and of the “difficulty on relying on concrete evidence”?
Basically, CAS panel was persuaded by IAAF expert witnesses (at least, a majority of the judges have, I am anxiously waiting to see if a “dissenting opinion” will be released in the public domain any time soon!) that regulations to lower testosterone levels in female athletes with DSDs are a necessary and proportionate, even if discriminatory, means of achieving what IAAF’s calls a “level playing field”. This persuading was arguably achieved on the basis of a “theoretical advantage” (as stated in the press release on May 1st) derived by testosterone in a sufficient number of DSD athletes in the 1500m and 1 mile events, but not on evidence of a concrete advantage because of problems in replicability and false positives with the evidence submitted by Bermon and Garnier in their 2017 paper (https://bjsm.bmj.com/content/51/17/1309) and underlying the IAAF DSD regulations.
By ruling in 2015 that IAAF would have to come up with more evidence about the advantage derived by testosterone CAS set up the case in a way to favour IAAF buying into the assumption that more evidence would settle the question of unfair advantage but it does not.
Put it simply: more evidence about the correlation between increased testosterone and performance advantage does not settle the question of whether this advantage is unfair, or not. A wrong question leads necessarily to a wrong answer.
Since Semenya’s case first emerged at the Berlin World Track Championships in 2009 (https://jme.bmj.com/content/36/6/378.info), I have always made the point that more evidence would not settle the question of whether an advantage would be unfair. More recently, here: https://bjsm.bmj.com/content/early/2018/04/11/bjsports-2018-099387.info
In order to settle the case, the following question should – and, could! – have been addressed by CAS:
In what (if any) morally relevant ways is testosterone dissimilar from other genetic and biological variations that confer a performance advantage?
This question would have shaped that kind of evidence that CAS should have been requesting in a different way, and would have led to different constraints on the type of verdict that CAS could have made on Semenya’s appeal.
However, exactly because of the way CAS had ruled in the Interim Award in the Dutee Chand case in 2015, this verdict, although disappointing, was not surprising to me.
A different ruling could have been possible. Different constraints could have been imagined. Less reductionism and less buying into scientific assumptions could have been contemplated. As noted with my co-author Paolo Maugeri in the Journal of Medical Ethics when this story first broke in 2010 ( https://jme.bmj.com/content/36/6/378.info), “We cannot expect science to provide ready-made answers on our behalf: decisions have to be taken, not found”. The verdict by CAS s extremely problematic as it falls short of recognizing that scientific and clinical knowledge themselves are value-laden, and that the answer to the question of whether testosterone confers an advantage cannot be found only in science or clinical evidence, as it is a question of fairness.
Story could have been made on May 1st. It wasn’t. But it still can. With an appeal that broadens the type of evidence to be considered, and aims to respond to the key question I have highlighted above.
I spoke against CAS ruling and in favour of Semenya’s to Imran Khan for Al Jazeera Inside Story on May 2nd: https://www.aljazeera.com/programmes/insidestory/2019/05/athletics-rules-unfairly-target-caster-semenya-190502192112795.html
I can be reached at: silvia.camporesiATkcl.ac.uk
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