Category Archives: Philosophy of Sport

New paper out for Journal of Medical Ethics: “When does an advantage become unfair? Empirical and normative concerns in Semenya’s case”

I published a new paper for the Journal of Medical Ethics titled “When does an advantage become unfair? Empirical and normative concerns in Semenya’s case”.

jmeHere’s the abstract:

There is a fundamental tension in many sports: human sex is not binary, but there are only two categories in which people can compete: male and female. Over the past 10 years, the International Association of Athletics Federations (IAAF) regulations have been at the centre of two notable legal disputes. The Court of Arbitration for Sport (CAS) reached two contradictory rulings: in the first case (Dutee Chand vs Athletics Federation India and IAAF), the IAAF regulations for the eligibility of athletes to compete in the female category were suspended (24 July 2015) on grounds of “discrimination against the female category”; in the latter (Caster Semenya and Athletics South Africa vs IAAF), the regulations were reaffirmed (1 May 2019) on grounds that although discriminatory, they are necessary to maintain a “level playing field” and to “protect” the female category. Although Semenya’s case has paved the way for questioning existing gender norms in sport, a new stable norm has yet to emerge from her case. The pharmacological solution put forward by IAAF to the tension between fairness and inclusivity of bodies non-conforming to two sexes is not, however, the only possible solution/resolution to the case, as I aim to show in this paper. Here I present some reflections on this topic and suggest how CAS should approach the case if it hopes to resolve it.

The full text can be accessed here:

https://jme.bmj.com/content/early/2019/09/15/medethics-2019-105532.full

Drop me a line if you don’t have access and would like to get a copy of the paper.

My response to CAS ruling on Semenya’s case: Why this is a disappointing, although not surprising, decision. And what type of evidence should be considered in an appeal.

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.

semenyaNow 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.

End.

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

Forthcoming new Routledge book (March 2018) “Bioethics, Genetics and Sport”

I am excited to announce that a new book is currently in press for Routledge!

9781138892248The book is titled  Bioethics, Genetics and Sport”, is co-authored with Mike McNamee (Swansea University) and will be published in March 2018.

Here’s a sneak peek of the table of contents:

Preface

PART I: “Genethics, Sports Medicine and Sports Science”

Chapter 1: The nature of genetics and its place in medicine and sport

The aim of this chapter is to introduce the reader to key concepts in genetics and to the methodological approaches in the study of the genetic bases of sport performance. We first introduce some key terms that are integral to the debates concerning the use of genetics in sports. We then offer an overview of the studies into the genetics of sport performance from early ‘60s up to now, focusing on the three main approaches to investigate the genetic basis of sport performance: candidate genes association studies’, ‘genome-wide studies’, and ‘genome wide association studies’ (GWAS). We note how many, though not all, factors that are relevant for sport performance can be measured and quantified. We also note several epistemic caveats that need to be pointed out concerning each approach if we are to proceed to a proper evaluation of them for ethical deliberation.

Chapter 2: What role for genetic testing in sport?

 In line with the premise of this volume to discuss scenarios grounded in feasible science, and not in science fiction, in this chapter we discuss genetic tests for injury prevention in four cases (ii) sudden-cardiac death related conditions; (ii) concussion-related trauma brain injuries; (iii) over-exertion complications related to sickle-cell anaemia trait; (iv) Achilles tendinopathies and anterior crucial ligament injuries. Beyond testing as a potential precursor to therapeutic interventions, we also discuss the role of genetic testing for (v) training optimisation. We argue that there is a role for genetic testing in sport, but only after some relevant distinctions have been made with respect to its aims, and even then, that role is a limited one.  We do not discuss in this chapter genetic testing for talent identification and development, which are the focus of chapter 3 in this volume.

Chapter 3: Genetic Testing for Talent Identification and Development

In this chapter, we discuss the ethics of genetics-based talent identification programmes in sports. We discuss the validity and reliability of the tests and the claims made by direct to consumer companies, before presenting a range of ethical issues raised by these tests, which we frame in terms of parental/guardian duties, children’s rights, and best interests. We argue that greater ethical emphasis needs to be put on the parental decision on the wellbeing on the child going forward, not on ex post justifications on the basis of positive or negative consequences. Such decisions must address wider questions of what a good (sports)parent ought to do help the child flourish, and how to balance the future-adult focus necessary to nurture talent with the wellbeing of the child in the present. We conclude that current genetic tests for “talent” do not predict aptitude or success to any significant degree and that coaches and parents should be discouraged from using them.

Chapter 4: Biobanking in Sport: Governance and Ethics

In this chapter we provide an overview of biobanking, commencing with an introduction to the nomenclature of the field.  We then present some key epistemological issues raised by the sheer complexity of biobanking research, and discuss the related ethical issues raised, i.e. privacy, security, ownership of data. We then proceed to discuss how biobanking research also raise challenges to traditional forms of informed consent, the cornerstone of research ethics for more than fifty years, and how new models of informed consent have been developed for biobanking research that attempt to meet the unique epistemological challenges of such research. We present several such models arguing for their benefits and weaknesses in ethical terms. We use the Athlome Consortium as the largest current example of collaborative sports genetic biobanking and make ethical recommendations in relation to its development.

Chapter 5: Gene Transfer, Gene Enhancement and Gene Doping: distinguishing science from science fiction

In this chapter we discuss whether genetic technologies aimed at enhancing performance are to be considered as a form of innovation or a new form of doping. We start our discussion by presenting a recent case of gene transfer self-experimentation at the cross-roads of therapy and enhancement. We then proceed, in line with the spirit of our volume, to analyse some feasible targets of gene transfer technology aimed at enhancing athletic performance. Among these: growth hormone, insulin-growth factor, myostatin, erythropoietin, and vascular endothelial growth factor. We then turn to a discussion of WADA’s characterization of ‘gene doping’, a discussion of the precedents, the risks for the health of the athletes and the challenges for detection. To conclude this chapter we engage with the philosophical discussion around the nature genetic enhancement: should it be understood as doping, or as an ‘innovation’? By doing so we lay the ground for our discussion of therapy and enhancement in sport and of the spirit of sport in chapter 6 in this volume.

Part II: “Enhancement, Therapy, and the Ethical Construction of Categories in Sport” 

Chapter 6: Enhancement, Doping and the Spirit of Sport

Given the central role of medical research in driving developments in pharmacology and genetics, and the subsequent application of therapies to the quest for the enhancement of athlete performance, the therapy/enhancement distinction has assumed a hugely significant role in bioethical scholarship over the last twenty years.  It has also played a significant role in the scholarship of doping in athletics, both of a genetic and non-genetic kind.  In this chapter, we critically present some of these debates in the contexts of the emerging field of sports medicine ethics, in order to shed light on the ethics of genetic engineering. We conclude that simply articulating an account of the goals of medicine from which we may deduce some easy priority of one set of interventions (therapeutic) over another (enhancements) is problematic, and argue that a case by case analysis is the best to be hoped for.  We turn then to a review of the salient points in the many debates over the therapy/enhancement distinction in order to shed further light on doping in sports.

Chapter 7: A case study in ‘Gene Enhancement’: Gene Transfer to raise the tolerance to pain: a legitimate mode of enhancement, or illegitimate doping?

In this chapter, we explore the question of whether it is ethically justifiable for individuals to seek an experimental gene transfer treatment in order to raise the threshold of their tolerance to pain. We consider here two plausible scenarios: in the first scenario the individual is a patient; in the second a non-patient athlete. We employ a comparative strategy to highlight the similarities and dissimilarities between the ethical frameworks used to evaluate the two scenarios. We argue that the context of gene-transfer matters for the evaluation of the ethical permissibility of the experimental practice: while in an everyday life scenario, we do not accord to pain an inherently valuable role, it does play a meaningful and constitutive role in endurance athletic competition, along with a range of other factors. We argue that genetically increasing the capacity for pain-tolerance, or even subtracting pain altogether from the sports experience, we would omit a fundamental part of the meaning of endurance sports.

Chapter 8: On the Eligibility of Female Athletes with Hyperandrogenism to Compete: Athleticism, Medicalisation and Testosterone

In this chapter, we discuss two recent important cases in elite sport in which the female body has been constructed as ‘other’ or ‘abnormal’, namely the body of South-African middle-distance runner Caster Semenya, and of Indian sprinter Dutee Chand. We first present Semenya’s case, which triggered the drafting of the 2011 IAAF regulations on eligibility of female athletes with hyperandrogenism to compete in the female category. We then critically analyse the IAAF regulations both from a scientific and from an ethical point of view, before discussing Dutee Chand’s case and her appeal to the Court of Arbitration for Sport. In the second part of this chapter we comment on CAS landmark decision (July 2015) to suspend the regulations for 2 years pending further evidence from IAAF, and the more recent developments (July 2017). We conclude that even if additional evidence were put forward to demonstrate a causal association between increased testosterone and performance, that would not constitute an unfair advantage and ground for reinstatement of the Regulations.

Chapter 9: Congenital and Acquired Disabilities: What counts as Unfair Advantage in the Paralympics?

In this chapter we continue the discussion of eligibility and what counts as an unfair advantage in the context of Paralympic athletics. We first discuss how the Paralympics Olympic Committee classifies impairment and constructs different categories for competition. We then set out to distinguish congenitally impaired athletes from those who have acquired their impairments through a variety of life circumstances.  We discuss the practical and ethical challenges of classification of Paralympic athletes, but also compare and contrast the cases of Oscar Pistorius and Markus Rehm as two exemplary contemporary cases of congenital and acquired disabilities respectively.  We argue that while both have arrived at their impairments through different routes, each sport (running and jumping) has demands that compensatory or assistive technology may support or undermine.  While this can be unproblematic in conceptual and ethical terms within classes of Paralympic sport, it can be problematic in sprinting and in long jump, especially, where the take of phase may be radically enhanced by technological assistance.  To conclude, we discuss the role and value of technology in relation to the future of sport.

Chapter 10: The re-inscription of the concept of biological race through sport in society

Recent discussions of the genetic basis of sports performance have exacerbated racial discourse, although many of the racial assumptions remains problematically covert hidden in the context of sport. Our aim in this chapter, then, is to apply the conceptual tools of philosophy and bioethics to bear on racial discourses in sport. We explain how the use of the concept of ‘human race’ is not helpful either at ontological or at epistemological levels in genomics research, including in sports genomics. We then proceed to spell out the ethical implications of the continued use of the concept of race in sport. We conclude that the concept of race ought to be dropped altogether from genetic research, including in the context of sports and sports genetic discussions.

Epilogue

The book can be pre-ordered here:

https://www.routledge.com/Bioethics-Genetics-and-Sport/Camporesi-McNamee/p/book/9781138892248