Serious Questions: How will the IAAF’s new female eligibility rules stand up to legal challenge?

As Caster Semenya prepares to race at this weekend's inaugural Athletics World Cup the implementation of the IAAF's new DSD Rules loom in November. Here Sarah Hartley, a partner and head of the outdoor industry team at global law firm Bryan Cave Leighton Paisner, assesses the legal picture.

Serious Questions: How will the IAAF’s new female eligibility rules stand up to legal challenge?

While the world of sport focuses on the soccer World Cup until mid-July, South African runner Caster Semenya has been focused on a packed schedule of summer races including July’s inaugural Athletics World Cup.

Her seemingly unflappable focus this summer is impressive given the impending implementation of the International Association of Athletics Federation’s (IAAF) new female eligibility regulations for Athletes With Differences of Sex Development (‘DSD Rules’), which likely would preclude Semenya from competing after 1st November, 2018 if she does not undergo significant medical intervention. 

What are the DSD Rules?

Under the DSD Rules, androgen-sensitive hyperandrogenic women (women with naturally-occurring levels of testosterone outside the norm for females) will not be able to participate in international athletics competitions or vie for world records unless they submit to medical treatment that lowers their endogenous testosterone below five nanomoles per litre (nmol/L) for at least six months, and then maintain that unnaturally low testosterone level throughout their competitive career.

This is the last in a long series of efforts by the IAAF and other international sport organisations to regulate which women get to participate in sport. These rules have, over the years, been pronounced necessary to ensure a ‘level playing field’ for women.

Initially, the rules were intended to catch the posers – the men trying to pass as women to gain glory in the women’s field. Over time, as the medical science has progressed, the sports bodies have tried to develop more nuanced regulations to target women who, through no fault of their own (i.e., non-dopers), naturally have higher than normal levels of testosterone in their bodies.

Indian sprinter Dutee Chand (right) is another to appeal to CAS over governing body regulations' on female hyperandrogenism

Competitive advantage and scientific evidence

There is relative consensus that testosterone is relevant in athletic performance, and the prime distinguishing developmental factor between male and female athletes is testosterone. Does endogenous testosterone, however, provide a meaningful competitive advantage to women whose bodies produce and metabolise excessive testosterone as compared to women in the ‘normal’ range?

The IAAF’s DSD Rules assume the answer is an unqualified yes, but the history of challenges to its prior rules suggest the answer is not quite so clear. This is most evident from the decision of the Court of Arbitration for Sport (CAS) in the case of Indian sprinter Dutee Chand. In the case, the IAAF admitted that its 2011 iteration of rules targeting hyperandrogenic women in athletics discriminated based on sex, but could not provide medical evidence of a competitive advantage for such women that the CAS found sufficiently weighty to justify the discrimination.

Instead, CAS found that the medical evidence submitted by the IAAF was insufficient to prove that androgen-sensitive hyperandrogenic women have a meaningful competitive advantage over their peers. CAS gave the IAAF a chance to provide supplemental evidence to establish the magnitude of the alleged competitive advantage, which the IAAF appears to have availed itself of, but instead of waiting for CAS to rule on the sufficiency of the new evidence, the IAAF issued the DSD Rules.

The 2011 medical evidence submitted to CAS by the IAAF was insufficient to prove that androgen-sensitive hyperandrogenic women have a meaningful competitive advantage

Legal challenges ahead?

The new rules, however, suffer from many of the same deficiencies as the 2011 rules suspended by CAS, and are likely to be challenged on the same bases. The IAAF now regulates participation in races of different distances than addressed in its primary study, even though the study did not even evaluate impacts of endogenous testosterone at the longer distances and some competitions where the study showed some competitive advantage are not regulated.

The DSD Rules also halved the limit on endogenous testosterone that a woman can have, another material modification to the regulation that will likely be subject to challenge. There appears to be limited, if any, evidence that five nmol/L versus the ten nmol/L limit in the 2011 rules, is the appropriate ceiling for female competitors. There can be little doubt that any effort to discredit the propriety of the DSD Rules will focus on whether the medical and scientific evidence can show a sufficiently meaningful impact of endogenous testosterone on competitive advantage.

We are now one month into the six month window in which athletes must have been undergoing treatment to ensure eligibility come the 1st November, 2018 effective date of the DSD Rules. Despite what appears to be a relatively obvious set of challenges to their viability, we have only now seen a formal statement from Semenya and her federation that she will file a case in opposition to the rules with CAS.

Caster Semenya says she intends to challenge the DSD Rules she describes as “discriminatory, irrational and unjustifiable”

Though there has been no public confirmation that Semenya is in fact subject to the DSD Rules, she announced on 18th June, 2018 that she intends to challenge the rules as “discriminatory, irrational, unjustifiable” and a violation of universally-recognised human rights. Semenya’s complaint is not publically available, however, her legal team has announced that it will challenge the scientific basis for the rules.

With the summer track season in full swing and the November DSD Rules implementation deadline looming, we can expect two things.

First, we can expect Semenya’s challenge to the rules to either be fast-tracked by CAS or for a preliminary injunction against its implementation to go into effect.

Second (to the extent the DSD Rules are not suspended pending the resolution of Semenya’s complaint), if there are women with disorders of sexual development who would be subject to the DSD Rules competing on the international stage, we may see withdrawals from competition as athletes undergo treatment, or, if we are to presume the DSD Rules are well-founded in medical science, we may see a drop off in results for those athletes who have submitted to hormone therapies to comply with the rules.   

Sarah Hartley is a partner in the Denver, Colorado, office of global law firm Bryan Cave Leighton Paisner. She heads the firm’s Outdoor Industry Team and works with sports clients across a broad range of competitions. Sarah is also an adjunct professor of sports law at the University of Colorado Law School.