Dutee Chand Presentation

Richard H. McLaren

Faculty of Law, Western University Member, Court of Arbitration for Sport (CAS) Counsel, McKenzie Lake Lawyers LLP President, McLaren Global Sport Solution Inc. Arbitrator at 5 Olympic Games Today’s Presentation Dutee Chand’s CAS case Background

• Born: , ; February 3, 1996 • Competed Asian Junior Track & Field Championships in Taipai May 2014  Won 3 golds Today’s Presentation

Hyperandrogenism

History of Gender Testing

IAAF Hyperandrogenism Regulations

Dutee Chand’s Background

Chand’s Issues at Arbitration

Future of Hyperandrogenism in Sport Hyperandrogenism

Endocrine disorder

DSD: Differences (or Disorders) in Sex Development

Virulization (Track & Field) World Athletics (Track & Field) Policing the Dividing Line

Late 1960s: Ewa Klobukowska, “Barr” body analysis History of Gender Testing

1985: Androgen Insensitivity

1993: Y Chromosome

1996: Y Chromosome + Phys. Examinations

2006: IAAF Policy on Gender Verification The Catalyst to Change:

• Rapid rise in sport: 2008 - 2009 • Media fiasco (gender & medical files) • 2011 IAAF policy changes – Confidentiality – Privacy – Reputation 2011 Revised IAAF Regulation

 1.3: No female with HA shall be permitted to compete in the female category…

 6.6: Places HA athlete under burden of proving that her body is resistant to androgens & therefore, her elevated T levels do not confer any competitive advantage

• Current Regulations: Testosterone Levels Praise & Criticism Of Recent IAAF Regulations

Praise Criticism • Clear notice of expectations • Unfair • Well explained exemption • Unscientific process • Models Western ideals of • Confidentiality “femininity” • Appeal rights • High T levels ≠ success in female sports Chand’s Ineligibility Chand’s Ineligibility Background to CAS Arbitration

• 2013: Indian Government’s Ministry of Youth Affairs and Sports promulgated a Standard Operative Procedure

• June 2014: Director of AFI meets with Chand, asks her to undergo a “routine doping test”

• July 2014: Chand notified by SAI doctor that she is ineligible to compete for 2 upcoming international events

• August 2014: Chand is provisionally suspended from competing athletically by AFI

• September 2014: Chand files an appeal to CAS Background to CAS Arbitration Chand’s Issues With Regulation

1) Discriminatory

2) Insufficient Scientific Evidence

3) Disproportionate to Objective Issue 1: Discrimination

Chand submits that HA Regulations discriminate against two innate, immutable traits:

(A) Sex (B) A Natural Physical Characteristic Allegations of Discrimination

(A) Sex: no testosterone limit for male athletes

(B) Natural Characteristic: no prohibitions on other natural genetic advantages IAAF’s Justification for Discrimination

Differential treatment is necessary to protect fair competition CAS Panel’s Conclusion on Discrimination

• HA Regulations are discriminatory • Onus shifts to IAAF prove that • HA Regulations are necessary, reasonable & proportionate Issue 2: Insufficient Scientific Support • Contentious area – experts on either side 2 Sub-Issues: (a) Does T impact sports performance? (b) Does the body respond differently to endogenous & exogenous T? Issue 2(a): T Impacts Sports Performance

• Relationship between T & LBM is well established

• LBM contributes to improved sports performance

• CAS Panel upheld IAAF’s choice of using T level as a marker Issue 2(b): The Difference Between Endogenous & Exogenous Testosterone (2) Does the body respond differently to endogenous and exogenous T? • Chand bore the onus: her position was that endogenous & exogenous T ≠ same effects on muscles growth • Expert evidence lacking on both sides • Much of Chand’s expert testimony was problematic and discounted by IAAF The IAAF’s Position T molecule = same for endogenous & exogenous • Body cannot distinguish origin of testosterone

Scientific vacuum

Virilisation = best analysis of effects of T regardless of source The Panel’s Conclusion on Issue 2: Sufficient Scientific Support • Chand did not establish that IAAF was incorrect to rely on T as marker for HA Regulations

• Chand’s arguments were sociological explanations and deductions given by experts

• Panel was satisfied with science for using T as a marker for Regulations Issue 3: Whether the HA Regulations are Justified as a Proportionate Means of Attaining a Legitimate Sporting Objective

• Panel accepted that HA Regulations are discriminatory

• IAAF bore burden of proving that Regulations are justified The IAAF’s Justification for Discrimination 1) Sport requires some categorisation to ensure fair competition 2) T is best criterion to ensure level playing field The Panel’s Framing of the Issue of Proportionality

Is it reasonable and proportionate to exclude some female athletes from the female category to ensure fair competition? Concept of Fair Competition in Sport • No athlete should be prevented from competing in any category because of genetic makeup

• Such a rule would contradict the fundamental principle of Olympism

• Such a rule would only be valid if it was a proportionate means of achieving fair competition The Underlying Assumption of the HA Regulations • HA females have a performance advantage similar to males

• Therefore, HA females have a significant performance advantage over their non-HA competitors

• This advantage outranks the influence of any other genetic or biological factor A Significant Competitive Advantage

Remaining question: Do women with T levels of 10 nmol/L or more have a competitive advantage so that they’re precluded from competing as females?

Outcome: Currently no available evidence - as to the degree of advantage of HA athletes with levels of endogenous T above 10 nmol/L. The Panel’s Conclusion on Proportionality • Lack of scientific data

• Endogenous T levels may increase performance, but the degree of advantage is unknown

• Other variables could affect performance advantage

• IAAF could not prove that high endogenous T = significant competitive advantage

• Panel: HA Regulations do not fulfill their objective The Panel’s Remedy

• HA Regulations suspended for 2 years

• IAAF can submit evidence concerning the degree of competitive advantage of HA females to CAS

• Athlete will be able to respond to evidence

• If no evidence brought forward in 2 years, Regulations will be deemed void Post-CAS Suspension of HA Regulations • Dutee Chand: – Rewrote the 100m meet record (11.73s) at the Indian National Games in February 2015

– Member of Indian’s women 4x100m relay quartet that finished 4th in June 2015 at the Asian Athletics Championship

– Successfully defended 200m title (24.03s) in August 2015 at the Federation Cup National Athletics Junior Championship Future of HA in Sport

Worley v. Ontario Cycling Association . Canadian transgender cyclist . Alleging discrimination of sex contrary to Human Rights Code . Human Rights Tribunal has jurisdiction to hear case

• More litigation at the domestic level can be expected