Tribunal Arbitral du Sport Court of Arbitration for Sport Arbitration CAS 2014/A/3759 Dutee Chand v. Athletics Federation of India (AFI) & International Association of Athletics Federations (IAAF), award of 24 July 2015 Panel: Judge Annabelle Bennett (Australia), President; Prof. Richard McLaren (Canada); Mr Hans Nater (Switzerland) Athletics Eligibility of female athletes with hyperandrogenism to compete in women’s competitions CAS jurisdiction Burden and Standard of proof Discrimination of the Hyperandrogenism Regulations on a prima facie basis Scientific basis for the Hyperandrogenism Regulations Invalidity of the Hyperandrogenism Regulations as a proportionate means of attaining a legitimate sportive objective Nature of the Hyperandrogenism Regulations 1. According to the IAAF Hyperandrogenism Regulations, a right of appeal before the CAS is only given in respect of an IAAF decision. However, the IAAF can agree to the determination of the validity of the Hyperandrogenism Regulations by the CAS despite the fact that the athlete’s right of appeal should have been exercised before a national level body. Furthermore, according to Article 178(2) of the Swiss Federal Code on International Private Law, if an objective appraisal of all the facts establishes a mutual intention to subscribe to arbitration by the CAS - such as an implicit acceptance of the athlete’s offer to submit the dispute to the ad hoc jurisdiction of the CAS - then the CAS has jurisdiction to determine the case for the purposes of Swiss law. 2. The burden of proving that the Hyperandrogenism Regulations are invalid is on the athlete. If the athlete establishes that the Hyperandrogenism Regulations are prima facie discriminatory by reference to a higher ranking rule or otherwise, on the balance of probabilities, the burden then shifts to the IAAF to establish that they are justifiable as reasonable and proportionate to justify the discrimination. The requisite standard to justify discrimination of a fundamental right, which includes the right to compete as recognized in the Hyperandrogenism Regulations, should be to a level higher than that of the balance of probabilities. 3. It is prima facie discriminatory to require female athletes to undergo testing for levels of endogenous testosterone when male athletes do not. In addition, the Hyperandrogenism Regulations place restrictions on the eligibility of certain female athletes to compete on the basis of a natural physical characteristic (namely the amount of testosterone that their bodies produce naturally) and are therefore prima facie discriminatory on that basis too. The IOC Charter, the IAAF Constitution and the laws of Monaco all provide that there shall not be discrimination and that these provisions are higher-ranking rules that prevail. Accordingly, unless the Hyperandrogenism CAS 2014/A/3759 2 Dutee Chand v. AFI & IAAF, award of 24 July 2015 Regulations are necessary, reasonable and proportionate, they will be invalid as inconsistent with those regulations. 4. There is a significant difference in the testosterone levels of normal populations of males and females. Absent any evidence established on the balance of probabilities by the athlete that testosterone is not a material causative factor in athletic ability or sports performance or that exogenous testosterone has a different effect on athletic performance than endogenous testosterone, such a difference in average testosterone levels is a marker that can be relied on for the purposes of differentiating male and female populations. 5. The validity of the assumption according to which Hyperandrogenism Regulations are a proportionate justification for discriminating between females must be established on the balance of probabilities. The assumption is that an endogenous testosterone level within the male range + virilisation (indicating sensitivity to the high level of testosterone) = a degree of competitive advantage over non-hyperandrogenic females of commensurate significance to the competitive advantage that male athletes enjoy over female athletes. It has been accepted that testosterone is the best indicator of performance difference between male and female athletes. However, the evidence does not equal the level of testosterone in females with a percentage increase in competitive advantage. In the absence of such evidence, one cannot conclude that hyperandrogenic female athletes may enjoy such a significant performance advantage that it is necessary to exclude them from competing in the female category. 6. The Hyperandrogenism Regulations are an eligibility rule establishing objective condition that regulate the ability of individual athletes to participate in particular categories of athletics competition and not a form of doping control purport to modify, supplement or expand the WADA Prohibited List. I. PARTIES 1. Dutee Chand (the “Athlete”) is a 19 year-old female athlete of Indian nationality. During her career to date she has won a number of national junior athletics events in India. In addition, she won gold medals in the women’s 200 metres sprint and the women’s 4 x 400 metre sprint relay at the Asian Junior Track and Field Championships in Taipei in May 2014. 2. The Athletics Federation of India (the “AFI”) is the national governing body for the sport of athletics in India. 3. The International Association of Athletics Federations (the “IAAF”) is the international governing body of the sport of athletics, recognised as such by the International Olympic CAS 2014/A/3759 3 Dutee Chand v. AFI & IAAF, award of 24 July 2015 Committee. It has its seat and headquarters in Monaco. The IAAF recognises the AFI as its member federation for India. II. OVERVIEW OF THE CASE 4. This case concerns a challenge to the validity of the IAAF Regulations Governing Eligibility of Females with Hyperandrogenism to Compete in Women’s Competition (the “Hyperandrogenism Regulations”). The Hyperandrogenism Regulations place restrictions on the eligibility of female athletes with high levels of naturally occurring testosterone to participate in competitive athletics. In particular, the Athlete challenges the Hyperandrogenism Regulations on the basis that: (a) they discriminate unlawfully against female athletes and against athletes who possess a particular natural physical characteristic; (b) they are based on flawed factual assumptions about the relationship between testosterone and athletic performance; (c) they are disproportionate to any legitimate objective; and (d) they are an unauthorised form of doping control. The IAAF rejects each of those arguments. 5. The case raises complex legal, scientific, factual and ethical issues. The parties’ submissions draw upon a diverse range of expert scientific evidence, factual accounts of the evolution of the Hyperandrogenism Regulations and the experiences of female athletes who were subjected to their “gender testing” and “sex verification” predecessors, and philosophical arguments about the meaning of fairness in sport. The length of this Award is a reflection of the complexity of those issues, and the exceptional care and detail in which they were presented to the Panel by the parties’ representatives. III. FACTUAL BACKGROUND 6. Below is a summary of the relevant facts and allegations based on the parties’ written submissions, pleadings and evidence adduced at the CAS hearing on 23 – 26 March 2015. While the Panel has considered all the facts, allegations, legal arguments and evidence submitted by the parties in the present proceedings, it refers in its Award only to the submissions and evidence it considers necessary to explain its reasoning. A. Background Facts 7. The Athlete was born in Odisha, India on 3 February 1996. She began competing in junior- level athletics competitions in 2007. 8. Since March 2012, the Athlete has been a resident athlete at the National Institute of Sports (“NIS”) in Patiala, India. The NIS is a training facility for elite Indian athletes operated by the Sports Authority of India (“SAI”). The SAI is a public body that was established in 1982 by the Government of India’s Ministry of Youth Affairs and Sports (the “Ministry”). The SAI performs a range of functions on behalf of the Ministry relating to the governance and promotion of sport in India and the training of elite athletes. It is not affiliated to the IAAF and is not subject to the IAAF’s regulatory jurisdiction. CAS 2014/A/3759 4 Dutee Chand v. AFI & IAAF, award of 24 July 2015 9. In 2013, the Ministry promulgated a “Standard Operative Procedure to identify circumstances (female Hyperandrogenism) in which a particular sports person will not be eligible to participate in competitions in the female category” (the “Standard Operative Procedure”). The Standard Operative Procedure created rules and procedures governing the investigation, diagnosis and eligibility to compete of hyperandrogenic female athletes in India. The document is binding on the SAI. 10. It is common ground that in late June 2014, the Director of the AFI, Mr M.L. Dogra, contacted the Athlete and asked her to meet him in Delhi on the way to a SAI training centre in Bangalore. On 26 June 2014, Mr Dogra met the Athlete in Delhi. Aspects of the events that followed are a matter of dispute between the parties. 11. According to the Athlete, Mr Dogra asked her to undergo a “routine doping test”. The following day, on 27 June 2014, the Athlete met the Chairperson of the AFI Medical Commission, Dr Arun Mendiratta, in Delhi. The Athlete claims Dr Mendiratta told her that