Editor's Note: Marjolaine is an attorney admitted to the Geneva bar (Switzerland) who specialises in sports and life sciences. She currently participates as a scientific collaborator at the University of Neuchâtel on a research project to produce the first article-by-article legal commentary of the 2015 World Anti-Doping Code.
Over the past days, we have been flooded by
media reports discussing the “Caster Semenya-case”, reports rapidly relayed in
social networks. Since the debate has a distinct legal component and since
almost every report appears to draw significantly from the legal background, I granted
myself permission – as compensation so to speak - to publish a somewhat more personal,
less legal, post than I usually would.
Let me make one thing clear from the outset
– I am still ‘agnostic’ about the question of how to solve the issues
surrounding the male versus female divide in sports. Each time I have been
asked to write or speak on the subject, I have tried to stick to describing the
legal situation and its implications. I do not have the miracle solution as to
how to handle this infinitely complex issue. And I am not sure anyone can claim
to hold that solution at this point. Like everyone, I am doing my research and
trying to be humble enough to stay within the realm of my competences. More...
Editor's note: Marjolaine Viret and Emily Wisnosky are both editors of the ASSER International Sports Law Blog specialized in anti-doping matters, they are also involved in the World Anti-Doping Commentary project funded by the Swiss National Science Fund.
Introduction
A remarkable aspect of the run-up to the 2016
Rio Olympic Games was the stream of negative media reports portraying
broad-scale public mistrust in sport, with the most prominent topic being the doping
scandals in athletics and questions surrounding the participation of Russia.
A different controversy, but one also
directed at the credibility of sports, has exposed a few female Olympians to
repeated, and at times rather intrusive, media scrutiny. In June 2016, it was reported
that Indian track-and-field athlete Dutee Chand had qualified for the Rio
Olympic Games by breaking the national record, thus to become the first Indian
athlete to run the 100m at the Olympics since 1980. The attention that Dutee
Chand’s qualification attracted within international media, however, was not
related only to her outstanding results. It came as part of a medical, ethical
and legal controversy that has existed for many years relating to ‘policing’
the male versus female divide in sports. Another athlete who has found herself
in the midst of this controversy is South African runner Semenya Caster, whose
participation in the Olympics has been the object of much
conjecture.
The divide between male and female athletes
forms the core of most sports’ competition rules, including athletics. The
justification for this basic divide has rarely been questioned as such, but has
been a matter for debate when it comes to handling atypical situations on both
sides of the ‘dividing line’ such as ‘transgender’ or ‘intersex’ athletes. A category of
athletes that has, especially, been viewed as a challenge to the divide is composed
of female athletes affected by ‘hyperandrogenism’, a health condition that
results in naturally elevated androgen levels, including testosterone levels.
On 24 July 2015, a CAS panel rendered a decision
involving Dutee Chand (“Dutee Chand” or “the Athlete”) that has fuelled the
ongoing debate about the policies regulating hyperandrogenism in sport. Much
has been reported in the media about the case: controversial issues include
whether the CAS was the appropriate forum to assess these questions; whether
the decision was appropriate, both on the merits and on the procedure; and what
the consequences of the CAS award would be, for the parties, for athletics and
for the sporting community at large.
Much like the current crisis surrounding
doping in sports, the public attention on women with (proven or suspected) hyperandrogenism
is driven by a concern that an athlete’s physiology – natural or artificially
induced could distort competition, destroying the ‘level playing field’
that supports the Olympic ideal. Both topics are also often brought back to the
goal of protecting an athlete’s health. Parallels are further found in the
strong reactions both topics evoke, and the steps taken by the regulating
authorities to convince the public that everything in their power is being done
to preserve a level playing field.
A less obvious but equally important point
of comparison can be found in the issues both topics raise concerning the legal
validity of decisions made by sports organizations, especially in a
science-related context. This blog focuses on those more ‘legal’ aspects,
through the prism of the decision of the CAS in the Dutee Chand matter and its
legal implications. After touching briefly on the
background of the case, we will comment on two aspects of the Chand award with
respect to challenges in regulating hyperandrogenism in sport within the
confines of the law: First from the viewpoint of a CAS panel called upon to
evaluate the validity of a set of regulations, and second from the viewpoint of
the sports organizations seeking to both adequately protect fairness in sport
and to provide a legally valid (and effective) regulatory solution.[1]
More...