CAS 2014_A_3759 Dutee Chand vs AFI & IAAF

CAS 2014/A/3759 Dutee Chand vs Athletics Federation of India (AFI) & The International Association of Athletics Federations (IAAF)

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 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 rejected each of those arguments.

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.

In September 2014 the Athlete appealed the Decision of the Athletics Federation of India (AFI) to declare the Athlete ineligible to compete in Women's Competition. The Athlete requested the Panel to set aside the Appealed Decision and to declare the Athlete eligible to compete.

The following issues arise for determination by the CAS Panel in this appeal:

• (a) Do the Hyperandrogenism Regulations discriminate impermissibly against certain female athletes on the basis of:
  • (i) a natural physical characteristic; and/or
  • (ii) sex?
• (b) Should the Hyperandrogenism Regulations be declared invalid on the basis that there is insufficient scientific evidence:
  • (i) that endogenous testosterone improves athletic performance in female athletes; and/or
  • (ii) that 10 nmoI/L is the scientifically correct threshold at which female athletes are in the "male range" of endogenous testosterone and therefore enjoy the benefits of male levels of androgens?
• (c) Are the Hyperandrogenism Regulations disproportionate in the context of:
  • (i) the fact they discriminate on the basis of a natural physical characteristic and/or sex; and/or
  • (ii) the harm they cause to female athletes?
• (d) Are the Hyperandrogenism Regulations invalid because they are a form of unauthorised anti-doping sanction in violation of Articles 4.3.3, 10 and 23.2.2 of the World Anti-Doping Agency Code?

The Panel concludes that the IAAF has not discharged its onus of establishing that the Hyperandrogenism Regulations are necessary and proportionate to pursue the legitimate objective of organising competitive female athletics to ensure fairness in athletic competition.

Specifically, the IAAF has not provided sufficient scientific evidence about the quantitative relationship between enhanced testosterone levels and improved athletic performance in hyperandrogenic athletes.

In the absence of such evidence, the Panel is unable to 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.

Therefore the Court of Arbitration for Sport decides on 24 July 2015 that:

1. The appeal filed by Ms Dutee Chand on 26 September 2014 against the Athletics Federation of India's letter of 29 August 2014 declaring Ms Chand ineligible to compete under the IAAF Regulation Governing Eligibility of Females with Hyperandrogenism to Compete in Women's Competition (the "Hyperandrogenism Regulations") is partially upheld.
2. The Hyperandrogenism Regulations are suspended for a period of no longer than two years from the date of this Interim Award. In the interim, Ms Dutee Chand is permitted to compete in both national and international-level athletics events.
3. The International Association of Athletics Federations may, at any time within two years of the date of this Interim Award, submit further written evidence and expert reports to this Panel addressing the Panel's concerns concerning the Hyperandrogenism Regulations as set forth in this Interim Award and, in particular, the actual degree of athletic performance advantage sustained by hyperandrogenic female athletes as compared to non-hyperandrogenic female athletes by reason of their high levels of testosterone.
4. To the extent the International Association of Athletics Federations submits further written evidence and expert reports in accordance with paragraph 3 above, the Panel shall issue further procedural instructions to the parties, including the opportunity for Ms Chand to file written evidence and submissions in response to the submissions filed by the International Association of Athletics Federations, prior to determining whether the new evidence establishes the validity of the Hyperandrogenism Regulations. The Panel will then decide whether any further oral hearing shall take place and notify the parties accordingly.
5. In the event that no evidence is filed in accordance with paragraph 3 above, or in the event that the International Association of Athletics Federations confirms in writing to the CAS Court Office that it does not intend to file any such evidence, the Hyperandrogenism Regulations shall be declared void.
6. (...).
7. (...).
8. All other motions or prayers for relief are dismissed.