The IAAF has published new “Eligibility Regulations for Female Classification” (the “Regulations“), which can be found here. The Regulations set out a number of criteria that athletes with “differences of sex development” must meet in order to be eligible to compete in the female category of track events between 400m and a mile (the “Restricted Events“) in an international competition (or to set a world record in such an event). The Regulations define “differences of sex development” (“DSD“) as “a congenital condition that causes atypical development of their chromosomal, gonadal, and/or anatomic sex”.
The Regulations replace the previous Regulations Governing Eligibility of Females with Hyperandrogenism to Compete in Women’s Competition, which were challenged before the Court of Arbitration for Sport (“CAS“) by Indian 100m sprinter Dutee Chand in 2015 after she was prevented from attending the Glasgow 2014 Commonwealth Games on the basis of her increased testosterone levels. The CAS panel determined that the IAAF had not provided sufficient scientific evidence about the relationship between enhanced testosterone levels and improved athletic performance in hyperandrogenic athletes. In the absence of such evidence, the Panel was unable to conclude that such athletes enjoyed such a significant performance advantage that it was necessary to exclude them from competing in the female category, and ordered that the Hyperandrodgenism Regulations be suspended for two years, during which the IAAF could collate and submit further evidence in support. The CAS panel’s decision is available here.
The IAAF submitted further material to CAS on 27 September 2017, which included expert reports, legal submissions and a draft of the new Regulations. CAS held that the material submitted was sufficient to comply with the panel’s directive, but made no ruling on the sufficiency of the further evidence at that time. As the new Regulations replace the Hyperadrogenism Regulations, this terminates the CAS proceedings, and so no opinion on the sufficiency of the evidence will be forthcoming from CAS. However, the IAAF maintains that their latest evidence shows a performance advantage in female athletes with DSD over the Restricted Events. See the CAS media release here.
Under the new Regulations, which come into force on 1 November 2018, Relevant Athletes (i.e. those who, as a result of their DSD, produce significantly higher levels of testosterone than the average female) must:
(i) be recognised at law (for example under their birth certificate or passport) as female or intersex (or equivalent);
(ii) reduce their testosterone levels to below the specified level for a continuous period of six months before they can compete (e.g. through hormonal contraceptives); and
(iii) maintain their testosterone levels below such level for so long as they wish to remain eligible to compete (whether in or out of competition).
Relevant Athletes who do not meet the above conditions (or who fail or refuse to submit to testing in relation to them) remain eligible to compete: (i) in the female category (a) in international competitions in events other than the restricted events; or (b) in the restricted events outside of international competitions; (ii) in male or intersex classifications for all events including the restricted events.