In 2014, she underwent a routine doping test in which it was found that she had unusually high levels of testosterone. Testosterone doping was common in both male and female athletes in the 1980s as the substance contributes to performance, and was difficult to detect as it is produced naturally in the body. However, Dutee Chand had not doped on testosterone, but had a condition called ‘hyperandrogenism’, by which her body naturally produced higher levels of testosterone than is typical in women. The regulations of the International Association of Athletic Federations (IAAF), the world governing body of athletics, prescribed that athletes with testosterone levels above 10nmol/L could not compete in women’s events, and, bound by the regulations, the Athletics Federation of India (AFI) suspended Dutee Chand.
Dutee Chand wrote an impassioned letter, pleading to be allowed to participate as it was no fault of hers that her body produced high testosterone levels, and was no different from other advantages enjoyed by athletes such as height or privileged background. She was born and brought up a woman, identified as a woman, and ought to be allowed to compete with other women. In essence, she pleaded that the Hyperandrogenism Regulations operated as a ‘gender test’ under which she was not considered female enough to compete. Not being allowed to do so would cause her to be shunned in her village. Ridicule and discrimination is commonly faced by female athletes whose femininity comes into question, such as Caster Semenya of South Africa or Santhi Soundarajan from Tamil Nadu, though in both of those cases, the athletes reportedly failed ‘gender tests’. Dutee Chand was offered medical intervention, but she said that did not want to undergo such procedures, which would cause health risks, despite pressure put on her by her sponsor.
The case went up to the Court of Arbitration for Sport (CAS). Before it, the IAAF denied that their Hyperandrogenism Regulations were gender tests, and said that while it recognised that sex in humans is not binary but a continuum, it was necessary to devise a dividing line between male and female categories for sports competitions to prevent unfairness to female athletes who were, on average, less powerful than their male counterparts. However, it was correctly pointed out that the tests only applied to female athletes, and male athletes with unusually high levels of testosterone were not barred from participating with other male athletes.
Dutee Chand also challenged the scientific basis of the Regulations, contending that it could not be shown that elevated levels of natural testosterone gave elite athletes a performance advantage or that medical science was presently capable of delineating distinct testosterone ranges for male and female athletes. Previous decisions of the CAS had ruled that the CAS could indeed reject a finding of doping if the test used was unscientific.
CAS ruled that while there was definitely a relationship between testosterone and athletic performance, and while Dutee Chand was unable to show that there was a difference in the effects of endogenous (produced in the body) testosterone and exogenous (introduced into the body by injection or some other method) testosterone, it was unclear to what degree hyperandrogenic female athletes enjoyed over other female athletes. Therefore, it could not be said that female athletes having levels of testosterone above 10nmol/L would enjoy a competitive advantage over other female athletes equivalent to a male athlete, rather than a marginal advantage equivalent to any other factor that contributed to athletic performance like height, etc.
On that basis, CAS has suspended the application of the Hyperandrogenism Regulations for two years during which time the IAAF may produce concrete evidence of the magnitude of the competitive advantage enjoyed by hyperandrogenic female athletes over other females. In the meantime, Dutee Chand qualified for the Rio Olympics and has also won gold medals at the recent National Open Athletics Championships, but if the IAAF is able to establish that her level of testosterone gives female athletes an advantage equivalent to that of a male athlete, the bar on her competing could well be restored thereafter.
This decision of CAS is heartening for female athletes who may face humiliation for their failure to appear “female enough” and will force sports governing bodies to account for outliers like Dutee Chand in categorising athletes as male or female. After all, elite level sport is filled with athletes who display not only extraordinary hard work, but also extraordinary genetics, like Michael Phelps or Tiger Woods.
Another point bears mentioning. Dutee Chand is the only Indian athlete to have been successful before CAS. Contesting a case before CAS is highly expensive, costing tens of thousands of Swiss francs in arbitrators’ fees and expenses alone (though an athlete may apply for legal aid which covers the court fees and includes free legal counsel) and winning a case often hinges on producing superior evidence by calling in medical experts and sports scientists, and may require engaging a foreign lawyer. A foreign lawyer may be required for his training in Swiss law, because CAS, while an international tribunal, is based in Switzerland, and relies on Swiss law to supplement the legal framework created by the rules and regulations of the relevant sports governing body, or may be required because of a lack of expertise in the field of sports law in India. In this case, Dutee Chand produced three expert witnesses and engaged a Canadian law firm. Without support, Dutee Chand could not have won this case. While Indian sports authorities are notorious for not adequately supporting their athletes, in this case, the Sports Authority of India (SAI), in whose facility Dutee Chand trained, financially supported her and urged the AFI to support her appeal to CAS if they felt compelled to follow the IAAF’s regulations.
References: Dutee Chand v Athletics Federation of India (AFI) & The International Association of Athletics Federations (IAAF) CAS 2014/A/3759, http://www.tas-cas.org/fileadmin/user_upload/award_internet.pdf
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