Policing the Gender DivideWhere do we go from here?

Hon. Hugh Fraser

Jim Bunting

January 30, 2020

"A History of Ignorance"

1960s

"Nude Parades"

- Visual and manualgenital inspections

- Some women withdrewfrom sport

1970s - 1990s

Chromosome tests

- 46XY athletes deemedmale

- Prevent men masquerading as women

- Patino 1985- Abolished by IAAF

2000 - 2011

Ad-hoc Gender Verification

- "Suspicion" on gendertriggers medical testing

- Soundarajan 2006- Semenya 2009

2009 IAAF World Championships, Berlin

"It is clear that [Ms Semenya] is a woman but maybe not 100 per cent.“

— IAAF Secretary, Pierre Weiss

IAAF Regulations

Stated Rationale & Screening under the Regulation

“It is also known from experience that there are rare cases of young females competing in Athletics today who are affected by hyperandrogenism which, if the condition remains undiagnosed or neglected, can pose a risk to health. Despite the rarity of such cases, their emergence from time to time at the highest level of women’s competition in Athletics has proved to be controversial since the individuals concerned often display masculine traits and have an uncommon athletic capacity in relation to their fellow female competitors.”

2011: IAFF’s Hyperandrogenism Regulations

• Applied to all women in Track & Field

• IOC substantively similar rule apply to all women in all sports

• Focus on T, not gender• 10 nmol/L limit• Expert panel determination of

"androgenizing effect”

Two options to comply:• Quit sport• Medical intervention to reduce and

maintain T below 10 nmol/L

Dutee Chand

The Decision: Regulation is Suspended• Reg is Discriminatory as between men and women

and based on a natural genetic trait• IAAF failed to establish it is necessary, reasonable

and proportionate to establish a level playing field • Natural testosterone confers an advantage, but

insufficient evidence of degree of advantage or that any advantage was unfair

• CAS Suspends Regulations for 2 years

No Regulation in place for Rio 2016• Dutee qualifies and competes in 100m• Caster wins gold in 800m

2018: IAAF’s DSD Regulations• Narrowed: Applies only to some women

in some events (between 400m and mile) and only in international competitions

• 5 nmol/L T limit

• Same expert panel determination of "androgenizing effect”

• Focus turns back to gender (46XY)

Three options to comply:• Quit international competition• Medical intervention• Compete in the men’s category

The CAS ArbitrationSemenya Team• Canadian and South African counsel• 7 fact witnesses• 15 experts

• Genetics, endocrinology, gynecology, psychology, statistics, policy, law

IAAF Team • British counsel• 1 fact witness (IAAF Medical Director)• 7 experts

• Endocrinology, gynecology, sport science, statistics, law, trans athlete

CAS Proceeding • 3 arbitrators (Canadian, Australian, Swiss)• 9 month proceeding ending in 5 day hearing• Expert witness panelling (i.e. hot tubbing)

The CAS Award

• Decision announced publicly May 1, 2019

• CAS Panel splits 2/1• Rare for CAS arbitration• Written dissents not permitted under Rules

• Majority of Panel finds DSD Regulations discriminatory, but justified as necessary, reasonable, and proportionate

• 165-page arbitral award (redacted) released publicly in June 2019

Where do we go from here

• What does this mean for Athletics?

• What does this mean for other sports (Olympics)?

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