Pol olicing t g the he Gen ende der Di Divide de Where do we go from here? Hon. Hugh Fraser Jim Bunting January 30, 2020
"A Hist stor ory of of Ignor gnorance ance" 1960s 60s 1970s - 1990s 1990s 2000 - 2011 2011 "Nude ude Parades ades" Chromosome tests Ad-hoc Gender Verification - 46XY athletes deemed - "Suspicion" on gender - Visual and manual male triggers medical testing genital inspections - Prevent men - Soundarajan 2006 - Some women withdrew masquerading as women from sport - Semenya 2009 - Patino 1985 - Abolished by IAAF
2009 2009 IAAF W Wor orld C d Champi hampion onshi ships, s, B Ber erlin "It is clear that [Ms Sem enya] is a w om an but m aybe not 100 per cent.“ — IAAF Secretary, Pierre Weiss
IAAF R IAAF Regula lati tions
St Stated ed R Rationa nale e & & Sc Scre reen ening ng u unde nder t the Regu gulat ation “ It is also know n from experience that there are rare cases of young fem ales com peting in Athletics today w ho are affected by hyperandrogenism w hich, if the condition rem ains undiagnosed or neglected, can pose a risk to health. Despite the rarity of such cases, their em ergence from tim e to tim e at the highest level of w om en’s com petition in Athletics has proved to be controversial since the individuals concerned often display m asculine traits and have an uncom m on athletic capacity in relation to their fellow fem ale com petitors.”
2011 011: IAF AFF’s Hyper peran androg ogen enism Regul egulation ons • Applied to all ll women in Track & Field • IOC substantively similar rule apply to all ll women in all ll sports • Focus on T, not gender • 10 nmol/L limit • Expert panel determination of "androgenizing effect” Two o opt options to o com omply: • Quit sport • Medical intervention to reduce and maintain T below 10 nmol/L
Dut utee ee Chand hand
The he Dec ecisi sion: n: Regul egulat ation on i is Sus uspended pended • 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 o Regul egulat ation i n in n pl plac ace e for or R Rio o 2016 2016 • Dutee qualifies and competes in 100m • Caster wins gold in 800m
2018: 2018: IAAF’s D s DSD R Regul egulat ation ons • 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) Thr hree opt options to o com omply: • Quit international competition • Medical intervention • Compete in the men’s category
The he CAS A Arbi bitrat ation on Sem emenya T Team eam • Canadian and South African counsel • 7 fact witnesses • 15 experts Genetics, endocrinology, gynecology, • psychology, statistics, policy, law IA IAAF T Team eam • British counsel • 1 fact witness (IAAF Medical Director) • 7 experts Endocrinology, gynecology, • sport science, statistics, law, trans athlete CAS P Proceedi eeding ng • 3 arbitrators (Canadian, Australian, Swiss) • 9 month proceeding ending in 5 day hearing • Expert witness panelling (i.e. hot tubbing)
Th The CAS Aw AS 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
Wher here do e do we e go go from om her here • What does this mean for Athletics? • What does this mean for other sports (Olympics)?
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