Pol olicing t g the he Gen ende der Di Divide de Where do we - - PowerPoint PPT Presentation

Pol

• licing 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

• ry of
• f Ignor

gnorance ance"

1960s 60s

"Nude ude Parades ades"

• Visual and manual

genital inspections

• Some women withdrew

from sport

1970s - 1990s 1990s

Chromosome tests

• 46XY athletes deemed

male

• Prevent men

masquerading as women

• Patino 1985
• Abolished by IAAF

2000 - 2011

2011

Ad-hoc Gender Verification

• "Suspicion" on gender

triggers medical testing

• Soundarajan 2006
• Semenya 2009

2009 2009 IAAF W Wor

• rld C

d Champi hampion

• nshi

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

• r 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

• gen

enism Regul egulation

• ns
• 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

• opt
• ptions to
• com
• mply:
• 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

• n 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

• Regul

egulat ation i n in n pl plac ace e for

• r R

Rio

• 2016

2016

• Dutee qualifies and competes in 100m
• Caster wins gold in 800m

2018: 2018: IAAF’s D s DSD R Regul egulat ation

• ns
• 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

• ptions to
• com
• mply:
• Quit international competition
• Medical intervention
• Compete in the men’s category

The he CAS A Arbi bitrat ation

• n

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

• m her

here

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

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