Eligibility of female athletes with differences of sex development to compete in international athletics

Abstract

After given due consideration to the need of the original hyperandrogenic regulations and the constant pressure from society upon the International Association of Athletics Federation’s (hereafter IAAF) to take action against the presumed unfair competitive edge which such an athlete posed, it cannot be said that a female athlete’s natural levels of testosterone should be considered prejudicial in cases where such an excess is naturally produced within the athlete’s body. Any regulation that impedes upon the rights and freedoms of an athlete must be drafted in a manner that bears the highest degree of credibility and evidence, including the support of several cross-examinations of the evidential value before the promulgation thereof. The IAAF’s hyperandrogenic regulations fail to meet this extrinsic threshold and instead announces it in the absence of trailed and proven factual scientific evidence. The CAS board identified a lack of legality due to insufficient scientific evidence presented by the IAAF in order to justify the need of such regulations. This study found that Hyperandrogenic athletes faced numerous accounts of prejudice as a result of the regulations and the enforcement thereof by the IAAF. After the CAS panel established that several of the Hyperandrogenic athlete’s rights were infringed upon by the regulations, in an attempt to evade legal consequences, the IAAF withdrew the hyperandrogenic regulations leading to the abolishment of all legal proceedings linked thereto. The IAAF then retaliated months later with the publication of their DSD regulations. After facing an immense amount of critique by professionals globally, a communal consensus was reached that the DSD regulation was even weaker than its pre-successor.

This study firstly investigates the scientific evidence, both in manner and in the hypothesis, presented by the IAAF in support of their DSD regulations. Secondly, it will criticise the legitimacy of the Bermon test and its publication in the British Journal of Sport Medicine (hereinafter the BJSM). Comparisons are made between hyperandrogenism and collateral cases involving similar medical conditions. Attention has also been drawn to the legal recourse currently available to affected athletes. Hereinafter, opinions and suggestions will be made as to an appropriate, and a law-abiding way as to how hyperandrogenism should be regulated.