Dutee can run! – Intersex Human Rights Australia

Payoshni Mitra, Dutee Chand and Katrina Karkazis in Lausanne, Switzerland

Payoshni Mitra, Dutee Chand and Katrina Karkazis, in Lausanne. Thanks, Katrina, for permission to use this photo

Big congratulations to Dutee Chand, and to Payoshni Mitra and Katrina Karkazis, for winning a case against the IAAF before the Court of Arbitration for Sport, Lausanne.

Just over a year ago, Dutee Chand was excluded from competing in the Commonwealth Games because her natural testosterone levels were deemed to be too high. The case was contested vigorously by both Dutee and the IAAF, so the decision is a significant victory. It highlights how the IAAF was unable to provide firm evidence that natural testosterone levels are associated with a competitive advantages in women’s sport. The Court’s press release reads:

The CAS Panel in charge of the procedure (The Hon. Justice Annabelle Claire Bennett AO, Australia (President), Prof. Richard H. McLaren, Canada, and Dr Hans Nater, Switzerland) has suspended the “IAAF Regulation Governing Eligibility of Females with Hyperandrogenism to Compete in Women’s Competition” (the “Hyperandrogenism Regulations”) for a maximum period of two years in order to give the IAAF the opportunity to provide the CAS with scientific evidence about the quantitative relationship between enhanced testosterone levels and improved athletic performance in hyperandrogenic athletes. In the absence of such evidence, the CAS Panel was unable to conclude that hyperandrogenic female athletes may benefit from such a significant performance advantage that it is necessary to exclude them from competing in the female category. While the Hyperandrogenism Regulations are suspended, Ms Dutee Chand is permitted to compete in both national and international level athletics events. Should the IAAF not file any scientific evidence within the two-year period granted by the CAS Panel, the Hyperandrogenism Regulations will be declared void.”

Dutee isn’t alone. Her case, like media coverage of Caster Semenya, Maria José Martínez-Patiño, Santhi Soundarajan, Erika Schinegger, and the Press sisters before her, highlights how subjective constructs of femininity have been used to exclude women for their natural characteristics.

Four women athletes with intersex traits were excluded from the 2012 London Olympics, but underwent surgical procedures including sterilisation and clitoris reduction in order to be permitted to compete. The Court argues that such procedures were consented to, but this clearly is inadequate. Sport is central to the lives and self esteem of athletes with the rare qualities needed for elite competition, and continued access to competition was predicated on invasive medical intervention.

The Athletics Federation of India initially described its concern about the Dutee Chand case as one of “embarrassment to the fair name of sports in India“. Dutee’s privacy was not respected in the release of information to the media; Livemint reports:

My first thought was that I had been banned because I failed a dope test,” Chand says. “But I have never doped.” Confused and upset, Chand left for her home in Odisha. It was only there that she learnt, through news channels, that she had failed a “gender test”…

“What I have is natural,” she says. “I have not doped. I don’t deserve the ban. This should never happen to another girl again.”

Dutee’s supporters argued in Court that most athletes are genetic outliers in some form or another, and tested testosterone levels in both women and men in sport overlap to some degree.

In Australia, such discrimination is technically lawful, due to a sports exclusion in the Sex Discrimination Act, as amended in 2013, despite the absence of any clear scientific basis for such exclusion. The sports exemption also applies to trans people; it needs to end.

Some policy work is currently under way in Australia, aimed at promoting the inclusion of both intersex and trans people. This work must recognise that the issues affecting athletes with intersex variations can be very different to those affecting trans people. While trans people go through a lengthy decision making process prior to disclosure and transition, this is not afforded to people with intersex traits who may find that their lifelong legal sex and identity are questioned on the basis of medical tests. The mental health consequences are profound.

Dutee’s exclusion was ironically reported overnight just before a conference in Glasgow on “LGBTI Human Rights in the Commonwealth” that Morgan spoke at. Dutee’s case was mentioned:

Elite athletes may be subjected to humiliation, clitorectomy and sterilisation. An Indian runner, Dutee Chand, found out yesterday in the media that she’s been dropped from the Indian squad for next week’s Commonwealth Games due to higher natural levels of testosterone

The scarcity of press reports available at the time apparently hindered take-up of the issue. The conference issued a statement referencing the exclusion of women perceived to be intersex, such as Caster Semenya, but it’s not clear that the organisers, nor the Commonwealth Games Pride House, issued any statement on the matter.

Congratulations and thanks to Dutee, for taking the risk of protesting IAAF policy. Thank you also to Katrina Karkazis, Payoshni Mitra and Santhi Soundarajan. You’re all heroes.

More information

The Court of Arbitration statement and judgement:

We recommend the following articles:

The San Francisco Chronicle, covering the story from Katrina’s perspective: Rachel Swan in San Francisco Chronicle (4 August 2015) Stanford bioethicist fights gender tests for female athletes

This story in the New York Times in October 2014, which includes an interview with Dutee Chand: Juliet Macur in the New York Times (6 October 2014) Fighting for the Body She Was Born With

LiveMint, an Indian news site, also talks to key parties: Rudraneil Sengupta and Dhamini Ratnam (24 November 2014) Why Dutee Chand can change sports