

02 May 2019 Posted by

Prepare for a long read. Do it in instalments if it helps! I’ve written it as a list, I don’t know if that helps or hinders. But these are my thoughts, start to finish, on the DSD in sport issue, as pertains to Caster Semenya and others, and the CAS decision that ruled in favour of the IAAF’s regulations.

The decision was a disappointment to me, because of the scientific matters and in particular the scientific process that was followed in supporting those regulations. It is not a disappointment because of the concept of testosterone and its effects on performance. I remain sympathetic to the IAAF’s challenge in this regard, and while I think they have not applied a good scientific process to the creation of the policy, I want to be measured and say that on many elements of this issue, I think they have strong theoretical arguments.

But here is, top to bottom, a summary of what I think are the key issues here. If you want byte-sized, try someone else. This is a big meal, I hope you enjoy and digest it:


1. The evidence issue – a historical context to how we got here and a watershed moment

  1. In my reading of the situation, there is insufficient evidence to support the regulations. There is concept, theory, and biological rationale, but not evidence. And the regulations are, for all intents and purposes, an evidence-based document.  Their foundation is evidence, because the regulations in their current form evolved out of a mandate received from to return with evidence supporting them. 
  2. You’ll recall that the Chand decision mandated the IAAF to go away and come back with evidence of the MAGNITUDE of the advantage, and they said on numerous occasions that the numbers matter.  There is thus a DIRECT line between the instruction “Provide evidence” and what is now in place as a regulation
  3. Therefore, that Chand decision fundamentally reframed the debate – it moved it from being conceptual in nature, to being conceptual PLUS evidence.  
  4. At Chand, the arguments were theoretical: “Here is a model for testosterone and what it does to performance” as the argument by Group A.  Group B responded with “It doesn’t matter, because this is a natural advantage and should not be regulated”, along with human rights arguments.  The former (Group A), is in my opinion a stronger position that Group B, but the point is that neither side had evidence.
  5. Post-Chand, the arguments must be theoretical supported by scientific research: “Here is the evidence, it means that our model is correct”.  The Chand decision is thus the first “watershed” moment, for me personally, and I believe for the case.
  6. And so on the matter of where I stand now, it is the evidence that absolutely has to be appraised.  We have to focus on it.
  7. First we have to identify which evidence to look at. The only evidence worth considering here is direct. That is, there are a few studies where T is given to women and they improve, or reduced and people get worse. This is ‘surrogate’ evidence, indirectly showing how T improves performance (which is really obvious). I don’t discount that, but the issue here is not women who raise their T, it’s women who have elevated levels of T normally and chronically.
  8. In that regard, there is not a single well controlled study on 46 XY DSDs that looks at performance benefits. There is one study that looks at how the performances of THREE athletes declines when they lower T either with medicines or through surgical removal of testes. That suggests 5%. This is interesting, and compelling, aside from the fact that there are only three athletes in the group, and it’s limited to observation without any level of control over crucial confounding factors. More numbers, and better control over confounding factors would shift the needle a lot in favour of the concept of performance advantage in DSDs.
  9. The other study is the infamous original Bermon & Garnier paper where the IAAF took its female athletes and related their performances to their T levels. This is the one we called for to be retracted, because we felt it was that bad, as I discuss below.
  10. This study was on T levels and performance in all women, including DSDs. It is NOT a study on DSDs per se, but nevertheless, is crucial here because this is the study that determined that the 400m, 400m H, 800m, 1500m and Mile events are on the list of events covered by the Regulation. So, with the nuance and limitations, we have to assess what this means for the DSD issue.
  11. In this regard, my personal opinion is that this evidence is substantially lacking, to the point of being fatally flawed, for a few reasons:
    1. It finds evidence of a small advantage due to higher T levels, but only in a very narrow range of events, This is absolutely vital, because it creates a very important “internal contradiction” or paradox in the IAAF’s argument – it sets their concept up AGAINST their evidence, and I think this alone should be enough to reject it.  More on that later.
    2. When they found that performance was related to T levels in only 5 events, rather than concluding that they’d shown evidence for a performance benefit of T, they could just as easily have concluded that there is no evidence for T in 17 out of 22 events in women’s athletics. Position determines perspective, and all that…
    3. The methods used to gather the data are not high enough in quality to be supported as scientifically robust.  The sampling time, the control for other factors like the long flight times, menstrual cycle and use of oral contraceptives etc negate any possible interpretation of the set of studies. The performance side of the association was similarly uncontrolled, and some athletes with massive under-performances are including in the cohort, confounding it significantly.  That same study, repeated again, could show a totally different thing, because the confounders to T levels and the performances were not even acknowledged, let alone controlled for or evaluated
    4. The statistics used are highly, highly dubious.  Indeed, it’s not even solely that they used bad stats – their data is bad, and simply cannot be trusted.  This is why we (Pielke, Boye and myself) called for its retraction last year from May onwards.  When we analysed a portion of the data, we found errors, to the point of non-existent “phantom” data points.  Even after catching and apparently correcting those, there has never been full transparency on what now exists in literature. Calling for a retraction is a massive step in academia, but we believe it was warranted, because the scientific study that ultimately informs the selection of events covered by the Regulations was so bad that it should never have been published.  It is fatally flawed
    5. On this evidence, I must re-emphasise that the study by Bermon et al mentioned above did NOT look at 46 XY DSDs vs 46 XX athletes.  It looked at high T vs low T in a group of women, which included some 46 XY DSDs. So one can argue that the study was not intended to answer the DSD question.  That’s fine, but it is being used to guide the regulation, because it is THAT study that identified the 400m, 800m and 400m hurdles events as the ones where the advantage exists (the 1500m/mile were added later, despite no evidence).  So again, there’s a direct line between the study and what made it into the regulations that were challenged (with one or two changes – they added the 1500m and removed hammer and pole vault)
    6. I think though, that when you have a regulation based on a study that actually assessed something subtly different, that’s a problem in itself.  It requires that you extend the study findings to a new group, data errors and all, and assume that what is “true” in one group will be true in another.  Some will argue this is not all that large a stretch, and there’s some merit to that, given the way it’s being extended, but it still lacks evidence.
  12. So now given that CAS has mandated the IAAF to provide evidence of magnitude (the numbers matter, recall) and that the evidence provided by the IAAF falls way, way short of the standard, robustness, quality and magnitude required, I think the case should have been over.  Perhaps another mandate, one to keep looking, but on the science, I think a solid foundation for the Regulations was non-existent
  13. The reason this matters is because the size of any advantage (and the quality of the research that provides it) is crucial to determining what should be allowed in terms of ‘intervention’.  If there is any risk of harm (and there is), then you need a really compelling case to justify it.  A compelling case means evidence of a large advantage.  
  14. So my position is that the regulation as it stands should not have been defended by CAS.  

2. Into the grey – the concept of biological advantage that is unfair and created by testosterone, and the line between men and women

That said, there is a distinction here, in my opinion, between the EVIDENCE and the CONCEPT.  This is something I’ve long argued, and I want to address the CONCEPTS briefly:

  1. Men’s and women’s sport exists separately for a reason, and nobody reasonable should dispute that the separation the way it is exists is important.  The separation cannot be “at all costs” – it’s just sport, after all, and so at the point where this separation starts to harm people, in a real way,  I think everyone needs to step back and take a look at their values.  It’s not about “all costs”, but it is reasonable for sport to manage the separation fairly, provided it’s objective and guided by some reasonable process and rationale.
  2. Sports authorities have every right to defend a line that is drawn, and so in the same way that sports should measure the mass of boxers before they fight, or the degree of function in athletes with Cerebral Palsy before they let them compete, sports have a certain obligation to “protect” the categories they create, however arbitrary they may seem (and sex separation is not arbitrary!).  The issue here is whether that protection is objective, non-harmful and based on accurate enough variables so as to not create a net negative outcome
  3. I do NOT believe this is primarily a human rights issue. I’ve never been hugely fond of this argument, partly because it is too emotional, partly because it is unnecessary, and partly because I don’t totally agree with the way it is made by most people. 
  4. That said, when I read the media interviews with the likes of Chand and Semenya, I can see that they have had their dignity harmed, their rights to privacy taken away and that is arguably a human rights issue.  In my opinion, these consequences relate more to the way the regulation is implemented than to the regulation itself.  There is little upside for them, on a human level, when things go so wrong and confidentiality fails.  However, I am coming at this from a sporting perspective, and so while I would not discount that, I weight it less when I am trying to evaluate the Regulation’s content (not its enactment).  And my feeling is that no person has a right to be an ELITE athlete and to make money and win titles in sport.  We all have a right to a level of physical activity and sports participation, but not necessarily to enter the elite sports world.  
  5. Back to the root issue, the reason for the separation between men and women is the effect of androgens on the physiological systems that are germane to performance.  One can debate for hours how predictive high levels of T are for performance, and there is without doubt a lot of poor thinking in this space – when people argue that high T does not guarantee performance and thus T is not the difference between men and women, it makes me want to bang my head repeatedly on a desk.  It is a poor argument, appallingly lazy and disingenuous.  
  6. Fundamentally, the difference between the men’s world champion and the women’s world champion in any given event is ‘androgenisation’ or virilization that drives a set of secondary sex characteristics including higher muscle mass, lower fat mass, greater strength, increased cardiovascular capacity and function, more haemoglobin, different skeleton.  There are of course other changes, but they are not germane to sport
  7. When discussing T and performance, it is important, in my opinion, that the issue is framed appropriately.  By this, I mean that one should NOT be asking whether women with high T outperform women with low T, or that men with high T are better athletically than men with low T.  This approach creates numerous “loopholes” and erroneous thinking, the main one being that you can explore this relationship, NOT find it, and then conclude that T is not important.  This is what many academics have done – they will look for associations between T and performance in a group of athletes, all men or all women, and then find no association, thus concluding that T has no effect.  
  8. The problem with this argument is that when you look at a relatively ‘homogenous’ group, like women, or men, who exist in those groups because of the effects of that variable (T, in this case), then the effect of that variable disappears, because they’re all matched for it already!  For instance, in a group of elite marathon runners, VO2max will have poor predictive value for performance.  But that’s because they all have high VO2maxes to begin with!  If you were “stupid” about how you frame your search for VO2max and performance, you’d conclude that it has no impact on performance.  This is what people are doing with testosterone in men vs women.
  9. So, what should be asked is whether VO2max, in the example above, differs in the elite group compared to the general population, and then it becomes obvious that it is crucial.
  10. So too, the point about testosterone is not that it guarantees better athletic performance, but rather that it creates the potential, in the right person (Athlete A), for a performance advantage that is so large that a person who is identical in every respect with the exception of testosterone (Athlete B) will be 10% to 12% slower than Athlete A.
  11. In this regard, Testosterone is the ticket that gets you through the door, into the party.  It doesn’t determine what happens once inside, because once in, you’re part of a select group (50% of the world, give or take, in this case), who have the POTENTIAL or the opportunity to achieve XYZ% advantages.  But it’s totally false to say it doesn’t matter, when in fact it’s the thing that gets you started!
  12. So the use of testosterone as a differentiator between men and women is reasonable, in my opinion, but imperfect.  Anyone who disagrees on the “imperfect” nature probably doesn’t understand the concept of how testosterone is responsible for the difference between two otherwise matched human beings.  
  13. One of the big problems with using T is that the concentration of T alone doesn’t tell you how much effect it has on the body – the same level in two human beings can have different effects or outcomes.  And the same outcomes could occur despite different levels of T.  Ultimately, one might one day be able to quantify an overall “virilization sensitivity index” and combine the amount and the sensitive to understand exactly how much influence T has. This might one day look like the methods used to assess insulin sensitivity, but we are not there yet.
  14. Another problematic argument in this area of concept is the notion that having a high T value is a natural advantage, and should thus be ignored, because after all, we don’t regulate things like height in basketball or foot size and arm length in swimming. I’ve seen academics make this argument, and I don’t agree with it. I want to talk briefly about why this is problematic, and ultimately, possibly damaging to the sport, if these people were to win their case:
    1. First, we don’t compete in categories of short people in basketball or people with small feet and short arms in swimming.  This is important, because our decision NOT to “protect” the people with these “disadvantages” means that we don’t need to concern ourselves with things like feet size or arm length. It’s irrelevant. If we decided to police foot size in swimmers, maybe it would become relevant.
    2. But, and here’s the thing, we HAVE decided to protect the competitive integrity of women’s sport. We do this because we understand that in two athletes who are equal in every respect except for biological sex, the effects of testosterone in the biological male create such a large disadvantage for the athlete without those effects (biological female), that they would vanish from sport altogether. Thus, having drawn a line, we must defend the line. 
    3. Perhaps one can make a reasonable argument that we SHOULD defend a line of height in basketball – short people, below 1.81m.  But then, someone who is 1.815m tall can’t play down.  That would be easy to do because height is easy to measure.  Sex unfortunately is not, but the point remains, we decide somewhat arbitrarily to create categories.
    4. I also reject this comparison because I guarantee you that having small feet or short arms is not as much of a disadvantage as having no benefit from testosterone.  In other words, these “disadvantages” are not equal in size to that of being female in sport.  If all things are equal except for Variable A, then the person with smaller feet is not going to be 4000th in the world rankings for humans.  But when all things are normal except for Testosterone, that person would be. 
    5. Qualitatively and quantitively, then, testosterone differs from these commonly used arguments. I don’t know where I’d put things like muscle fiber type in this conversation – it may have the same effect size as “androgenization” due to high T, but I don’t know.  Regardless, it’s moot because again, we don’t have an Olympic champion for “slow-twich muscles under 60%” and another for “fast-twitch muscles over 60%”.  If we created that category for those slow-pokes, then we’d have to concern ourselves with this argument
    6. Finally, this argument that says “Don’t regulate natural advantages” ends in a disaster for women’s sport.  Why?  Because being “male” is a natural genetic advantage! It may be the greatest of them all! If you have the Y chromosome, and the testes, and the testosterone, and you can use the testosterone, then you have a huge advantage compared to a woman who has all the same other attributes, but not those.  So if you really want to get rid of regulation and separation based on “natural genetic advantages”, then you should just as well throw all humans into one race, and crown the “World’s fastest human”, and see how women get on.
  15. So, to wrap up the concept – sport has a right or even obligation to manage the male vs female issue.  Doing so on the basis of testosterone is reasonable IN THEORY, though it does demand certain “nuance’ that I don’t know is always recognised by both sides of this issue.

3. DSDs and the male-female spectrum – why you shouldn’t just treat a DSD as a biological male

  1. Note that this is not the same thing as the DSD individual vs female issue.  A 46XY DSD is not necessarily biologically male – this, indeed, is a point of debate in this issue.  They DO lie on a spectrum, and since I’m interested in performance, you can pin that performance advantage of having a condition causing a 46 XY DSD on a spectrum of 0% to say, 12% (the full male advantage).  But at this point, knowing where to drop that pin is the problem. 
  2. The very nature of a DSD is that they are not able to use male hormones in the “typical way” – this is why they exist as DSDs, rather than as men or women, clean and simple.  So when we apply everything I’ve written above, we must just be mindful of the distinction, and the reality that if someone is born “female enough” (I hate that word, but I can’t think of a simpler qualifier right now) to be identified as a baby girl, raised as a girl, becoming a woman, there is already some “atypical” or different physiology that may have performance implications
  3. A final point on concept – the way one words the testosterone advantage is quite important.  I need to explain this
    1. If you say, with confidence, “athletes with high testosterone levels have performance advantages”, you are being more prescriptive than biological complexity allows.  What you should say if you are being precise is that “Athletes with high testosterone levels have a potential biological advantage that MAY create an insurmountable advantage when comparing two athletes who are matched in every respect other than having high T levels”.  This may sound semantic, but I think it’s quite important.  
    2. The reason this matters is because of how it sets up a discussion around transgender male to female athletes, by the way.  The moment you commit to a “athletes DO have an advantage when their testosterone levels are high”, then you create what is an easily falsifiable theory – all one has to do is to find a case of a group of people who have high T and are not good athletes, compared to a group who has low T and ARE good athletes, and you can say “This group of people disproves that T is significant for performance”.  This is what a lot of academics have done (my head on desk banging days testify to this!).  It’s much better, and much more accurate, to say “Testosterone MAY drive the biological factors that confer advantages that no other characteristics can match, such that two individuals who differ only with respects to T may be 10% to 12% apart in performance”

OK so that’s the concept.


4. Appreciating that DSDs are not created equal, and the implications for performance advantages

What you have now is a concept, which I think is theoretically sound, and then you have the requirement for EVIDENCE.  And this then brings the discussion back to where I began above – the evidence.  So:

  1. IN THIS GROUP OF ATHLETES with DSDs, who are not men who transition to women as occurs for trans athletes, but are people who were “female enough” to be identified as girls at birth, are raised as girls, start competing as girls and then enter women’s sport, is there evidence of this “insurmountable advantage”?
  2. One of the other conceptual problems, in my opinion, is that you have a policy that covers a collection of conditions, but there is no theoretical basis to think that all those conditions would confer an advantage.  So even BEFORE evidence is considered, the theory stumbles a little bit.  That is, DSDs in a term describing a collection of conditions, and in the IAAF regulation there are five such conditions identified. Only some of those are documented in sport, so we can consider them in turn to understand why there is a scientific problem here that the concepts cannot deal with:
    1. Some of the conditions causing DSDs almost certainly do NOT give an advantage, because the person who has high T levels is completely insensitive to it.  So in this condition, you have someone who is XY, produces testes that produce and release testosterone, but that testosterone is like a key that doesn’t fit the lock, because the body’s receptors are insensitive to it. All the keys in the world won’t open the door.  That’s why they develop as female even though they have internal testes and high T levels.
    2. But they’re COMPLETELY insensitive.  Now you can nudge the needle one degree over, and you land on a condition that is called PARTIAL Androgen Insensitivity.  Here, the person can use the T, but only partly.  I would say that by definition, this person cannot be managed by the same regulation as our previous case who is completely insensitive to androgens.  But you have a real problem here, because you have to ask “How partial does it need to be before it becomes unfair?”.  If you’re only partly able to use the T, then are you getting the advantage?  Arguably not, but where do you put the point on the spectrum?  From a scientific perspective, there’s a dilemma here. 
    3. I can’t see how these two conditions (CAIS and PAIS) an be treated the same as one another.  Then you go one step further, to Alpha-5-reductase deficiency, which is a condition where a person can fully use testosterone, but cannot convert it to another hormone called DHT.  In the absence of DHT, the external genitalia do not develop in the typical way, and so you have ambiguous or female appearance at birth, but potential for testosterone’s benefits later, particularly post adolescence.  This is a lot trickier to handle, but the scientific issue here is whether DHT has any effects on any physiology that may affect performance?  For instance, might it be that DHT influences fat mass, muscle mass and muscle strength?  If so, then a person who lacks it has disadvantages, and now you have to weight that disadvantage against the theoretical benefit of using Testosterone.  Which itself may be used more in some people than others.   
  3. The point here is that the collective regulation of a number of different conditions creates conceptual problems, because the conditions that are grouped together as DSDs don’t all present the same.  The potential performance enhancement from each ranges from 0% to the full 12%.
  4. If you start from the position that a 46 XY DSD is “fully biologically male”, then you’re saying that the potential performance advantage is going to be 12%. But you’re wrong, because it’s clear that some are much less, and so your argument absolutely must be more nuanced than this. And that means the same question “Is there an advantage?” cannot be answered for them at once
  5. Ultimately, I think that if a regulation is to exist, it should actually be narrower, and cover specific conditions, not a catch-all for what eventually appears as a symptom (having high T levels

5. Where the concept meets the legal system

  1. Back to the question – is there evidence for a biological-male like advantage in performance in a DSD woman?  Possibly.  In fact, and let me be clear about this – I think that in many cases, especially the PAIS and the Alpha-5-Reductase cases, there IS likely a biological difference due to T, and it almost certainly is worth a performance benefit.  However, in the absence of knowing its size – where on that spectrum should we drop the pin? I find it very difficult to assess what to do with the advantage.
  2. Also, in reality, there is no evidence to support the notion (even if the notion is very sound, theoretically).  It hasn’t been studied – even the Bermon study was looking at high T vs low T within women, not 46XY DSDs vs 46XX women.  So the use of that study itself poses some flaws, but it’s so crucial to the Regulations that it must be evaluated.  How do we know it is crucial to the evaluation?  Well, because the events that are covered by the Regulation are the 400m, 400m H, 800m and 1500m, and those are the events found in the Bermon study to have the advantage when T is higher.  The 1500m was added later, which is another matter, but the point is, the Regulations are an evidence led document.
  3. So we proceed with the earlier evaluation of that research.  The advantage demonstrated by the IAAF’s research is trivial in only some events, similar in nature to what you’d find if you compared the groups by muscle fiber type, or height probably, or enzyme content etc.  That magnitude of advantage needed to be higher for the foundations to be solid enough.  I remember when the study came out, and I read it, thinking “Is that all they got?  This study design, this result, in this handful of events?  Is that it?”
  4. The fact that the performance advantage, admittedly small, existed in only a few events is absolutely crucial, because of that paradox it creates.  Think about it:
    1. The concept being put forward is that testosterone is responsible for biological differences that drive performance advantages between men and women.  
    2. This MUST be true across the full spectrum of events – testosterone does not discriminate.  You see this in the records.  The gap is between 10% and 12% for every running event from 100m to marathon, and for jump events.  Whether the physical effort lasts 2 seconds or 2 hours, the male-female gap exists from short to long on that spectrum.  Testosterone does not discriminate.
    3. Similarly, when you look at the doping practices engaged by eastern Bloc countries and the USA in the 1980s, you see performance improvements everywhere. Not just in the 400m, 800m and 1500m. Everywhere. From 100m to marathon, from swimming to running. Testosterone does not discriminate
    4. So when you then find a difference from high T in some events only, there’s an internal contradiction, because the evidence (or lack thereof) creates a tension and actually disproves your own model!
    5. The way this paradox plays out is particularly bizarre, and highlights the issue. As it stands, an Athlete would be ELIGIBLE on a Friday and INELIGIBLE on a Saturday simply because they’re running different events on those two days! The same person. They might be in the 200m on Friday, and the 400m on Saturday. Or the 3000m on Friday and the 1500m on Saturday.
    6. This situation is, to be blunt, whacky. The same athlete, who is deemed ineligible because they have an advantage by virtue of “male-like sporting biology” is eligible in another similar event because…um…the male-like advantages stopped being large enough? Not according to the model.
    7. Point is, the model and its evidence create an internal tension that either negates the model or the evidence!
  5. In defence, and one thing I have realised in this debate is that there is ALWAYS a counterpoint, the IAAF might here argue that the reason they haven’t found the effect in other events is because there haven’t been enough athletes with the condition in those events, whereas in the 800m, for instance, they have some.   OK, fine, but then there is a question – why would the DSD group not be found across the spectrum too?  If this argument is true (and we don’t know if it is the case, other than that the Bermon study allowed one to identify where the half a dozen athletes were with high T levels), then DSDs should be present everywhere too.  So this undermines the argument.  Rather than supporting the regulation, the Bermon evidence actually suggests there’s a problem with the model or concept.
  6. I don’t believe there is a problem when it comes to biological male vs biological female, however. I think this “paradox” is evident when one compares DSD to female.

6. First, do no harm – the medical ethics of the Regulation

Finally, the issue of harm.  This was my second “watershed” in terms of my feeling on the policy.  The first was when I saw the Bermon evidence, and how weak it was, and then when we tried to analyse it and basically ran up against a wall of ‘opaqueness’ and non-transparency.  

The second is since I got involved, discussing with various medical professionals about the issues related to the medical treatment necessary to compete.

  1. Recently, the World Medical Association declared in a statement that any doctor who complied with the policy would be in violation of medical ethics.  What they are in effect saying is that doctors should be very careful about complying with the regulation. That seems to me a fairly big deal, making the Regulations un-implementable.
  2. Indeed, in the 10 min after writing this, I read that the WMA will urge doctors NOT to comply with the Regulation. They have said: “The World Medical Association has reiterated its advice to physicians around the world to take no part in implementing new eligibility regulations for classifying female athletes.” Whether or not this carries the weight to actually stop implementation, I do not know.
  3. The basis for the WMA opinion is that the regulation would require a person previously healthy to start using medication, possibly in super high dosages, for a purpose it is not intended.  That off-label use of a drug, without clear signs of safety or management, was thought that by WMA group to be untenable.
  4. The doctors I have engaged with seem to agree, and they find the concept of turning a healthy athlete into a patient difficult to understand.  An oath to protect the health and beneficence of the patient is challenged by the Regulation that compels off label use of medications in unproven dosages and without studies for efficacy and safety. The athlete has little choice here, so there is an element of co-ercion, but the net result is the possibility of harm (thrombolytic events being the main one, especially in athletes for whom air travel is a necessary risk factor).  This is where proportionality comes in.
  5. In this entire debate, as I said above, it seems to me that every single point has a counter point, such that both sides often claim the same thing as evidence supporting them!  It really is remarkable that way.  There is one exception, though, and this is it – there is no counter argument to the harm argument, and by harm, I mean physical harm, as well as the psychological harm that I touched on previously.  Some of the most compelling testimony in the Chand decision came from those involved on the social side.  I think that medicine and science has an obligation to pay attention to those things – they are medical and ethical rights, if not human rights.  So I know I said up top that to me it’s not a human rights issue, as in a “right to compete”.  I do think, though, there are arguments for medical and ethical rights that are very much in play.
  6. The combination between the weak evidence for the advantage, and the possibility of harm, in my opinion, is why this policy should not have survived Semenya’s challenge

7. The bottom line: Concept and theory vs Evidence and Factual data. The winner is…

  1. The decision of CAS basically comes down to whether the CONCEPTS described above outweigh the EVIDENCE problems described above.  It was always going to be that way.  In the Chand decision, CAS recognized that there was insufficient evidence, and they took the sensible option of asking for it.  Now, in 2019, we’re in a situation where one party is saying “Right, here’s the evidence we needed”, and the other is saying “that’s nowhere near enough”.  It is apparent from the outcome that the CAS have sided with the former party, and have decided the evidence is sufficient.
  2. It would seem to me that had this been based on the quality of evidence, the integrity of the scientific process, and procedural integrity, rather than the biological concepts for testosterone and performance advantage when comparing biological males to females, the outcome arrived at would not be possible.
  3. The key points of the decision summarized in the press statement and the summary, have an element of schizophrenia about them.  It’s interesting to me that when the Chand decision was granted, it felt like they were saying “Your concept is sound, we support it, but we see no evidence, so that’s what is missing”.  And here, it seems a mirror image, as if they’re saying “The evidence is there (I dispute this, of course), but there are some issues about the concept and its implementation”.
  4. So it seems different, and I’m not sure why. I do wonder whether the growing concerns about the Transgender Regulations, and the fear about men identifying as and competing as women, has infiltrated the thinking. Well known scientist, doctor, sex and gender expert, and lawyer, Paula Radcliffe, has certainly been trying hard to conflate the issues when she can. I wonder if the prevailing wind direction shifted between 2015 and now, such that fear of a “trans-invasion” has coloured the way we view biological male, biological female, and ambiguous cases?
  5. In the CAS decision, it seems that there is a lot there that they are concerned about – the inclusion of 1500m despite no evidence of a performance difference is the obvious one where CAS has suggested the IAAF to reconsider.  I doubt they will – having sat down and consciously added the 1500m to the list of events covered by the Regulations, I can’t see the IAAF saying “Alright then, since you asked nicely”.  And the other area of interest is the notion that if new evidence emerges regarding harm, then the IAAF might decide change the situation based on the observed risks and harm to the athletes.
  6. It is important to note that this and any other decision on this Regulation is theirs and theirs alone to make. CAS has no further role in the Regulations, and the IAAF now control everything that hpapens. The “living document’ of the decision allows them to add, remove or change things as they see fit, without oversight and presumably without option for challenge by the athletes affected. This is a major win for the IAAF.
  7. Bottom line – CAS heard and recognized all the things I have described as concerns – the weak evidence, the Bermon study’s failings, the risk of medical harm.  They simply decided that they didn’t matter as much as the theory and concept.  That seems substantively different compared to 2015/16, when they ruled on pretty much the same set of things (minus the evidence), which means that the evidence was enough to sway them.
  8. That really disappoints me, on a personal and procedural level.  If a study that has multiple data errors is still good enough to provide a reasonable support to a discriminatory policy (their words, not mine), then we really failed to make the case.  Or, the quality of the evidence just didn’t matter much to them, and we failed to convince them of it.

    It comes down to what you weight more – the concept of the advantage, or the lack of evidence for it.  They went for the former.  The end.


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