The Court of Arbitration for Sports, the final word on disputes in Olympic sports, threw out the baby with the bathwater. I’m talking about the recent CAS decision to allow Indian sprinter Dutee Chand (above) to compete again. Chand was banned from competition last year because she is hyperandrogenic—her body naturally produces levels of testosterone that exceed the International Association of Athletics Federation’s upper limit for female athletes. Rather than submit to surgery or medication to suppress testosterone, she challenged the IAAF rule and filed a claim with the CAS to continue competing as a woman without altering her hormonal balance.

The CAS upheld her request, and the decision is being hailed as a human rights victory, an activist victory, a victory for female athletes who have struggled since the beginning of women’s sports to be judged by performance rather than appearance. It’s being hailed as an expansion of the definition of being female.

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Chand’s victory may be all those things, but it comes at the expense of fairness on the track

The IAAF’s testosterone limit, instated in 2011 after a history of grotesque attempts to delineate men’s and women’s competitors, was actually quite fair, reasonable, and not humiliating. It was never meant to determine who was female and who was not, as past methods did. It had nothing to do with looking feminine enough, or limiting how fast or how far female athletes could go. It was about fairness, and the level at which testosterone provides an unfair advantage.

To be male is a biological advantage in sports, particularly track and field, where speed and strength are defining factors. Testosterone imparts more muscle, less fat, the basic tools of speed. The inevitability of that seems to piss some women off, as if men devised biology as an evil plot. The reason women compete separately is to ensure fairer competition.

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Between male and female is a nearly infinite continuum, but sports demand rules, categories, dividing lines that form a frame of reference. Otherwise, contests are meaningless.

IAAF doctors arrived at their 10 nmol/L limit for testosterone in women in 2011 by analyzing non-athletes, elite athletes and women with polycystic ovary syndrome that results in high testosterone production. The highest measures found were 4.5 nmol/L, so to be as fair and inclusive as possible, they added five standard deviation points to that and came up with 10 nmol/L as an upper limit of testosterone in women. This number was within the normal male range for testosterone, so the doctors felt comfortable setting women’s upper limit there: They figured any woman with levels above 10 nmol/L would be an extreme outlier and would derive unfair advantage from testosterone at that level.

“That seemed very conservative to me, and conservative is good in this context,” said South African sports scientist Ross Tucker, who has studied gender issues in sports. “The last thing you want to do is exclude women who are clearly female, but because of a relatively common condition, suddenly find themselves ‘illegal’ with respect to testosterone. I thought the 10mM cut-off was quite fair.”

Dutee Chand has hyperandrogenism, a condition in which her body naturally produces testosterone above the 10 nmol/L limit. She was raised as a girl, unaware of the condition until she started competing internationally as an 18-year-old. Though her testosterone levels exceed the IAAF’s limit, Chand has posted only a moderately good 11.62-second 100-meter best. And this is partly why the CAS disallowed the IAAF limit—testosterone effects vary from person to person, and it’s one of many factors that play into performance. Her good-but-not-great times suggest either her androgen receptors are not particularly sensitive to testosterone, or she may simply be a mediocre athlete. It’s possible that if Chand had a more average 3 nmol/L testosterone level, she’d only be a 13.5-second 100-meter runner and would never have qualified for international competition.

So Chand was an easy, safe, non-threatening case to arbitrate: She’s trained hard, she’s done nothing wrong, she’s not doping, and most importantly, her high levels of testosterone don’t appear to give her a advantage because she’s not blowing away the competition. Of course, she should be able to compete. Chand is happy, the general public is not overly challenged because she does, in fact, look feminine, and the CAS has appeared to solve this sticky problem. All good.

But all hyperandrogenic women are not Dutee Chand. What if Caster Semenya had filed that protest? The South African 800-meter specialist is also hyperandrogenic. Semenya, too, was raised as a girl, unaware of any biological condition until she turned heads in 2009 with a world leading 1:55.45 800 meter performance. Unlike Chand’s 11.62 100 meters, Semenya’s time is eye-poppingly good, the 25th fastest 800 meters ever run, most of those speedier performances produced in the super-doped 1980s. One of the favorite doping tools of that era, by the way, was testosterone.

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The situation was horribly botched. Questions were raised and prurient scrutiny focused on her gender, rather than any unfair advantage she may have had, and a traumatizing circus of events ensued. She eventually submitted to undisclosed treatment to lower her testosterone levels and still posted a second-place 1:56.35 at the 2011 World Championships. So, Semenya is apparently both more receptive to the high levels of testosterone her body produces and an exceptionally talented athlete. Her performances (very few women running now could even come close, much less beat, a 1:55 800 meters) make it very hard to argue she doesn’t derive powerful advantage from her high testosterone levels.

In siding with Chand, the CAS decision gave the IAAF, track and field’s governing body, two years to submit scientific evidence that women with natural testosterone levels above 10 nmol/L have an unfair advantage. If the IAAF cannot provide scientific evidence of unfair advantage, testosterone limits will be permanently tossed out and anyone who is legally a woman—in the case of trans athletes, those who have completed surgery, hormone therapy and are legally women—will be able to compete in that category.

And scientific proof is going to be almost impossible to come by. There is circumstantial evidence. Part of the data that went into the IAAF’s 10 nmol/L testosterone limit came from a study by Dr. Bermon of all the female athletes at the 2011 Track & Field World Championship. He found that hyperandrogenism was 140 times more prevalent in elite female athletes than in the general public.

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“I’d call that pretty strong evidence for some advantage,” said Tucker. “The alternative is that they start off the same but the process of training elevates their testosterone to what are basically pathological levels, and that’s difficult to believe or to find evidence for. So in my opinion, the evidence is already there, but maybe needs to be shored up and increased to three or four times this size: You probably need to find 50 cases, which means testing maybe 8,000 athletes, and then you’d have compelling circumstantial evidence.”

Testing 8,000 elite female athletes is almost as improbable as the alternative tests are unethical.

“You’d have to give a group of women testosterone and see how they improve, which is, obviously, ethically dodgy,” Tucker continued. “There is another way, and this is the study that I would do if it wasn’t also ethically dubious. It’s to identify those women who have disorders of sexual development [such as hyperandrogenism], suppress their endogenous testosterone, and see how they slow down. Then remove the suppression, and watch how much faster they get. Caster Semenya may be a real life example of that happening.”

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Though she suffered depression, a coaching change, and a string of injuries in recent years, Semenya is on the comeback trail. In 2014, she only managed an 800 meter time of 2:02: Just after the CAS ruling on Chand’s case, Semenya ran a 2:00.72.

Freedom to compete without suppressing testosterone, or even knowing testosterone levels, may encourage more of the very small number of hyperandrogenic women in the general population to jump into the very small pool of Olympic or World Championship athletes.

The CAS decision to erase any defining line, aside from exogenous doping, from women’s sports will certainly be a human rights victory for hyperandrogenic women, but not so much to the masses of women who don’t have that testosterone advantage. Whether it’s Semenya blasting a 1:54, or someone else rocketing to a 10-low 100 meter, it’s going to feel unfair, discouragingly unfair. And that’s the whole idea behind women’s sports.

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“For now, they’ll have to let people who identify as females compete as females, and hope that the outlier doesn’t shatter the illusion of equality,” Tucker said.

photo credits: Flickr, Getty Images