Strength Of A Woman? Surabhi Shukla and Anubha Singh

Guest post by SURABHI SHUKLA and ANUBHA SINGH

The Sports Authority of India recently excluded Dutee Chand from the Commonwealth Games on the basis that her androgen level exceeds the ‘normal’ range thus enhancing her performance and giving her a competitive advantage over other women athletes. This test seeks to eliminate any ‘unfair’ advantage which some women may draw from tested ‘elevated’ androgen levels and is invoked only when women perform excellently in non-traditional competitive sporting arena. Failing to accommodate the role of environmental factors and variations in ‘female’ bodies, such tests are deep rooted in the ideas of gender stereotyping and discrimination and question women’s abilities to perform beyond traditional gender defined roles. Understanding international standards and the constitutional guarantee of fundamental rights in tandem, the unconstitutionality of these tests and the various rights violations visited upon the athlete Dutee Chand begin to surface. Instead of focusing on this incident as a conspiracy or a political scheme, it is time that the matter is seen as violation of rights of Dutee Chand both on the grounds of the test failing to meet international standards and on its patent unconstitutionality.

 

“I am completely shattered over the development. I am an athlete and wanted to bring glory to my country. All my efforts have gone astray,”

Dutee Chand as reported to the Daily Excelisor, 19th July, 2014

STRENGTH OF A WOMAN?[i]

Introduction:

Dutee Chand is an 18 year old sprinter. She has recently broken and set the national record for the 100m (11.62 s) and the 200m (23.57 s) race. She was all set to represent India in the Commonwealth Games in Glasgow, Sweden as a member of the 4* 400 m relay team. However, shortly before she was scheduled to participate in the event, her name was dropped from the Indian line up as the Sports Authority of India (SAI) declared that she had been detected with female hyperandrogenism. This was considered to be ground enough for Dutee Chand to be dropped from the women’s relay team.

According to the Sports Authority of India:

“The athlete is not fit for participation in a female event due to female hyperandrogenism. The athlete will still be able to compete in the female category in future if she takes proper medical help and lower [sic] her androgen level.”[ii]

As per the Standard Operating Procedures (hereinafter SOP) laid out by the Ministry of Youth Affairs and Sports, female hyperandrogenism is a highly technical condition where testosterone levels in a woman’s body are found to be higher than 2ng/ml[iii]. These procedures govern Indian athletes’ participation in national and international competitions. Dutee Chand’s performance in the months leading up to this test had been outstanding. Now that she has been benched because of this particular test alone, bringing into question her ability to participate in elite athletics in the future, we are lead onto the irresistible inquiry about the relevance of this test to an athlete’s participation in sports. One needs to travel no further than clause 1.1 of the SOPs to understand exactly why the SAI considers the condition of female hyperandrogenism as valid ground for Dutee Chand’s exclusion.

Clause 1.1 states:

“…the performances of male and female Sports persons may differ mainly due to the fact that men produce significantly more androgenic hormones than women and, therefore, are under stronger influence of such hormones. Androgenic hormones have performance enhancing effects, particularly on strength, power and speed, which may provide a competitive advantage in sports.”[iv]

The patent underlying assumption in these SOPs is that higher androgen levels alone in an athlete’s body are responsible for their higher performance. The latent assumption being that biology alone determines levels of performance. Upon applying these assumptions made by SAI in Dutee Chand’s case, two points surface:

  1. That Dutee Chand’s androgen level alone was responsible for her exceptional performance;
  2. Her androgen level alone defines her participation in the female category to such an extent that a mere variation in it is sufficient to take her out from the female category altogether.

Dutee Chand’s case cannot be looked at in isolation as it has great implications on women’s abilities to participate and perform in competitive sports. If indeed SAI believes that androgen levels in a woman’s body are solely responsible for her performance and it has set the acceptable levels of androgen in a female’s body at 2ng/ml, then it has indeed set the limits to which a woman can perform.

A Case of Gender Stereotyping:

As the controversy related to this test was unfolding, SAI had cautiously stated that this is not a test for gender verification but to determine whether Dutee Chand can compete in the ‘female’ category or not.[v] However, it is important to remember who this test applies to – it applies only to ‘females’. Therefore, through this test, SAI is actually creating two categories of women- one who is ‘female’ enough to participate in sports and the other who is perhaps something ‘more than a female’ and hence cannot compete with others in the female category. SAI, of course, has fixed in its imagination a model which dictates how much women can perform.

This point is explained by looking at the timing of Dutee Chand’s test. As long as she was performing within these defined limits, that is, she had not broken the national record, no ‘reasonable doubt’[vi] had arisen in SAI’s mind as to whether she can participate in the female category or not.[vii]It is indeed after she broke the national record and performed better than most other established women athletes that SAI thought of testing her hormonal levels to determine whether she can compete in the female category. This is a clear case of stereotyping of women’s abilities to perform.

It is unfortunate that SAI is merely reflecting the larger doubts which society instills in a woman’s physical abilities. As long as the woman is performing her traditional gender roles, her physical abilities are not questioned – they are in fact appreciated. A woman who carries an average of 10-15kgs of firewood on her head uphill for 3-4 km. on a daily basis or another one who carries 8-10 pots of water on her head to meet the household requirements would never be questioned about the androgen levels in her body. Such women would in fact be appreciated and revered for performing their domestic duties. However, if the same women were transported to the male dominated arena of competitive sports and started to perform better than most others in her category, ‘reasonable doubts’ could be invoked about her place amongst other females.

III. The Role of Environment Factors:

Dutee Chand’s higher androgen level is a biologically occurring phenomenon. She did not use any performance enhancing drugs to increase her androgen levels. According to SAI, this higher level of androgen provides Dutee Chand with a competitive advantage over others in her category. What is missing from SAI’s representation of events is that the arena of elite athletics is sprinkled with many instances of naturally occurring biological advantages. A very tall woman will not be disqualified from the women’s relay team because she takes longer strides thus giving her an additional biological advantage over others.

Apart from these biological advantages, there are several advantages that are merely gifts or accidents of birth. As Manu Joesph has mentions,[viii] Dutee has been competing with athletes who were “…much larger than her, women from affluent nations, who ate foods as children that she had never seen, received healthcare that she was not fortunate to receive, and were trained in ways that were beyond her means until late in her life.”[ix]

In short, the ‘playing field’ in athletics is never level. Athletes competing within the same sport vary from one another not only in terms of their bodies but also in terms of how much they have been able to train these bodies to compete with others. This depends heavily on their country of birth, social and economic circumstances of their birth and upbringing, privileges and encouragement available to them to pursue the sport of their choice, coaching and training facilities available to them and also their access to nutritious food and proper healthcare.

Dutee Chand is stronger, faster and a better runner than most women to be able to compete at the national level. This cannot be a reason for her removal from the national team- in fact it is because of this very reason that she made it to the national team! No two individuals are identical and hence internal differences will always exist between athletes. Are we then to exclude athletes on the basis of factors beyond their control? The truth remains that perfectly similar athletes do not exist and may not even be desirable. Each athlete is her own bundle of natural and environmental advantages and disadvantages which affect her performance in competitive sports. To single out but one such debatable advantage, is nothing but to subject her to discrimination of the most arbitrary and sadistic kind.

SAI Not Adhering to International Standards:

For women to be able to compete from the female category, SAI has defined a very strict criterion – their testosterone levels should be <2ng/ml.[x] However, it has given no account of the ‘scientific’ argument/study/finding/justification behind making such strict demarcation, which decides the future of Indian sports women. How, then, did SAI define such strict technicalities of hormonal levels produced endogenously (which an athlete has no control over) which govern the classification of what makes a woman ‘female’ enough to compete in the ‘female’ category?

The international guidelines, defined by the International Athletics Association Federation (IAAF) which governs a sportsperson’s participation in the ‘male’ or ‘female’ category in international sports events state that:

“…female athlete is eligible to compete in women’s competition if (i) … (ii) she has androgen levels within the male range but can establish that she derives no advantage from such levels. Androgen levels for these purposes are measured by the concentration of total testosterone in serum.”[xi]

Hence, IAAF recognizes that women produce varying levels of androgen. As is evident from the guideline stated above, in international sports, women can still participate in the female category if tests show that they are not deriving any advantage from their elevated androgen levels. Higher levels of androgen for women athletes participating in different categories do not mean anything if understood in isolation; the perceived advantage because of this higher androgen level has to be proved before taking a step as drastic as withdrawing an athlete from the team right before an important event.

The Indian SOPs however, do not have any similar clause. In other words, in the Indian scenario, it is sufficient to prove that the athlete in question has a testosterone level of >2ng/ml in her system to disqualify her from participating in the female category. Dutee Chand was therefore, eliminated on the simple basis that her testosterone was found to be >2 ng/ml without ascertaining whether the increased testosterone level in any way contributed to enhancing her performance. The Indian SOPs therefore, has made no provision for acknowledging variations of androgen levels in female bodies. By adopting such restrictive filtering on the basis of biological demarcations, SAI, in effect, is eliminating chances of participation for a range of sportswomen in the country.

Additionally, SAI is turning a blind eye to the cultural implications which these ‘eliminated’ sportswomen face back in their hometowns and neighborhoods. Dutee Chand has been socialized as a woman and identifies as one. In the present socio-cultural reality, by associating her performance with a certain perceived characteristic of ‘maleness’ (i.e. a higher level of androgen), SAI has insensitively brought into focus, her cultural identity as a woman bringing humiliation and disgrace to her. Indeed, Dutee Chand is reported as stating, “Paperwaale ghar pahunch gaye, aur Ma se poochha main ladki hun ya ladka[xii] (“Media has reached my home and is questioning my mother, whether I am a girl or a boy”).

  1. The Female Hyperandrogenism Test Conducted by SAI is Unconstitutional:

The hyperandrogenism test conducted by SAI is patently unconstitutional. This can be understood by looking at two points:

  1. An Unequal Test: It is important to note that neither the Indian SOPs nor the notes of the IAAF mention a ‘normal’ male androgen range. Since there is no ‘normal’ range indicated for men, they will never be subjected to a testosterone test, no matter how good their performances are. Thus, eliminating even the possibility that some men too might have an advantage in performance over their peers in competitive sports. This means that women alone are subjected to this test of elimination. What in fact lies at the heart of this discrimination is the stereotypical mindset of the makers of these regulations such as the Indian SOPs. Men’s exceptional performances are never questioned – never is an effort made to ascertain whether testosterone or any other hormone is responsible for it; but women’s exceptional performances are questioned when they rise beyond the performance of other women- to test whether they are more than female- to see whether it is in fact, the presence of a hormone traditionally connected with masculinity and hence higher performance- ‘testosterone’ which is responsible for lifting them beyond the realm of their kin!

 

  1. No Connection Has Been Established between Dutee Chand’s High Testosterone Level and her Exceptional PerformanceArticle 14 Violation: Article 14 of the Constitution guarantees equality. It has been understood by courts to mean that equals should be treated equally and unequals should be treated unequally. In other words, the Constitution does not require a circumstance blind application of Article 14. People can be divided into classes and treated differently in a way that still passes the muster under the Constitution if the following tests are met: 1. People are divided in two classes on the basis of an intelligible differentia; 2. there is a reasonable nexus between the differentiation and the object sought to be achieved. It must be seen whether Dutee Chan’s different treatment from other women athletes passes this Constitutional test.

Dutee Chand was placed in a separate category than other female athletes- i.e. she was excluded from her sport. She was separated from other female athletes because her androgen levels were different from other female athletes (intelligible differentia). But, does this intelligible differentia- this differentiation and exclusion of Dutee Chand on the basis of her testosterone, actually contribute to the ‘object’ sought to be achieved by SAI? The SAI seeks to achieve ‘fairness’ in sports competitions by clubbing female athletes with <2ng/ml testosterone levels on the same category. SAI does this on the assumption that a testosterone level >2ng/ml will give an unfair advantage to a sportswoman. However, SAI at no point has proven that Dutee Chand’s testosterone level does in fact give her a competitive advantage over other sportswomen. Therefore, SAI has created two categories of athletes- one with testosterone range of <2ng/ml and one which has Dutee Chand in it with a testosterone range of >2ng/ml, without actually verifying that the objective behind this differentiation (i.e. fairness) is actually achieved. This is a clear violation of Article 14 of the Constitution as female athletes have been separated into two categories without assuring that the object sought to be achieved through this differentiation is achieved.

Conclusion:

The media coverage of the Female Hyperandrogenism test conducted by the SAI on Dutee Chand has hitherto, focused on two strains. The first, that of the State of Odisha which is feeling betrayed by the Centre because of Dutee Chand’s exclusion from the Commonwealth Games.[xiii] As told by the State of Odisha, it sounds like the familiar story of the Centre slighting a smaller State that has added to national honor by producing an excellent athlete such as Dutee Chand.[xiv] The second strain is that of SAI that has medicalized the entire issue and has stated that Dutee Chand would be eligible to compete once she gets ‘medical help’[xv] and lowers her testosterone levels so as to fit them within the testosterone range mentioned in the Indian SOP.

To be sure, Dutee Chand is feeling the burden of this political and medical strain on her as she has been reported as saying, “I am sad. Had the medical tests been conducted earlier, I could have got myself cured and participated in the Commonwealth Games at Glasgow.”[xvi] What is missing from the discourse, however, is any discussion on the rights of Dutee Chand as an athlete and a citizen. SAI has not only chosen a moment to test Dutee Chand which reeks of gender stereotyping but has also within its own system of testing female athletes, failed to adhere to international standards. By doing so, SAI has also violated the constitutional rights of Dutee Chand available to her under Article 14 of the Indian Constitution.

It is time that SAI begins to see that the world of athletics is not comprised of custom made bodies of perfectly identical athletes. More importantly, it is time that the conversation surrounding this test begins to focus on Dutee Chand. This conversation is not only about national honor or the state of medicine; it is about the Constitutional rights of a person who is now under the very palpable fear that her career may suffer a setback.

[Surabhi Shukla is Assistant Professor of Law, Jindal Global Law School; Anubha Singh works with Jagori, New Delhi]

[i] The title of this piece is inspired by Shaggy’s song, “Strength of a Woman”

[ii] The Times of India, 20th July, 2014.

[iii]Clause 3. 4, Standard Operative Procedure to Identify Circumstances (Female Hyperandrogenism) in Which a Particular Sports Person Will Not be Eligible to Participate in Competitions in the Female Category. Found at http://pib.nic.in/newsite/erelease.aspx?relid=94015.

[iv]Standard Operative Procedure to Identify Circumstances (Female Hyperandrogenism) in Which a Particular Sports Person Will Not be Eligible to Participate in Competitions in the Female Category.Found at http://pib.nic.in/newsite/erelease.aspx?relid=94015.

[v]Clause 1.3, Standard Operative Procedure to Identify Circumstances (Female Hyperandrogenism) in Which a Particular Sports Person Will Not be Eligible to Participate in Competitions in the Female Category. Found at http://pib.nic.in/newsite/erelease.aspx?relid=94015.

[vi]Clause 2.2, Standard Operative Procedure to Identify Circumstances (Female Hyperandrogenism) in Which a Particular Sports Person Will Not be Eligible to Participate in Competitions in the Female Category.Found at http://pib.nic.in/newsite/erelease.aspx?relid=94015.

[vii] Minati Singha, “Dutee Chand Faces Gender Hurdle”, THE TIMES OF INDIA, 15th July, 2014.

[viii] Manu Joesph, “The Definition of a Female Athlete”

[ix]Id.

[x] Clause 3.4, Standard Operative Procedure to Identify Circumstances (Female Hyperandrogenism) in Which a Particular Sports Person Will Not be Eligible to Participate in Competitions in the Female Category.Found at http://pib.nic.in/newsite/erelease.aspx?relid=94015.

[xi]Page 3, Hyperandrogenism Regulations- Explanatory Notes, May, 2011.

[xii]Shivani Naik, “Denied place in CWG women’s squad, she says: Main bachpan se aisi hi hoon” INDIAN EXPRESS, 18th July, 2014. See also,

 

[xiii]“Orissa State Government Seeks Sports Authority of India Response”, THE TIMES OF INDIA, July 20th, 2014.

[xiv]Id.

[xv] The Week, 22nd July, 2014.

[xvi]“‘Sad’ Dutee Chand wishes test was done earlier”, Found at OdishaSunTimes. com, 17th July, 2014.

7 thoughts on “Strength Of A Woman? Surabhi Shukla and Anubha Singh”

  1. Interestingly, the Supreme Court in Anuj Garg did hold that a classification based on stereotypical and outmoded assumptions about the role and place of women in society would be unconstitutional under Article 15(1) [discrimination on the basis of sex]. It took the argument directly from the four-decades old American sex discrimination jurisprudence. I wrote a post analysing that aspect here: http://indconlawphil.wordpress.com/2014/02/20/grounding-a-progressive-jurisprudence-of-sex-equality-anuj-garg-v-hotel-association/ – might be helpful.

    1. Certainly. The need of the hour is to mainstream the logic in anuj garg and Price Waterhouse v. Hopkins that classification rooted in a gender stereotype is unconstitutional on the grounds of equality. The adoption of this very line of reasoning privides for a rights based constitutional argument in Dutee Chand’s case.

  2. The paradigm of our political system is an innocuous array developed to assist every such solitary incidence. But unfortunately our own officers sitting at important positions, who behold power to question the international authorities, lacks the paucity of enthusiasm and attentiveness to outreach and combat for our very own countrymen. Even the logic in Price Waterhouse V. Hopkins classification roots on gender stereotype which is unconstitutional in regards to equality. And I bet, if this article is taken in consideration, the Indian court would have substantial grounds to impart justice to Ms. Chand’s strive.This article is indeed a very submerged and critically written. I would like to congratulate as well as thank both the writers for raising their voice for this cause. I stand with you. :)

  3. दूती चाँद जैसे बेहतरीन युवा एथलिट को जो मुफलिसी में पल बढ़ कर भी भारत का नाम ट्रैक एंड फील्ड जैसे क्षेत्र में रौशन करना चाहती है जो हम सब देशवासियों के लिए गर्व और अनुकरणीय योग्य होना चाहिए था के बजाय स्पोर्ट्स अथॉरिटी के तुगलकी फैसलों से दो चार होना पड़ता है। समझ में नहीं आता की दूती चाँद की जिजीविषा और लगन को और बढ़ावा देने के बजाय स्पोर्ट्स अथॉरिटी ने उन्हें कामनवेल्थ खेल से कैसे बहिस्कृत किया।
    यह न सिर्फ मानवाधिकार का उल्लंघन है बजाय एक महिला के मानसिक -सामाजिक उत्पीरण का भी प्रथम दृष्टया मामला है।
    अनुभा सिंह और सुरभि शुक्ल जी को साधुवाद एक ऐसे मुद्दे को चुनने और उसे आम लोगों तक लाने के लिए। उम्मीद है सुप्रीम कोर्ट और अंतर राष्ट्रीय खेल परिसंघ इस बेहतरीन आर्टिकल का संज्ञान लेकर दूती चाँद को इंसाफ दिलाये।

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