MOST Jamaicans should be very familiar with the controversies surrounding performance-enhancing drugs in sports, which was brought into focus with the disqualification of sprinter Ben Johnson after he won the 1988 Olympic 100m final.

Although the International Olympic Committee (IOC) banned performance-enhancing drugs in 1967, there had been systematic doping — particularly by the East German Olympic teams — during the 1970s and 80s.

Since then, the International Association of Athletics Federations (IAAF) has contended that athletes require a ‘level playing field’ for competition, and so systematic drug-testing of athletes has been the norm at athletic competitions.

However, with the advent of South African female runner Caster Semenya, the other side of the issue has come into the limelight. Semenya has been found to have hyperandrogenism — a hormonal condition in which the female body naturally produces high levels of male hormones, such as testosterone, much higher than what would be expected in women.

The matter of sex and gender

A person’s sex is normally assigned by the physical appearance of the genitals at birth, while gender is a societal concept that involves socialisation as a boy or girl. Semenya was identified as a woman from birth, as she had no obvious penis or testicles. However, anatomically, she reportedly has no womb or ovaries internally, and instead has internal testes because of a chromosomal abnormality at conception.

After winning gold in the 2009 World Championship by beating her prior best time by four seconds, Semenya was subjected to gender testing.

The IAAF now believes that hyperandrogenic athletes should not compete unless they curb their naturally high testosterone levels. However, some female athletes contend that their high levels of testosterone are entirely natural, and so such an IAAF rule discriminates against women.

The double Olympic champion challenged the new IAAF rules which sought to restrict testosterone levels in female runners. However, Semenya lost her appeal by a 2-1 margin at the Court of Arbitration for Sports, which said de facto that athletes with differences of sexual development (DSD) must now take medication to suppress their testosterone to compete in some track events or change to another distance.

Court’s ruling

The court agreed that the IAAF’s regulations on differences of sexual development were discriminatory, but that, on the basis of the evidence submitted by the parties, the discrimination was a necessary, reasonable and proportionate means of achieving the IAAF’s aim of preserving the integrity of female athletics in the restricted events.

Semenya would, therefore, have to either take medication in order to compete at track events from 400m to one mile, or switch to another distance. However, the ruling came into effect on May 8, 2019, and an application was made to the Federal Supreme Court of Switzerland, which has temporarily suspended the IAAF’s regulations for female athletes until it hears the arguments in the case. The IAAF has until June 25 to respond to Semenya’s application.

The Swiss Court will then make a separate ruling once the IAAF has made submissions regarding why its regulations should be kept in place.

We know that performance-enhancing drugs have long been considered unethical, but we are now challenged by the ‘flip side’ — aren’t performance-reducing drugs also unethical? Is the IAAF using a double standard in forbidding the use of performance-enhancing drugs, while encouraging the use of performance-reducing drugs?

Ethical arguments

The World Medical Association (WMA) has attacked the IAAF’s directive, pointing out that there is nothing medically wrong with Semenya, and so forcing her to take any form of drugs is contrary to medical ethics. It argued that medical treatment is only justified when there is a medical need. The mere existence of an inter-sex condition, without such a person indicating that they are suffering and expressing the desire for an adequate medical treatment, does not constitute a medical indication for treatment.

The WMA argues that the days are gone when doctors or the society would determine which gender a person should have. It is the ethical duty of doctors to respect the dignity and integrity of all individuals, whether they are female, male, inter-sex, or transgender. So treatment with medication for the sole purpose of altering performance in sport is not ethically permissible.

Another ethical critique is that the use of performance-reducing drugs is a form of experimental medicine. This critique quotes the Helsinki Declaration on ethical principles for medical research involving human subjects, and says: ‘Unproven interventions are acceptable only to save life, re-establish health, or alleviate suffering.”

The interventions required by the IAAF do not fall under any of these categories, and so are arguably unacceptable. Further, to use such unproven interventions would turn otherwise healthy individuals into patients.

The Helsinki Declaration further states that unproven intervention must be accompanied by informed consent from the patient, and the intervention must be studied to evaluate their safety and effectiveness. In addition, medical research involving human participants must be clearly described as such, and be justified using an acceptable research protocol, and such studies must first be approved by an independent research ethics committee.

The IAAF has followed none of these provisions in requiring hyperandrogenic athletes to take performance-reducing drugs.

How do you think the Federal Supreme Court of Switzerland should rule?

Dr Derrick Aarons MD, PhD, is a consultant bioethicist and family physician; a specialist in ethical issues in health care, research, and the life sciences; the health registrar and head of the health secretariat for the Turks and Caicos Islands, and a member of UNESCO’s International Bioethics Committee (IBC).