The World Anti-Doping Agency (WADA) and international sport federations (IFs) may be violating data protection laws by using doping control data to administer sex-based eligibility regulations that target intersex and trans women athletes.
This is according to research from Marcus Mazzucco, an adjunct lecturer in the Faculty of Kinesiology and Physical Education (KPE) at the University of Toronto (UofT), who specializes in sports law, and Jensen Brehaut, a recent KPE graduate, who will be attending Osgoode Hall Law School in the fall.
“Sex-based eligibility regulations require intersex and trans women athletes to maintain their testosterone levels below certain thresholds in order to participate in international competitions or set world records,” says Mazzucco. “The supposed objective of these eligibility regulations is to ensure fairness in the female competition category due to beliefs that intersex and trans women athletes have testosterone levels that provide them with a performance advantage over other female athletes.
“However, the testosterone thresholds in the regulations are not based on scientific evidence or consensus.”
The researchers say at least nine IFs, including World Athletics and World Aquatics, have such eligibility regulations, and additional IFs are expected to introduce similar regulations in the near future. To monitor compliance with the testosterone thresholds in the eligibility regulations, IFs use testosterone-level data obtained for anti-doping purposes.
The use of doping control data to administer sex-based eligibility regulations is made possible by provisions in WADA's World Anti-Doping Code and WADA's Anti-Doping Administration Management System (ADAMS), a web-based database managed by WADA in Canada that contains results from doping control tests and is accessible by anti-doping organizations, including IFs.
“When an IF accesses an athlete's doping control data in ADAMS, there is a disclosure of that data by WADA to the IF that is regulated by Canada's Personal Information Protection and Electronic Documents Act (PIPEDA),” says Mazzucco, “The IF's use of the doping control data is also regulated under data protection laws outside of Canada such as the European Union (EU)'s General Data Protection Regulation (GDPR).
“If the use of personal data to administer these eligibility regulations violates data protection laws, then athletes will be able to legally challenge the regulations on this basis,” says Mazzucco.
Jensen adds that the 2024 Olympic Games in Paris are further testament to why such legal strategies may be necessary. “Top sprinters like Christine Mboma (from Namibia) and Maxine Imali (from Kenya) have been effectively sidelined by World Athletics' eligibility regulations due to their naturally occurring testosterone levels and will not be competing in Paris,” he says. “Other athletes will similarly be affected by these types of eligibility regulations until they are successfully challenged.”
Mazzucco and Brehaut have filed a privacy complaint against WADA with Canada's Privacy Commissioner, and are awaiting the outcome of that process. In addition, they have proposed changes to the World Anti-Doping Code through WADA’s formal consultation process for the 2027 version of the Code. The proposed changes, if accepted, would prohibit the use of doping control data to administer sex-based eligibility regulations.
“Finally,” says Mazzucco, “we are sharing our research with lawyers and athlete advocacy organizations so they can consider filing similar privacy complaints against IFs with EU privacy regulators.”