The use of doping control data to administer sex-based eligibility regulations: an analysis of how the World Anti-Doping Agency and international sport federations violate data protection laws

Abstract

The World Anti-Doping Agency (WADA)’s World Anti-Doping Code (WADC) provides that anti-doping organizations, such as international sport federations (IFs), may use data from a doping control test to monitor compliance with sex-based eligibility regulations that regulate the serum testosterone levels of transgender and intersex athletes. This contemplated use of doping control data has been incorporated into the regulations of several IFs and is facilitated by WADA’s Anti-Doping Administration Management System (ADAMS)—a web-based database managed by WADA in Canada that contains analytical results from doping control tests and is accessible by anti-doping organizations. WADA’s collection, use and disclosure of personal information through ADAMS is subject to Canada’s Personal Information Protection and Electronic Documents Act (PIPEDA). This paper examines WADA’s non-compliance with PIPEDA when it discloses doping control data in ADAMS to an IF for the purpose of the IF’s administration of sex-based eligibility regulations, and how a complaint about WADA’s data disclosures might be handled by Canada’s Privacy Commissioner. The paper also examines the application of the European Union’s General Data Protection Regulation to IFs that seek to use doping control data stored in or outside of ADAMS to administer sex-based eligibility regulations. The paper concludes with the perspective that data protection laws can be used to challenge the implementation of sex-based eligibility regulations, alongside other human rights-based legal strategies.