What the Caster Semenya court case means for the future of women’s sport

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Pip Cook
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Olympic gold medallist Caster Semenya has challenged the International Association of Athletics Federations’ (IAAF) rules for the regulation of female athletes. And, in the process, she has started a legal battle which has the power to change the future of women’s sport forever.

Caster Semenya, the double Olympic and three-times world 800m champion for South Africa, has asked the Court of Arbitration for Sport (CAS) to overturn the IAAF’s new eligibility rules for female athletes with high testosterone levels.

Under the new proposals, female athletes whose testosterone levels exceeded those accepted as ‘normal’ for women would have to reduce and maintain these levels for at least six months before competing. It’s widely accepted that the new regulations would have a hugely negative impact on the performance of Semenya and other athletes who, like her, have differences of sexual development (widely termed DSDs).

The case has the potential to be extremely sensitive and complicated, with other sporting governing bodies such as the International Olympic Committee (IOC) awaiting its outcome before announcing their own testosterone limits regarding transgender athletes in the 2020 Olympics in Tokyo.

So why has Semenya taken the IAAF to court this week, and what could a decision regarding one athlete mean for the future of women’s sport?

How did this case come about?

Semenya after her win at the World Championships in Berlin, 2009

Semenya has been diagnosed with an intersex condition, which means she has higher levels of testosterone than what is deemed ‘normal’ for women – a condition which is also known as hyperandrogenism. When she burst onto the international sports stage with her remarkable victory at the World Championships in Berlin in 2009, her success was marred by a nasty and invasive public debate about the then 18-year-old’s gender. Fellow athletes called her a man, publications branded her a transvestite and rumours that she was a hermaphrodite circulated all over the internet. As a result, the athlete was sidelined from competing whilst the IAAF looked into her testosterone levels.

Then, in 2011, the IAAF announced it was adopting new rules governing the eligibility of female athletes with hyperandrogenism – the association’s first attempt at regulating athletes’ hormones in a move viewed as a direct response to the controversy surrounding Semenya. The rules imposed an upper limit on women athletes’ testosterone levels, with anyone above the stated level required to take hormone suppressants to lower them to ‘normal’ levels before being allowed to compete. Any female athlete who declined to do so would not be eligible to take part in a women’s competition. The IAAF were keen to stress that females with hyperandrogenism who were females by law would still be eligible to compete, providing their testosterone levels had been sustained within the accepted range for a period of six months.

The rule was in place until 2015 when Indian sprinter Dutee Chand took the IAAF to CAS in 2015 and won her appeal. The lawyers for the 19-year-old Olympic sprinter argued that her exclusion on the basis of sex-verification tests, which primarily focused on her high levels of testosterone, were discriminatory due to the fact that these levels occurred naturally. Chand was cleared to run competitively, and CAS ruled that there was a lack of evidence to support the IAAF regulations regarding hyperandrogenism and suspended it for two years pending further research.

Chand (R) competing in the 100m heat in the Asian Athletics Championships, 2017

After spending two and a half years completing that research, the IAAF returned to Cas in 2018 with scientific evidence that suggested high levels of testosterone provide athletes with an advantage which is particularly significant on the track between 400 metres and one mile. The governing body, therefore, now wants CAS to rule that DSD athletes such as Semenya must reduce their testosterone levels to those deemed ‘normal’ for females before competing internationally as having higher levels gives them an advantage over fellow competitors. For affected athletes, this would yet again entail taking hormone suppression tablets similar to oral contraceptives. 

What would this new rule mean for Semenya?

After her ordeal in 2009, Semenya’s performance dropped off significantly. People close to the athlete claim she “went off the rails” after the vicious public reaction, falling out with her then coach, badly injuring herself and generally getting out of shape. And, although sources claim that there were a number of personal factors which contributed to her loss of form, it’s hard to argue that having to reduce her levels of testosterone didn’t have a huge impact on her sporting prowess. 

After the regulations around hyperandrogenism were suspended following Chand’s case Semanya’s performance improved dramatically, culminating in a victorious return to the international sporting stage in the 2016 Olympics in Rio. Since the restrictions were lifted the athlete has been widely regarded as unbeatable and it’s believed that a return to artificially suppressing her testosterone would have disastrous consequences for her performance. 

Semenya in the women’s 800m final in the 2016 Olympic Games, Rio

What have experts said about the IAAF’s study?

Speaking in 2018, world-renowned South African sports scientist Ross Tucker said that the IAAF’s study and evidence for their new policy are not good enough.

“There are some question marks around that study that the IAAF did around the statistics used and the method that they used. My own feeling is that it’s quite a weak study. Basically, they’re comparing high testosterone and low testosterone when we know that there are actually very small differences between those groups because women’s testosterone ranges are quite constrained with the exception of extreme outliers. So, I think the whole premise of the study was actually flawed to begin with.”

He added: “I would be very surprised if this new policy stands up to a legal challenge because I think if anything, it’s a little bit weaker than the one [Dutee Chand] that went before. Quite frankly, the science is not capable of providing an answer to this question in an ethical reasoned way and I think they probably have to abandon the premise.”

Why do people oppose the IAAF’s proposed rules?

One of the key arguments that will be given by Semenya’s lawyers this week is that forcing the athlete and those with similar conditions to reduce naturally occurring hormones would be both unhealthy and discriminatory. In a statement, they argued that the genetic difference of women with DSDs are “no different than other genetic variations that are celebrated in sport,” asking that Semenya be “respected and treated as any other athlete”. “Her genetic gift,” as her legal team call it, “should be celebrated, not discriminated against.”

This isn’t the first time that the issue of discrimination has come up in relation to Semenya’s case. The South African government has publicly supported the athlete’s legal battle, declaring the proposed testosterone limit for women as putting far more than their right to participate in sport at stake. In a speech in Pretoria on Friday, sports minister Tokozile Xasa claimed that the IAAF rules were questioning “women’s bodies, their wellbeing, their ability to earn a livelihood, their very identity, their privacy and sense of safety and belonging in the world.” Xasa also called the governing body’s proposals a “gross violation of International accepted standards of human rights law”, touching on events last year when the UN waded into the debate. In 2018, their Human Rights Special Procedures body urged the IAAF to drop their proposed regulations, claiming that forcing athletes to artificially suppress naturally occurring hormones “contravenes international human rights”.

In a statement last week, Semenya’s lawyers explained the significance of her case for all DSD athletes: “Her case is about the rights of women such as Ms Semenya who are born as women, reared and socialised as women, who have been legally recognised as women for their entire lives, who have always competed as women, and who should be permitted to compete in the female category without discrimination.” They accused the IAAF of suggesting that DSD athletes are not legally female – an extremely controversial charge that would undoubtedly cause uproar far beyond the world of competitive sport. 

Why do others support the IAAF? 

The IAAF is keen to stress that their proposals are not aimed at classifying DSD athletes as not female but that they accept their legal sex “without question.” The intention behind the IAAF’s proposed restrictions, it claims, is not to discriminate against athletes such as Semenya but to create “a level playing field” for all athletes competing in the female category. This issue of fairness lies at the heart of Semenya’s case.

Explaining their position in a recent statement, the IAAF said: “If a DSD athlete has testes and male levels of testosterone, they get the same increases in bone and muscle size and strength and increases in haemoglobin that a male gets when they go through puberty, which is what gives men such a performance advantage over women.

“Therefore, to preserve fair competition in the female category, it is necessary to require DSD athletes to reduce their testosterone down to female levels before they compete at international level.”

The findings produced by the governing body last year suggest that the testosterone levels of female DSD athletes, who are often born with testes, are typically within the adult male range. Dr Stéphane Bermon, head of the IAAF’s health and science department, argues that testosterone is the most important factor behind their being separate male and female categories in sport. In a 2017 paper for the British Journal of Sport Medicine, Bermon claimed that elite women runners with high testosterone levels performed as much as 3% better than those with lower levels - a level he describes as “similar to males”.

Bermon argues, therefore, that allowing DSD females to compete would negate the point of having separate male and female categories altogether as it would be equivalent to athletes of both genders running in direct competition against each other. His argument has been echoed by female athletes who have experienced running against women with DSDs. For example, the 2016 Olympic 800m final in Rio was won by Semenya while the silver and bronze medals were also taken by athletes whose testosterone levels had been previously subject to speculation. Speaking after the race, Britain’s Lynsey Sharp (who finished in sixth place) said “Everyone can see that it’s two separate races so there is nothing I can do.”

Canada’s Melissa Bishop (L) hugs Sharp (C) next to gold medallist Semenya after the Women’s 800m Final in the 2016 Olympic Games, Rio

A question of sport or science?

Semenya’s lawyers will argue that the natural advantages she derives from having DSD are no different to those enjoyed by other athletes. Indeed, the significance of the effects of testosterone on athletes has been widely questioned. For example, Bermon’s 2017 paper was heavily criticised by academics who claimed a large proportion of his data was unfounded. The speculation surrounding the IAAF’s research will undoubtedly weaken their case against her and other athletes with DSDs.

But other figures from the world of sports science have supported the IAAF’s proposals. Joanna Harper – a medical physicist who was born male but later transitioned and now advises the IOC on model regulations for transgender athletes – supports their proposals, detailing her experiences and explaining that “if you’re competing in the women’s division, you should do so with women’s hormone levels. I understand just how much difference they make.”

Wesley Botton, a senior sportswriter, sums up a general feeling regarding Semenyan’s case which is prevalent in the sporting world. “You want to support Caster but there’s always this niggling thought,” says Botton, “Is it fair for her to run?” 

What will the trial mean for women’s sport?

In a statement last week, the IAAF’s lawyer Jonathan Taylor claimed that if CAS ruled against the IAAF and failed to permit them “to require athletes of female legal sex who have testes and consequently male levels of testosterone to reduce those levels” then the outlook for female sport would be bleak.

In the statement, Taylor said: “DSD and transgender athletes will dominate the podiums and prize money in sport, and women with normal female testosterone levels will not have any chance to win.”

Although Semenya’s lawyers immediately hit back at his comments, in which he seemed to misguidedly group DSD and transgender athletes together, it’s undeniable that the court’s ruling on DSD athletes will have lasting consequences for women’s sport that bare some comparison to those posed by the transgender debate.

Speaking personally, Bermon predicts that a third category in sport might be a solution to the debate, and that such a change could happen “probably in five or 10 years.” Others may suggest that categorisation based on legal gender is no longer enough, and that there could soon be a high-testosterone category and a low-testosterone category, or maybe even categorisations based on height or weight rather than sex.

An uncertain future…

Semenya and her lawyers arrive at CAS in Lausanne, Switzerland on Monday

The court’s ruling will be announced next month. If CAS rules in favour of the IAAF, Semenya will have to artificially reduce and maintain her testosterone levels before competing internationally in events ranging from 400 metres to a mile. If it rules against the IAAF, the South African athlete will be allowed to continue competing in female events unrestricted.

However, the case goes far beyond that of an individual athlete against a single set of regulations, and beyond even the fate of all athletes with DSDs, no matter what the outcome. CAS’s ruling is likely to spark fresh debate regarding the ongoing discussion of how we as a society identify gender more generally, and it is likely that the impact of Semenya’s case on the world of female sport will be felt in many other areas of modern life where questions regarding gender are becoming increasingly critical. 

Images: Getty


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