The Court of Arbitration for Sport on Wednesday ruled against South African runner Caster Semenya, wholost her court challenge against International Association of Athletics Federations rules forcing female athletes to regulate their testosterone levels.

What’s the case about?

World and double Olympic champion Semenya had challenged the IAAF ruling seeking to force so-called “hyperandrogenic” athletes or those with “Differences of Sexual Development” to seek treatment to lower their testosterone.

The controversial measures would force athletes with DSD to take drugs to lower their testosterone levels below a prescribed amount if they wish to continue competing.

As explained here:

 “The case centred on the legality of a 2018 IAAF eligibility regulation for women with differences of sex development (intersex women), defined by the IAAF as women who have testosterone levels of over five nanomoles per litre of blood (nmol/l) and whose bodies can ostensibly use that testosterone better than other women can. Under these rules, women athletes with differences of sex development would have to reduce, and maintain, their testosterone levels to 5nmol/l or less in order to compete. The reasoning behind the regulation is that women with naturally high testosterone levels, and whose bodies are apparently highly sensitive to that testosterone, have a significant performance advantage over their peers in certain events.”   

The world athletics’ governing body has argued that the moves are necessary to create a “level playing field” for other female athletes.

Semenya is not the only athlete potentially affected by the new rules – the two athletes who finished behind her in the Rio Olympics 800m, Francine Niyonsaba of Burundi and Kenya’s Margaret Wambui, have also faced questions about their testosterone levels.

Why is the case important?

The decision by the Court of Arbitration for Sport means that women with elevated testosterone will have to take suppressive treatment if they wish to compete as females in certain events.

The verdict triggered emotional reactions following a charged legal battle over increasingly complex questions of gender, which are likely to have far-reaching consequences for the future of women’s sport.

The Semenya vs IAAF case mattered because it is fundamentally about all women’s rights to participate in sport. If we do begin to regulate the participation of women with differences of sex development, then it will in effect stigmatise women athletes by categorising, labelling, and excluding them without scientific evidence or ethical consideration. Women should be allowed to compete with women, period. Otherwise we’re starting to talk about genetic superiority with no basis in truth, or humanity.  

More about that here.

Verdict and immediate reaction

In a 2-1 decision, CAS judges dismissed Semenya’s appeal against measures imposed by the IAAF for hyperandrogenic athletes – or those with DSD.

The judges said that although the rules are “discriminatory...such discrimination is a necessary, reasonable and proportionate means of achieving the IAAF’s aim of preserving the integrity of female athletics in the Restricted Events.”

In a statement issued by her lawyers, the 28-year-old double Olympic champion Semenya said that “for a decade the IAAF has tried to slow me down.”

“But this has actually made me stronger. The decision of the CAS will not hold me back. I will once again rise above and continue to inspire young women and athletes in South Africa and around the world.”

The IAAF said it was “grateful” for the verdict and that the DSD rules – first adopted last year but suspended pending the legal battle – will come into affect on May 8.

While the court said there was insufficient evidence to overturn the regulations, it “expressed some serious concerns as to the future practical application of these DSD Regulations.”

The rules must remain a “living document,” which are revised based on new information, the court added.

Judges specifically raised the issue of “unintentional non-compliance,” given the difficulty of maintaining artificial testosterone levels, and possible side-effects of mandated hormone treatment.

And the court suggested the rules should not be applied to longer events like the 1500 metres because there was insufficient evidence to indicate that hyperandrogenic athletes had an advantage.

The testosterone rules will however apply to the 800 metre race, an event Semenya has dominated over the last decade.

In order to defend her title at the world championships in September, Semenya will have to take medication, likely including birth control pills.

Support from United Nations

The verdict is certain to cause controversy. Semeneya’s cause earned widespread support, including from fellow athletes, the United Nations and scientific experts who argue that testosterone is an arbitrary and unfair measure for determining gender.

In a rare intrusion into the world of sport, the United Nations Human Rights Council adopted a resolution last month branding the IAAF rules “unnecessary, humiliating and harmful”.

With unanimous support from the council’s 47 member-states representing every continent, the resolution marked a stunning rebuke for the IAAF.

Why is the decision controversial

Barring her from competition due to naturally high testosterone levels would be like excluding basketball players because they are too tall, experts had said, disputing the test.

Having unusually elevated levels of the hormone – known to boost muscle strength and bone mass – is not enough to make a world-class athlete like double Olympic champion Semenya, who has dominated the women’s 800 metres over the last decade, they argued.

“To become a great athlete requires at least 10,000 hours of training, focus, discipline, timing, coaching, equipment, and strategy,” lead author Cara Tannenbaum, scientific director of the Institute of Gender and Health at the Canadian Institutes of Health Research, had told AFP. “It would be unscientific to make decisions on exclusion for men or women based on a single genetic factor alone.”

In non-athletes, testosterone concentrations typically range between 9 and 31 nmol/L for boys and men, and from 0.4 to 2 nmol/L in girls and women, Tannenbaum noted.

But at least one study of elite track and field athletes tested after competition showed a far smaller gap – and even some overlap – between women and men, she pointed out. For this and other reasons, setting a limit of 5 nmol/L was “arbitrary” and discriminatory, she wrote in the BMJ, a medical journal.

The IAAF had responded to the delay by saying it was introducing a provision allowing those who “respect the limit of 5 nmol/L, as of the week following the publication of the decision” to be eligible for the athletics World Championships which start in Doha on September 28.

Seema Patel, a senior lecturer in law at Nottingham Law School, criticised the CAS ruling for green-lighting “unethical medical procedures.”

“A female who has naturally higher levels of testosterone in her body should not be prohibited from competing with women, just as a female who is naturally taller than the average woman should not be prohibited,” Patel said in a statement.

A nation behind her

But her most fervent support has come from her native South Africa, where the government has accused the IAAF of seeking to violate women’s bodies.

Wayde van Niekerk has backed her fellow Olympic gold medallist, saying “it goes beyond track and field”.

The Olympic 400-metre champion told reporters on the sidelines of the South African championships near Johannesburg that Semenya “is fighting for something” far greater.

South African fans of Semenya expressed shock and disappointment after their star athlete lost the verdict.

“We are bitterly disappointed,” said Bathabile Dlamini, the minister for women.

“This is a disappointing judgement, it actually removes Caster Semenya’s agency as person, as an athlete, as a person who trains hard,” Dlamini said. “As the department of women we are particularly angered (that) we are expected to conform to western notions ...for our athletes to compete”.

She said Semenya was being targeted because “she is so successful through her hard training and her dedication”.

“It’s a violation of her rights as a woman, the violation of her rights as human being”.

Sports Minister Tokozile Xasa said the “regulations trample on the human rights and dignity” of the 28 year-old who was named one of Time Magazine’s 100 most influential people of 2019.

The ruling African National Congress said it was “appalled” by the court decision.

“It is rather disheartening to learn that the Court has ruled against Caster Semenya in her fight to be treated equally and without prejudice,” it said in a statement.

It accused the IAAF of “acting in a prejudicial manner that divides rather than unites athletes.”

“Shocked” by the decision, the main opposition Democratic Alliance party called on the government and sporting federations to “use all available processes to oppose this decision and fight for her right to compete on the international stage without having to take any drugs to suppress what she was naturally born to do”.

Among others, tennis great Billie Jean King voiced her displeasure.

What next?

Semenya’s testosterone levels are not publicly known, but she is unlikely to be the only athlete affected by rules compelling female runners in certain categories to cap their testosterone levels at five nanomoles per litre (nmol/L) of blood.

The two athletes who finished behind her in the Rio Olympics 800m, Francine Niyonsaba of Burundi and Kenya’s Margaret Wambui, have also faced questions about their testosterone levels.

Semenya is weighing an appeal, her statement said. Such a challenge needs to be filed at the Swiss Federal Tribunal within 30 days.

With inputs from AFP