The Court of Arbitration (CAS) for Sport in Lausanne, Switzerland has ruled that the International Association of Athletics Federations (IAAF)’s proposed rules to force female athletes to “regulate” their testosterone, should be upheld.
While the court agreed that the regulations were “discriminatory”, their application was warranted.
In a statement released by the court, it noted:
By majority, the CAS Panel has dismissed the requests for arbitration considering that the Claimants were unable to establish that the DSD Regulations were “invalid”. The Panel found that the DSD Regulations are discriminatory but the majority of the Panel found that, on the basis of the evidence submitted by the parties, 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.
The court, however, noted that it has serious concerns over the ” future practical application of these DSD Regulations”.
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The ruling follows a court challenge by South Africa’s
Caster Semenya, the 800m world and Olympic champion.
The verdict was delivered by a panel of arbitrators on Wednesday, after a week-long hearing back in February.
The decision was initially expected at the end of March, but CAS announced that the ruling would be delayed to April, right before the start of the Diamond League season.
While the case has been high profile and the subject matter is complex, it’s vital to note that Semenya has never broken the world record in her preferred 800m distance.
Her personal best is only the fourth-fastest time ever run. It’s also never been confirmed what condition Semenya has or doesn’t have. Everything is pure speculation. The only thing we know for sure is that she is tough as hell.
How we got here: The IAAF’s history of policing women
The sport’s governing body has a long history of subjecting
female athletes to grotesque practices of “sex testing”.
Poland’s Stella Walsh, who competed in the 1930s, was forced to have her genitals examined to “confirm her gender”. After her death, an autopsy revealed that Walsh had chromosomal abnormalities. However, her birth certificate noted her as female and she lived her entire life identifying as such.
But that wasn’t the end of it. Towards the mid-1960s, the IAAF decided to introduce its own tests, asking women to undress and parade in front of “experts” so that these “experts” could decide whether or not the athlete in question “passed as female”.
Despite growing criticism, the governing body did not relent.
Until 1996, the IAAF’s pursuit to define womanhood rested on chromosome tests. When those were rendered obsolete, focus shifted to hormone testing..
The IAAF vs Semenya – it began in 2009
After Semenya won the 800m title at the 2009 World Championships in Athletics in Berlin, the IAAF began costly pursuit of, what they to this day call, “protecting women’s sport”.
Just 18-years old then, Semenya was banned from competing and later cleared by the IAAF, but only after a cruel public trial and crudely called “gender verification tests”.. The governing body, which has a duty of care to protect athletes, had no qualms with allowing the news to break just hours before a teenager’s first world championship.
Perhaps not surprising from an organisation who announced in 2006 that if a female athlete had “suspicion” about the “authenticity” of a fellow competitor they could institute a “challenge”, so that the athlete could be “examined”.
Two years later, the IAAF reignited their pursuit of trying to dictate what it means to be a woman, all in the name of a “level playing field” – forcing athletes to subscribe to their testosterone limits.
Female athletes were given a choice, often without completely understanding what they were being asked to do.
Reports claimed that four unnamed female athletes from developing countries underwent violent surgeries which involved female genital mutilation and sterilisation – all to ensure the IAAF get their “level playing field”.
Dutee Chand goes to CAS
Dutee Chand, an Indian sprinter, was the first to challenge the proposal in court. In 2015, she won her case at CAS with the court essentially telling the IAAF to come back with better evidence.
The IAAF were given repeated extensions until eventually, in 2018, it announced its new regulations.
Level playing field for who?
Despite being asked to present stronger evidence than
before, the IAAF’s proposed rules that landed them in court a second time were
being arbitrarily applied.
The IAAF’s own study listed hammer throw and pole vault as the events in which female athletes with elevated levels of testosterone had the greatest advantage (4.53%, and 2.94% respectively).
Yet, these events will not be subject to the same regulations. To that question, the IAAF said that the data gathered “over ten years” showed “elevated testosterone levels give athletes the biggest performance advantage in the events from 400m to 1 mile”. They vowed to “continue gathering and analysing evidence for other distances as well as jumps and throw”.
How these samples were obtained has never been clarified. It was previously reported that Semenya and other athletes never gave informed consent about the tests. One South African professor quit the IAAF committee he was serving on in protest of the proposed regulations.
How much of advantage is there?
The full scale of the science is complicated. Because artificial testosterone is a banned performance enhancer, logic might lead you to assume that higher levels of testosterone is a huge advantage, too. But it’s not that simple.
Not only is natural testosterone processed differently, but various other factors all lead to athletic excellence. In fact, as The Guardian reported, even the group of consultants who reached the consensus that allowed the IAAF to bring in a testosterone limit in the first place were in disagreement over its advantages.
Several academics including Roger Pielke, Erik Boye and Ross Tucker, have ripped apart the IAAF’s study and claim that 17-32% of the data was erroneous.
Balancing the fine line between so-called “fairness” and inclusivity is a minefield. While many often point to how genetic advantages like longer limbs and fast-twitch muscle fibres are celebrated, the distinction is that those are not defined categories in sport.
We’re then back to the question of what constitutes fair and who gets to decide on that definition? It’s a question nobody can answer.
Those for and against the IAAF’s proposed rules
Semenya’s cause has earned widespread support, including by a global coalition of nations and scientific experts who argue that testosterone is an arbitrary and unfair measure for determining gender.
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.
Tennis legend Martina Navratilova is also among the long list of international athletes who support the South African.
But there have been opponents, too. The loudest has been World marathon record-holder Paula Radcliffe who claimed that the ruling could signal “the death of women’s sport”.
What happens now
Semenya, whose testosterone levels are not publicly known, can either comply with the regulations or switch events to longer or shorter distances where the regulations do not apply. Or, she could appeal. Her social media message, however, indicates that she might be done with this fight.
However, there are bigger concerns.
The “living document” means the IAAF can chop and change the policy as they wish. Which, in theory, means that even if Semenya were to switch events, the regulations can be changed to include those events.
Indeed, CAS noted this as troubling issue.
The court noted three main concerns, stated as below from the media release:
- The difficulties of implementation of the DSD Regulations in the context of a maximum permitted level of testosterone. The Panel noted the strict liability aspect of the DSD Regulations and expressed its concern as to an athlete’s potential inability to remain in compliance with the DSD Regulations in periods of full compliance with treatment protocols, and, more specifically, the resulting consequences of unintentional non-compliance.
- The difficulty to rely on concrete evidence of actual (in contrast to theoretical) significant athletic advantage by a sufficient number of 46 XY DSD athletes in the 1500m and 1 mile events. The CAS Panel suggested that the IAAF consider deferring the application of the DSD Regulations to these events until more evidence is available.
- The side effects of hormonal treatment, experienced by individual athletes could, with further evidence, demonstrate the practical impossibility of compliance which could, in turn, lead to a different conclusion as to the proportionality of the DSD Regulations.
CAS’ was restrained in what it could and couldn’t decide. Its mandate was solely to determine whether the regulations were “invalid”.
The CAS Panel strongly encouraged the IAAF to address these concerns when implementing the DSD Regulations, bearing in mind that the DSD Regulations are a “living document”, as asserted by the IAAF itself.
The decision can be appealed at the Swiss Federal Tribunal within 30 days.