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“Dignified” Semenya’s fight with IAAF marks the point where science, law and sport collide

“Dignified” Semenya’s fight with IAAF marks the point where science, law and sport collide

Whenever South African athletics sensation Caster Semenya has faced a battle in her career, she has usually won - a list of sporting honours as long as your arm and a stream of beaten rivals is testament to that. But the longest running of all her battles has also been the most deeply personal: the struggle to prove that she belongs in the field of women’s athletics.

Over the decade she has spent as a prominent fixture in women’s middle-distance running, Semenya has faced repeated questions about her sex, accusations of an unfair advantage over other female athletes, and has even been forced to partake in sex verification tests.

The CAS proceedings

This battle has taken a dramatic twist recently, with Semenya’s latest dispute with the International Association of Athletics Federations (IAAF) having been played out at the Court of Arbitration for Sport. The IAAF had attempted to introduce new regulations to apply to female athletes with XY chromosomes and levels of testosterone that were significantly higher than the normal female range, leading to a “material androgenizing effect”. In certain circumstances, these athletes would be required to artificially reduce their testosterone levels to below a certain maximum level, and to maintain that reduced level for 6 months, in order to be eligible to compete in certain events.

Semenya sought a declaration from CAS that the regulations were unlawful, on the basis that they were unfairly discriminatory against athletes (on the basis of sex and/or gender), arbitrary and disproportionate. The IAAF, for their part, submitted that the Regulations were necessary, reasonable and a proportionate means of pursuing the legitimate aim of safeguarding fair competition.

CAS rejected Semenya’s case, and, whilst the full 165 page award will remain confidential, an executive summary of their reasons for doing so was published. In an uncharacteristically philosophical release that wrestled with the issues of sex, gender and identity which have become such a powerful part of society’s wider discourse over the last few years, the panel of three arbitrators admitted that it “ha[d] not found the issues in this case easy to decide”.

As a preliminary point, it was held unanimously that the regulations were, on the face of it, discriminatory: by applying only to female athletes, they discriminated on grounds of legal sex; and by applying only to female athletes with XY chromosomes and accompanying androgenising effects, they discriminated on grounds of innate biological characteristics.

The greater debate was whether or not that discrimination was a necessary, reasonable and proportionate means of attaining a legitimate objective. The panel couldn’t find unanimity here, and its findings were on a majority basis (ie. a two to one vote of the arbitrators). It was held that the distinction between male and female athletes in a sporting context was based on biology, rather than their legal status or how they identified, and that endogenous testosterone was the primary driver in the differing sports performance of males and females. On that basis, the elevated testosterone levels of certain female athletes gave them a “significant and often determinative” advantage over their peers, making the IAAF’s regulations necessary to maintain fair competition in female athletics.

The majority of the panel also held that the measures athletes such as Semenya were being asked to take were reasonable and proportionate: there would be no need for any surgical intervention, and the testosterone could be controlled using ordinary oral contraception (although it was accepted that this would involve side effects). However, the panel did highlight its serious concerns as to whether the regulations were capable of being applied in practice, due to the difficulty athletes would have with consistently ensuring they remained below the testosterone threshold.

The panel summed up the issues at play when they said that “[t]he imperfect alignment between nature, law and identity is what gives rise to the conundrum at the heart of this case”. Ultimately, they found that the discriminatory measures were necessary, reasonable and proportionate. The stage was set for the regulations to come into force, leaving Semenya with the choice of either artificially lowering her testosterone, or no longer being able to compete in the sport which had been her life for so long.

The appeal

However, Semenya appealed the award to the Swiss Federal Tribunal, which wasted no time in taking action. On 4 June, it “super-provisionally” instructed the IAAF to suspend the regulations, to allow a decision to be made by the Swiss Federal Supreme Courts on provisional measures (which could take some time). The IAAF has until 25 June to respond to the court on Semenya’s case, and has said that it intends to seek a “swift reversal” of the temporary suspension. In the meantime, Semenya can compete without taking medication, and she has been named in South Africa's preliminary squad for this autumn’s World Championships.

Thus an unedifying legal spectacle rumbles on, with no easy outcome and no winners in sight. On one side, a governing body which is wrestling with the difference between biology and identity, and which must try to maintain competitive fairness whilst also respecting the rights and feelings of individual athletes. On the other, a world class athlete who has fought all her life to be allowed to simply race as herself.

In the final paragraphs of its executive summary, the CAS panel took the unusual step of praising Ms. Semenya for her “grace and fortitude throughout this process”, noting that she had done nothing wrong and did not warrant any personal criticism. It is to be hoped that, whatever the eventual outcome of the dispute, the courts and the IAAF manage to show similar grace in dealing with this delicate, difficult issue, which could have wider repercussions on the future categorisation of male and female sport.

By Roddy Cairns,
Solicitor

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