By Abdul Tejan-Cole
Mokgadi Caster Semenya is a woman and she should be allowed to compete as one. Period! This is where this story should end. But sadly it doesn’t.
On May 1st this year, the Court of Arbitration for Sport (CAS), a quasi-judicial body that settles sports disputes through arbitration or mediation, upheld the International Association of Athletics Federations’ (IAAF) controversial differences of sex development (DSD) regulations, which require women with naturally high testosterone levels to take medication to limit them, if they wish to continue competing.
The regulations provide that a female athlete can only participate in an international event if she is recognized by law as female or intersex, and her blood testosterone level must be below 5 nanomol per litre. If it is not, the female athlete must reduce her blood testosterone level by taking testosterone suppressants for a continuous period of at least six months. The rule applies only to races from 400m to 1500m. The regulations are narrowly constructed and focus only on athletes with a rare chromosomal makeup.
CAS did not publish its full ruling. In a media release, it stated that “(T)he full award with reasons remains confidential for the moment but an executive summary will be published by the CAS shortly.” The media release states that “the CAS Panel has dismissed the requests for arbitration considering that the Claimants were unable to establish that the DSD Regulations (‘IAAF Eligibility Regulations for Female Classification (Athletes with Differences of Sex Development)’ 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 release also noted that in the confidential 165-page award, “the CAS Panel expressed some serious concerns as to the future practical application of these DSD Regulations.”
In effect, these new regulations prevent the South African athlete from defending her gold medal in the women's 800m and bronze medal in the 1500 meters won at the 2017 World Championships in London, or her Summer Olympics 800 meters gold won in 2012 and 2016 in London and Rio de Janeiro respectively. Semenya has said she will not take medication but has also said she hopes to defend her 800m at the world championships in Doha, which start on September 27, 2019.
This was but another stage of a saga that is yet incomplete. It started on the first day Semenya appeared on the international scene in 2008. Tongues started wagging because of “her broad shoulders, her wide jaw line, and her firm chest”. It was first alleged that she was not a woman. She had to undergo a sex verification test. The results were never officially published. Leaked reports suggested that all the IAAF found was that her body produces more testosterone than some other women she competes against. Throughout the period of waiting for the gender test results, Semenya was banned from competing. She was only cleared to return in July 2010.
The latest CAS ruling will not be the end of this case. As CAS noted, its ruling “may be appealed at the Swiss Federal Tribunal within 30 days.” Supporters of the IAAF regulations say it is about fairness. According to IAAF president, Sebastian Coe, the ruling is not about policing the definition of what a woman is, but rather “about levelling the playing field to ensure fair and meaningful competition in the sport of athletics where success is determined by talent, dedication and hard work rather than other contributing factors.”
They claim that the rules are "in no way intended as any kind of judgement on or questioning of the sex or the gender identity of any athlete". Some athletes including British middle distance runner, Lynsey Sharp, had called for a change of the rules.
But the IAAF regulations are extremely problematic, hypocritical and, as CAS pointed out, discriminatory. There is no cogent basis for such discrimination and the excuse that the discrimination is necessary is baseless, painful and peculiar. Many have called the IAAF’s rules “racist” and “sexist.” The regulations are dehumanizing and clearly a blatant infringement of Semenya’s human dignity, autonomy and her fundamental right to privacy. They violate the laws in many jurisdictions which prohibit discrimination based on sex.
No wonder UNWomen, the leading United Nations agency championing gender equality, expressed its strong concern over the CAS decision and stated that it contravenes the international human rights norms and standards expressed in the United Nations Human Rights Council’s resolution of March 2019 on the “Elimination of Discrimination against Women and Girls in Sport". The UNWomen statement titled “(R)unning in the face of discrimination” further notes “(T)he requirement for such athletes to medically reduce hormone levels in order to compete as women plays into a discriminatory and stereotyped equivalence between testosterone, masculinity, strength and achievement that has been challenged by medical doctors, human rights, and intersex advocates, with the scientific basis questioned. The proposed method of reduction and verification requires athletes to take additional hormones with potential negative side effects. This process can result in further human rights violations, just as previous invasive testing to determine the sex of female athletes has done. This constitutes a dark chapter in the history of sport that should close for good.”
The World Medical Association has also urged doctors not to enforce the controversial new IAAF rules. Its chairman, Frank Ulrich Montgomery, is quoted as saying “No physician can be forced to administer these drugs, and we definitely urge our colleagues to refrain from giving hormonally active medication to athletes simply because some regulations demand it.”
Several noted scientists have also stated that it is difficult to measure the actual benefit of testosterone in athletes. Both males and females produce testosterone in a wide variety, with a significant percentage of females having higher levels of testosterone than many males.
The Canadian Centre for Ethics in Sports, which directs Canada’s anti-doping program, the Canadian Association for the Advancement of Women and Sports and Athletes, the association of Canadian national team athletes, condemned the CAS decision noting that “the continued preoccupation with establishing a standard of ‘femaleness’ is deeply offensive and harmful. It is at odds with our belief in the core value of inclusion and the rights of all women to participate fully in sport free from discrimination.” Athletics Canada has said it won’t implement the policy in Canada.
The IAAF does not regulate testosterone in men. In the interest of fairness or otherwise, there is no cogent reason for it to do in Semenya’s case. If there is no need to demand that basketball players who are taller should reduce their height surgically because they have an advantage over other basketball players who are shorter, then there is no need for Caster to take medication.
Many have also cited the case of the American Swimmer Michael Phelps. Phelps, who won 23 Olympic gold medals, is widely known to have had immense genetic advantages when he competed. “His double-jointedness that extends the range of motion of his ankles, knees and elbows; his disproportionately longer ‘wingspan’ measuring 203 cm from fingertip to fingertip compared to his 193 cm height” gave him a competitive advantage. Phelps also produces half the lactic acid of a typical athlete meaning his muscles fatigue at half the rate of common athletes. Phelps never had to take medication. Phelps is American, white and man. Semenya is African, black and a woman. So we celebrate Phelps and regulate Semenya.
Although the IAAF says it is not targeting Semenya, the new rules only apply to middle distance races that she participates in. It does not apply to other events such as shot put, pole vault or hammer, although the IAAF’s research purportedly shows testosterone provides a competitive advantage in these events. The IAAF regulation is biased and bigoted. It is important that Federations around the world follow the Canadian lead and refuse to implement it. The IAAF has no business policing what a woman should look like, be or how she performs.
Abdul Tejan-Cole was in a previous life the head of the Anti-Corruption Commission and Executive Director of Open Society Initiative in West Africa.
© 2019 Politico Online
