How the IAAF decided Semenya isn’t allowed to be the way she was born
The testosterone ruling - described as a 'necessary discrimination' - could ruin the careers of intersex athletes
Double Olympic gold champion and SA track sweetheart Caster Semenya suffered a body blow on Wednesday when the Court of Arbitration for Sport (CAS) handed down a crushing judgment that could ruin the careers of women athletes with male chromosomes.
Even though the panel of three judges admitted the new regulations are “discriminatory”, it added that “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 ruling was not unanimous and is a “living document”, which means the IAAF can alter it to include more track events.
The 165-page ruling effectively means Semenya and other intersex athletes with male chromosomes will have to take medication to lower their testosterone levels if they wish to compete as women. Female athletes who have high natural levels of testosterone will have to reduce their levels through medication to under five nanomoles a litre, which is double the normal female range of 2nmol/L.
Such athletes hoping to take part in the World Championships in Doha in September would have to start taking medication to lower their testosterone levels within one week.
The CAS ruled that the regulations were needed to ensure fair competition between athletes who compete in events ranging from 400m to a mile.
Testosterone is a hormone that increases muscle mass, strength and haemoglobin, which affects endurance.
The IAAF said it was “grateful” for the ruling and insisted the rules were essential to preserve a level playing field and ensure that all female athletes could see “a path to success”. The regulations were necessary to “preserve fair competition in the female category”.
The judgment came after Semenya went to the CAS to challenge the IAAF rules forcing female athletes to regulate their testosterone levels.
In March 2019, the United Nations Human Rights Council adopted a resolution branding the IAAF rules “unnecessary, humiliating and harmful”.
Semenya’s testosterone levels are not publicly known.
The two athletes who finished behind her in the 2016 Rio Olympics 800m, Francine Niyonsaba of Burundi and Kenya’s Margaret Wambui, have also faced questions about their testosterone levels.
How the battle began
The IAAF announced in March 2018 that intersex athletes with high testosterone levels competing in the 400m and 800m events needed to lower their levels to only double that of what 99% of female athletes have.
This had to be done six months before the world championships at the end of September 2019.
Semenya and Athletics SA challenged this at the CAS in Lausanne in February.
A battle-hungry IAAF went into the fight in February, with its head, former Olympian Sebastian Coe, making it clear they were fighting for “fair and meaningful” competition for women. He argued that, without distinct male and female categories, women’s sport would not exist.
The IAAF said at the start of the hearing: “We risk losing the next generation of female athletes, since they will see no path to success in our sport.”
What was said at the hearing
While much of the hearing was in secret owing to medical confidentiality, press releases, leaks and academic studies by witnesses offered some insight.
Doctors and scientists argued about how much of an advantage there is in athletics for intersex people, who may be female but have internal testes and very high levels of testosterone.
There are different types of intersex conditions with differing levels of testosterone, but now one set of IAAF regulations applies to everyone.
It was also discussed whether it was fair and safe to force female athletes to medically change their bodies by lowering their testosterone, with the oestrogen hormone given in high doses.
Oestrogen, like the birth control pill which contains the hormone, has been shown to increase the risk of blood clots in athletes and obese people, so the IAAF needed to defend a medical intervention that had the potential to be unsafe.
Not the first time
It was the second time the IAAF had been taken to court by an athlete challenging their regulations which force intersex athletes to lower their testosterone if they wanted to compete.
The first person challenge was made by Indian sprinter Dutee Chand in 2015.
Chand won because the court was not convinced that intersex athletes with high testosterone had an advantage similar to that of a male athlete over a female.
The IAAF regulations were overturned.
In 2015, the CAS ruled: While a 10% difference in athletic performance (from testosterone) certainly justifies having separate male and female categories, a 1% difference may not justify a separation between athletes in the female category ... The numbers therefore matter.”
The court had asked the IAAF for evidence to back up its regulations.
The IAAF’s evidence
In 2018, the IAAF argued that it had found evidence that females with high testosterone had an unfair advantage.
It used two studies to argue its case that testosterone provides an unfair advantage much greater than other biological advantages, such as height.
Both studies were written by internal IAAF sports scientists, raising questions about conflict of interest and lack of independence.
In 2018, the IAAF referred to a study in the British Journal of Sports Medicine that was done by its own researchers.
This study showed that female athletes with high testosterone levels at the 2011 and 2013 World Athletic Championships had an advantage in the 400m, 400m hurdles, 800m, the mile, and 800m hurdles.
The IAAF said repeatedly it had the “legal, scientific, and ethical bases” for the regulation.
But a Norwegian professor and sports scientists, including SA’s Ross Tucker, found flaws in the paper. They discovered some of the athletes’ racing times used in the paper did not exist, while others had been duplicated. With a third of the data flawed, they said the results could not be valid, and they published their own paper to show this.
The IAAF itself had to redo parts of the paper, admitting errors, leaving questions about the quality of the evidence the association had to convince the court.
What did Semenya’s lawyer argue?
In a press release before testifying, sports scientist Roger Pielke jnr said the IAAF regulations were “discriminatory, irrational, and unjustifiable”.
Pielke argued there was no scientific evidence to support the IAAF’s case, and added that its own evidence was not independent.
“The IAAF set itself up for problems by conducting research on performance effects associated with testosterone using in-house research. We would not find it appropriate for cigarette companies to provide the scientific basis for the regulation of smoking, or oil companies to provide the scientific basis for regulation of fossil fuels.”
Semenya has 30 days to appeal, in a challenge that would be heard by the Swiss Federal Tribunal.
Semenya took potential steps to reinvent her career last week when she won the 5,000m at the South African Athletics Championships in a modest time of 16:05.97, an event that would allow her to compete outside IAAF regulations.
Semenya has said she does not wish to undergo medical intervention to change who she is and how she was born, and wants to compete naturally.But her dominance of the middle distances has been labelled unfair by some of her competitors.“Sometimes it is better to react with no reaction,” Semenya tweeted after the verdict.– Additional reporting by AFP and Reuters