Caster Semenya: ten years of controversy
I was trackside on 1st May 2019 when the Council of Arbitration for Sport (CAS) announced its ruling regarding the case of Olympic athlete, Caster Semenya and Athletics South Africa (‘the claimants’) against the International Association of Athletics Federations (IAAF). At 1200hrs Central European Summer Time (CEST), every sports journalist seemed to be tweeting the CAS decision. I’m no longer on Twitter — I find it an often vile, abusive, and increasingly anti-intellectual place; somewhere where folk seem to go to hurl abuse at one another — but gossiping athletes keep me abreast of what they think will make me laugh out loud, disgust me or shake my head in disbelief. It was a busy sports complex on a typical training day with lots of athletes and coaches. At this specific venue there’s an outdoor track; an indoor sprint and warm-up area with jumping pits, throwing nets and drill areas; a heavy weights room; several therapy rooms; and a relaxation space. For at least an hour, all the conversations in every corner and in several languages seemed to be about Semenya. I read the CAS press release (1) over lunch but felt I needed more information. The Executive Summary was not published by CAS until 1542hrs (2). Nevertheless, and without having seen this informative six-page document, let alone the full hearing report (yet to be published) most people had decided what was right or wrong in an incredibly complex case, and the insults were flying.
Ten years of speculation
Anyone involved in athletics knows that this story began over ten years ago. In 2009, Semenya won gold in the 800m at the World Championships in the impressive time of 1 min. 55.45s. Controversy followed immediately and amidst all kinds of lurid, tabloid headlines, it was announced that Semenya had been required to undergo a sex verification test (3). The results were not published. Unfortunately, confidential medical information regarding this test was leaked, leading to all kinds of often unseemly speculation. Ten years have passed like this, accompanied by IAAF rule changes regarding permitted levels of testosterone for athletes with differences of sexual development (DSDs). Applied to Semenya, these rules seem to make a difference of around seven seconds to her best 800m time: she runs slower when required to lower her naturally occurring testosterone levels. In 2015, the IAAF rules were challenged by another athlete (Dutee Chand) and suspended, with CAS asking the IAAF to provide evidence for its current stance on testosterone and giving them two years to do so (4). As with this current case, within minutes, everyone had an opinion on the CAS-Chand ruling, either informed by the press release or someone’s interpretation of this. The ruling from the CAS Chand hearing is 161 pages long and is essential and necessary reading for anyone wishing to comment (5).
In the interim, Semenya won gold in the 800m at the 2016 Rio Olympic Games in a time of 1min. 55.28, amid further media speculation that the first three athletes in the final all had DSDs. In 2017 the IAAF announced its regulations based upon the scientific evidence they’d been asked for by CAS, effective from November 2018 (6). The study that provided the evidence for these rules has been heavily criticised (7) and this has been discussed elsewhere (8). It is these rules that were challenged unsuccessfully by Semenya and Athletics South Africa in this latest CAS hearing. The IAAF’s regulations mean that to compete in her preferred event, the 800m (she is also an exceptional 400m and 1500m runner, incidentally, but the same rules apply) Semenya will have to take medication to lower her testosterone levels to below 5nmol/L. This ruling raises potential medico-legal, ethical questions.
Armchair critics have been quick to claim that the IAAF has discriminated against Semenya personally, noting that it is her preferred events that are largely subject to the IAAF’s regulations. However, the IAAF’s Stephane Bermon had this to say in 2018 when the IAAF’s research was questioned, “…the other group of scientific evidence we have is that, and you probably don’t know about that, but we are dealing with the issue of intersex athletes for more than 10 maybe 15 years at the IAAF, and many athletes, not 3, 4, 5, I would say 20, 25, 30 athletes and we examined in which events they were competing and surprisingly many of them, approximately 80% of them were competing in long sprints and middle distance running…It has been a concern for many years. It’s just that the media is concerned now. But you have intersex athletes who ran in important races and got some medals without the public knowing they are intersex, so it’s not new stuff” (9). Of the (upto) 30 DSD athletes who have been competing at the highest level in the long sprints and middle distance events, some of whom have won major championship medals according to Bermon, it is Semenya, supported by Athletics South Africa, who brought the case to CAS.
The Executive Summary
The legal argument is to be found in the CAS Executive Summary. It is summarised in paragraphs 9 and 10:
“The Claimants contended inter alia that the DSD Regulations unfairly discriminate against athletes on the basis of sex and/or gender because they only apply (i) to female athletes; and (ii) to female athletes having certain physiological traits. They submitted that the DSD Regulations lack a sound scientific basis; are unnecessary to ensure fair competition within the female classification; and are likely to cause grave, unjustified and irreparable harm to affected female athletes. Accordingly, the Claimants sought an award from the CAS declaring the DSD Regulations unlawful and preventing them from being brought into force on the basis that the Regulations are unfairly discriminatory, arbitrary and disproportionate and therefore violate the IAAF Constitution, the Olympic Charter, the laws of Monaco, the laws of jurisdictions in which international athletics competitions are held, as well as universally recognised fundamental human rights.
In response, the IAAF submitted that the DSD Regulations are based on the best available science; do not discriminate on the basis of any protected characteristic; and are a necessary, reasonable and proportionate means of pursuing the legitimate aim of safeguarding fair competition and protecting the ability of female athletes to compete on a level playing field.”
The complexity of the case is acknowledged by CAS under the section dealing with ‘The Award’. Of particular interest are paragraphs 18 and 19:
“The Panel accepts the IAAF’s submission that reference to a person’s legal sex alone may not always constitute a fair and effective means of making that determination. This is because the reason for the separation between male and female categories in competitive athletics is ultimately founded on biology rather than legal status. The purpose of having separate categories is to protect a class of individuals who lack certain insuperable performance advantages from having to compete against individuals who possess those insuperable advantages. In this regard, the fact that a person is recognised in law as a woman and identifies as a woman does not necessarily mean that they lack those insuperable performance advantages associated with certain biological traits that predominate in individuals who are generally (but not always) recognised in law as males and self-identify as males. It is human biology, not legal status or gender identity, that ultimately determines which individuals possess the physical traits which give rise to that insuperable advantage and which do not.
Accordingly, the purpose of the male-female divide in competitive athletics is not to protect athletes with a female legal sex from having to compete against athletes with a male legal sex. Nor is it to protect athletes with a female gender identity from having to compete against athletes with a male gender identity. Rather, it is to protect individuals whose bodies have developed in a certain way following puberty from having to compete against individuals who, by virtue of their bodies having developed in a different way following puberty, possess certain physical traits that create such a significant performance advantage that fair competition between the two groups is not possible. In most cases, the former group comprises individuals with a female legal sex and a female gender identity, while the latter group comprises individuals with a male legal sex and male gender identity. However, this is not true of all cases. Natural human biology does not map perfectly onto legal status and gender identity. The imperfect alignment between nature, law and identity is what gives rise to the conundrum at the heart of this case.”
Important conclusions are reached in paragraphs 22 and 23:
“The IAAF submitted that all but one of the many different factors that contribute to sport performance — including training, coaching, nutrition and medical support, as well as many genetic variations — are equally available to men and women. The only factor that is available only to men is exposure to adult male testosterone levels. The IAAF submitted that if the purpose of the female category is to prevent athletes who lack that testosterone-derived advantage from having to compete against athletes who possess that testosterone-derived advantage, then it is necessarily “category defeating” to permit any individuals who possess that testosterone-derived advantage to compete in that category. The majority of the Panel accepts the logic of the IAAF’s submission.
Having carefully considered the expert evidence, the majority of the Panel concludes that androgen sensitive female athletes with 46 XY DSD enjoy a significant performance advantage over other female athletes without such DSD, and that this advantage is attributable to their exposure to levels of circulating testosterone in the normal adult male range, rather than the normal adult female range. The majority of the Panel observes that the evidence concerning the performances and statistical over-representation of female athletes with 46 XY DSD in certain Relevant Events demonstrates that the elevated testosterone levels that such athletes possess creates a significant and often determinative performance advantage over other female athletes who do not have a 46 XY DSD condition.”
I would urge everyone who wishes to comment critically on the Semenya case to read this Executive Summary carefully. It would appear that the claimants (Caster Semenya and Athletics South Africa) challenged the IAAF’s ruling regarding DSD athletes and the CAS made its award having considered expert evidence regarding androgen sensitive 46 XY athletes. The conclusion to be reached is that Semenya is such an athlete and has, as a consequence, what CAS describes as a ‘significant performance advantage’ (see above).
In a later press release published on 7th May (10), the IAAF made it crystal clear, “The DSD regulations only apply to individuals who are legally female (or intersex) and who have one of a certain number of specified DSDs, which mean that they have: male chromosomes (XY) not female chromosomes (XX); testes not ovaries; circulating testosterone in the male range (7.7 to 29.4 nmol/L) not the (much lower) female range (0.06 to 1.68 nmol/L); and the ability to make use of that testosterone circulating within their bodies (i.e., they are ‘androgen-sensitive’).
To read, watch or listen to the various news outlets reporting on this story would leave you ignorant of this crucial detail, a point also made by Robert Johnson, founder of the ‘Letsrun’ website (11). This remains surprising since the ‘Y’ chromosome is incredibly important in all of this. Johnson quotes South African exercise physiologist, Professor Ross Tucker, who testified for the claimants (Semenya and Athletics South Africa) at the CAS hearing. Tucker said this in 2016, “…the presence of the Y chromosome is the single greatest performance advantage a person can have. That doesn’t mean that all men out-perform all women, but it means that the Y chromosome and specifically the SRY gene on it, which directs the formation of testes and the production of testosterone, is a key criterion on which to separate people into categories. So going back to the premise that women’s sport is the protected category and that this protection must exist because of the insurmountable and powerful effects of testosterone, my opinion on this is that it is fair and correct to set an upper limit for that testosterone… The advantage enjoyed by a Semenya is not the same as the one enjoyed by say, Usain Bolt or LeBron James or Michael Phelps, because we don’t compete in categories of fast-twitch fibre, or height or foot size (pick your over-simplification for performance here). So, Semenya has a genetic advantage by virtue of; a) having a Y chromosome and testes, and; b) being unable to use that T and/or its derivatives enough to have developed fully male” (12). Tucker has since written reasonably and at length on the issue on his own website: https://sportsscientists.com.
Of course, given the biological, psycho-social, ethical and political questions raised in this case, just what kind of research would answer them all to everyone’s satisfaction? In the polarised, increasingly ideological (in other words, belief-based) and often ill-mannered arguments that have followed the CAS decision, just what type of research could ever be sufficiently robust, all-encompassing, precise and persuasive? Furthermore, I would suggest that most people seldom, if ever, change their view because of evidence and the logic of the argument presented. On the big issues, asking any person to change their mind is to ask them to change an internal conversation that has developed over a lifetime. It is potentially hugely distressing and de-stabilising: it often requires individuals to change not their mind but their socially-constructed worldview, and then as a consequence, effectively banish themselves from their existing social network. On the big issues, it’s whistleblowing against yourself.
Ten years ago: re-visited
Semenya did not bring this case to CAS alone. The claimants are Semenya and Athletics South Africa. Ten years ago, as a result of the sex verification test, someone in Athletics South Africa must have known that Semenya was an androgen sensitive 46 XY athlete, surely? They must also have known what this might mean both to the athlete themselves and in any subsequent legal challenge. Someone representing Athletics South Africa must have seen the results of the original sex verification test, surely?
Shortly after the Berlin World Championships in 2009, I remember reading an insightful and thought-provoking piece by Ariel Levy regarding Caster Semenya in the New Yorker magazine (13). Thankfully, it’s still available online and it is something else I would urge everyone to digest carefully. Levy provides helpful contextual background regarding Semenya’s early life in particular and describes the circumstances regarding the verification test in 2009. Having read it again and refreshed my memory, I looked again at the Olympic medal table. In 2012, South Africa won one gold medal in athletics, courtesy of Caster Semenya. This was originally a silver medal but Semenya was upgraded following a subsequent doping positive by the first placed athlete on the day, Mariya Savinova. In 2016, South Africa won two gold medals in athletics, with one of those again coming from Semenya.
Here’s my possibly ill-informed position to add to everyone else’s. This complex case with no simple solution that can possibly please everyone has been in the news for a decade. In the flag-waving world of Olympic sport, winning medals — preferably gold ones — and climbing up that flawed media construct that is the ‘medal table’ is all that seems to matter to nations when it comes to the Olympics. It’s the reason there was a state sponsored doping programme in the former East Germany (14). It’s what drove the Russians to swap urine samples through a hole in the wall at the 2014 Winter Olympics (15). It’s why Great Britain has invested £903.6 million since 1997 (16) in its world class performance programmes for the Summer Olympic Games alone (I’ve left out UK Sport’s investment figures for the Winter Games, as well as the Paralympics) in its no-compromise, ‘medals-at-all-costs’ Olympic programme, despite a House of Lords Select Committee agreeing that there is no such thing as an Olympic Legacy (17).
My completely speculative position is this: athletes are now commodities, counted and discussed solely in terms of their ability to deliver medals. In the four-year, Olympic-cycle planning meetings that every nation holds, athletes are no longer described as individuals who have a chance of winning a medal, they are medal chances. Is it possible that ten years ago someone didn’t see Caster Semenya the talented athlete and human being with a rare intersex condition? Instead, did they just see Caster Semenya the commodity and likely Olympic gold medal?
References
1. https://www.tas-cas.org/fileadmin/user_upload/Media_Release_Semenya_ASA_IAAF_decision.pdf
2. https://www.tas-cas.org/fileadmin/user_upload/CAS_Executive_Summary__5794_.pdf
4. https://www.iaaf.org/news/press-release/hyperandrogenism-regulations-cas-dutee-chand
5. https://www.tas-cas.org/fileadmin/user_upload/AWARD_3759__FINAL___REDACTED_FOR_PUBLICATION_.pdf
6. https://www.iaaf.org/news/press-release/cas-female-eligibility-regulations
7. http://leastthing.blogspot.com/2018/07/a-call-for-bermon-and-garnier-2017-to.html
8. https://medium.com/@Antonia_Lee/of-sport-sex-and-gender-23b455e44b61
10. https://www.iaaf.org/news/press-release/questions-answers-iaaf-female-eligibility-reg
12. https://www.letsrun.com/forum/flat_read.php?thread=7489860&page=2
13. https://www.newyorker.com/magazine/2009/11/30/eitheror
14. http://clinchem.aaccjnls.org/content/43/7/1262
15. https://www.theguardian.com/sport/2016/may/12/russian-doctors-athletes-evaded-doping-tests
16. http://www.uksport.gov.uk/our-work/investing-in-sport/historical-funding-figures
17. https://publications.parliament.uk/pa/ld201314/ldselect/ldolympic/78/7803.htm
