CHENNAI: Since1986 — the year when Court of Arbitration for Sport (CAS) heard its first case — it has given judgment on close to 1700 cases. A few of those verdicts have significantly altered the sporting ecosystem. In less than two weeks, CAS will once again side with either the appellants or the respondents. But there is one big difference between this case and most of the preceding 1700. The matter of Mokgadi Caster Semenya and Athletics South Africa v International Associations of Athletics Federations (IAAF) has the potential to rapidly alter the future of sport. Before getting into the here and now, it’s important to understand how and why the IAAF, and other interested parties including CAS who ruled against the governing body for athletics in a similar landmark case in 2015, got here.
The history
It started a couple of hours before Semenya took to the track for the final of the women’s 800m at the Berlin World Championships in 2009. A leaked news report said that the IAAF had subjected the South African to a sex verification test. The then 18-year-old, who took gold by a margin of 2.45 seconds, had already become a marked woman.
There were no post-race celebrations even as Pierre Weiss, the then general secretary of the IAAF, fielded questions on the issue. The testing, Weiss opined, was done because of ‘ambiguity, not because we believe she is cheating’, according to the New York Times. Even if the IAAF let her keep her gold, other athletes were passing hot-takes minutes after the race. “These kinds of people should not run with us,” Italy’s Elisa Cusma, who finished sixth in that final, was quoted as saying by the Italian media. “For me, she’s not a woman. She’s a man.”
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What followed was an 11-month exile before she was cleared to run again in July 2010. In 2011, IAAF approved new rules regarding hyperandrogenism, a medical condition which sees excessive levels of androgens like testosterone in a woman’s body. This forced Semenya and other women like her to seek Hormone Replacement Therapy (HRT) to be eligible to participate in competitive events.
Till 2015, this was the status quo before Dutee Chand successfully argued against this regulation as CAS urged IAAF to support their claims ‘with scientific evidence about the quantitative relationship between enhanced testosterone levels and improved athletic performance in hyperandrogenic athletes’.
In 2018, IAAF issued new regulations for female classification (athlete with differences of sexual development) for events from 400m to the mile.
“The new regulations require any athlete who has a DSD that means her levels of circulating testosterone (in serum) are five nmol/L or above and who is androgen-sensitive to meet the following criteria to be eligible to compete in restricted events in international competition...” the IAAF said in a press release.
In other words, all athletes taking part from 400m to the mile and suffering from hyperandrogenism, would have to undergo compulsory treatment to reduce blood testosterone level to below five nmol/L for a continuous period of up to six months. It is essentially this new law that the South African has challenged in CAS.
The case
The outcome could have huge ramifications irrespective of how it’s decided. The IAAF’s main concern, it claimed last year, is in ensuring fair play. “As the international federation for our sport,” IAAF chief Sebastian Coe said, “we have a responsibility to ensure a level playing field for athletes. Like many other sports, we choose to have classifications for our competition — men’s events and women’s events. This means we need to be clear about the competition criteria for these two categories.
Our evidence and data show that testosterone, either naturally produced or artificially inserted into the body, provides significant performance advantages in female athletes. The revised rules are not about cheating, no athlete with DSD has cheated. They are 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.”
When it announced the new regulations in a press release last year, the body explained what science had unearthed with respect to testosterone. “Most females (including elite female athletes) have low levels of testosterone circulating naturally in their bodies (0.12 to 1.79 nmol/L in blood); while after puberty the normal range is much higher (7.7-29.4 nmol/L). No female would have serum levels of natural testosterone at 5nmol/L or above unless they have DSD or a tumour. Individuals with DSDs can have very high levels of natural testosterone, extending into and even beyond normal male range.
“There is a broad medical and scientific consensus, supported by peer-reviewed data and evidence from the field, that the high levels of endogenous testosterone circulating in athletes with certain DSDs can significantly enhance their sporting performance.” The IAAF believes that if Semenya is allowed to compete with other women in the 800 or the 1500m, she will enjoy a significant and unfair advantage because of the elevated levels of testosterone in her body.
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Further, the world’s supreme sporting body — International Olympic Committee (IOC) — is also keeping one eye on the verdict, The Guardian wrote in January. “‘The IOC is waiting to see what happens in the Semenya case’ before announcing its testosterone limits for transgender athletes in women’s events for the 2020 Summer Olympics in Tokyo,” it quoted Joanna Harper, who advises the IOC on model regulations for transgender athletes, as saying.
“As things stand, the IOC plans to reduce the level from 10 nanomoles per litre to five, because 99% of women have testosterone levels less than three nanomoles per litre. The reason, as Harper, a medical physicist who was born male but later transitioned, explains, is because “if you’re competing in the women’s division, you should do so with women’s hormone levels. I understand just how much difference they make,” the daily wrote. There is also a fear, perhaps bordering on paranoia, that if CAS rules for the South African, other athletes with elevated testosterone levels might try and game the system.
The science
The other side of the argument is this. Semenya said in the aftermath of the new ruling, that it was ‘discriminatory, irrational and unjustifiable’. The 28-year-old, who has seldom aired her thoughts on the issue, said last June that she just wanted to ‘run naturally, the way I was born. It is not fair that I am told I must change. It is not fair that people question who I am’.
There is also the issue of science. Many researchers, some of whom testified for Semenya at the hearing, have said that the IAAF’s methodology isn’t solid. “In the CAS ruling on the Dutee Chand case, CAS asked IAAF to take no more than two years to investigate the effects of testosterone on athletic performance in actual competition,” Roger Pielke Jr, director of the Sports Governance Center at the University of Colorado, told this daily. “The new regulations were put forward in April 2018 and were justified based on this research.
The new regulations focussed on distances of 400m to one mile and also on women with DSDs. The new IAAF research was criticised by many researchers for its methods and the failure of IAAF to share any of its data. Also, the new regulations were criticised because they did not correspond to the actual research results reported by IAAF — for instance, events that were regulated were reported to have a smaller testosterone effect than events that went unregulated...,” Pielke Jr, an expert witness in the case, said.
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Pielke Jr said the IAAF data was full of errors and completely unreliable. “There is no way that this evidence should be used as the basis for regulation. In fact, we have called for the IAAF paper to be retracted from publication (...). The flaws in the IAAF research are undeniable at this point. We have argued that, quite separate from the issues of sex and gender, that as a matter of scientific integrity in regulatory policy, the new IAAF regulations are simply not fit for purpose.”
While Pielke wasn’t willing to speculate on the case’s outcome, he said it could have a huge bearing on the future of women’s sport. “I am bound by a confidentiality agreement on the proceedings. I can say that however the case is decided, it will be incredibly significant.” There is also the question of genetics. Semenya’s supporters argue that her gift is an advantage that should be cherished. They argue that it is similar to Michael Phelps’ extra-long wingspan or Kevin Durant’s height. The IAAF, on the other hand, see it as a condition that must be cured before she is eligible to race against other women.
Even if this is such a complex case where gender, sex, ethics, politics and race is as integral and important to the sporting discourse, it ultimately boils down to this one question that CAS will attempt to answer. Should her genetics be cherished or is it a condition that must be cured?
Glory and controversy
August 2009
Bursts onto global stage as an 18-year-old by winning 800m gold at the Berlin World Championships. However, controversy follows just hours later as Semenya is declared ineligible to compete for 11 months after medical examinations.
July 2010
IAAF clears Semenya to compete and decides not to strip her of the World Championship gold.
September 2011
Returns to world stage with a silver medal at the Daegu World Championships. That would eventually turn into gold after Russia’s Mariya Savinova is stripped of all her medals following doping charges.
August 2012
Carries her nation’s flag at the London Olympics and finishes behind Savinova once again. Another silver that would later turn into gold.
July 2015
She gets a lifeline as Dutee Chand gets a CAS ruling that forces IAAF to drop rules regulating naturally-occurring testosterone until they can prove it hands an advantage.
July 2016
A big year as she clocks the fastest time for eight years at the Monaco Diamond League. Goes even faster at the Rio Olympics and wins gold.
April 2018
IAAF confirms its updated eligibility regulations which are applicable only in events from 400m onwards. The update means that Semenya’s future is once again under a cloud.
June 2018
Goes to CAS and challenges the new IAAF regulations while the international body says that it will only be implemented following the verdict of the case.
March 2019
CAS, which was supposed to rule on the case in March, defers the judgement to late April.