On Wednesday in Switzerland, the Court of Arbitration in Sports (CAS) explicitly endorsed discrimination with a devastating ruling that could have a long-lasting impact on the inclusivity and humanity of women’s sports.
The ruling upheld the ability for the International Association of Athletics Federations (IAAF) to implement regulations directly targeting athletes with differences in sex development (DSD). People with DSD — which is commonly referred to as intersex — might have hormones, genes, or reproductive organs that develop outside the gender binary. Last year, South African championship runner Caster Semenya and Athletics South Africa (ASA) challenged the IAAF’s DSD regulations, under the grounds that they were discriminatory.
“I just want 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,” Semenya said in a statement when she issued the challenge. “I am Mokgadi Caster Semenya. I am a woman and I am fast.”
Now, Semenya — and all women who have naturally-occurring levels of testosterone above five nanamoles per liter (nmol/L) and compete in IAAF events from 400 meters to a mile — will have to take drugs or undergo an invasive surgery to reduce their testosterone levels below the threshold for at least six months prior to competition. If they do not want to do that, they are free to compete with men, or compete in intersex categories, if such categories are available.
The DSD regulations only impact an individual with XY chromosomes; those with XX chromosomes are not subject to any restrictions or regulations under the guidelines. They are, by nature, targeted discrimination against women — a fact from which the CAS Panel did not hide.
“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 ruling states.
But Dr. Katrina Karkazis, a senior fellow with the global health justice partnership at Yale University, and the author of the upcoming book, Testosterone: An Unauthorized Biography, balks at the notion that it’s necessary to discriminate against women to safeguard women’s sports.
“It’s disappointing that it endorses discrimination against women in sport and allows sports governing bodies to require medically unnecessary interventions for continued eligibility, violating women’s bodily autonomy and integrity. This neither protects nor benefits women’s sport,” Karkazis said in a statement provided to ThinkProgress on Wednesday.
“My fear is that it will endorse erroneous representations about the science of sex biology, intersex, and the relationship between testosterone and athleticism.”
While this CAS ruling will have broad consequences, it’s crucial to note that its genesis was transparently targeted to halt Semenya’s dominance. The only events that are subject to these regulations are those between 400m and a mile; Semenaya is a two-time Olympic medalist in the 800m, and occasionally competes in the 400m and 1500m, though her success in those races has been much more limited.
“I know that the IAAF’s regulations have always targeted me specifically,” Semenya said in a statement on Wednesday. “For a decade the IAAF has tried to slow me down, but this has actually made me stronger. The decision of the CAS will not hold me back. I will once again rise above and continue to inspire young women and athletes in South Africa and around the world.”
On Twitter, she shared a quote that said, “Sometimes it’s better to react with no reaction.”
— Caster Semenya (@caster800m) May 1, 2019
The IAAF seems to have been out to get Semenya ever since she won a gold medal in the 800m at the 2009 world championships as an 18-year-old phenom. Instead of being celebrated, the 5’10” black woman was immediately scrutinized; the IAAF even broke its own confidentiality policy by announcing publicly that it was investigating her gender.
Since then, it’s been an ongoing battle. In 2011, the IAAF made its first attempt to regulate the amount of naturally-occurring testosterone permitted in cisgender women. But in 2015, Indian sprinter Dutee Chand challenged these regulations. That time, CAS ruled in her favor, and suspended the IAAF’s testosterone regulations for two years.
But the IAAF was not deterred. In 2017, they published and promoted a study concluding that female athletes with higher testosterone levels than their peers had a 1.8 to 4.5 percent performance advantage. Their methods were criticized by experts like Karkazis, but even if the results were taken at face value, they didn’t go far enough to prove the IAAF’s thesis. After all, male athletes have approximately a 10 percent advantage over their female peers; 1.8 to 4.5 percent is well below that threshold.
Additionally, the 1.8 to 4.5 percent advantage cited in the study was only applicable to five events — the biggest advantages came in hammer throw and pole vault, and the smallest advantages coming in the 400m, 400m hurdles, and 800m events. Yet, hammer throw and pole vault, two sports that are not dominated by women of color from the global south, are not subject to these regulations.
Semenya is a black, muscular, lesbian woman whose body and style do not conform to traditional notions of femininity. And she just so happens to dominate her sport. These regulations go out of their way to exploit transphobia, racism, homophobia, and sexism, to punish her and others like her from competing in the bodies in which they were born. When swimmers like Michael Phelps and Katie Ledecky dominate their sport, they’re congratulated for their genetics; Semenya, meanwhile, is condemned.
More than 60 elite athletes across women’s sports — including tennis legend Billie Jean King, U.S. women’s national team soccer stars Megan Rapinoe and Abby Wambach, and WNBA All-Star Layshia Clarendon — signed a letter last summer condemning the DSD regulations.
“These regulations continue the invasive surveillance and judgment of women’s bodies that have long tainted women’s sport,” the letter reads.
“They intensify the unfair scrutiny that female athletes already experience and exacerbate discrimination against women in sport who are perceived as not prescribing to normative ideas about femininity, which can include their appearance, their gender expression, and their sexuality.”
Last April, South African Professor Steve Cornelius resigned from the IAAF’s Disciplinary Tribunal, because he was horrified by the racist nature of these regulations.
“The adoption of the new eligibility regulations for female classification is based on the same kind of ideology that has led to some of the worst injustices and atrocities in the history of our planet,” Cornelius told ThinkProgress at the time.
If there’s a silver lining, it’s that the CAS ruling was a split decision — meaning there was a dissenting arbitrator in the group. And alarmingly, the panel admitted that it had significant concerns about the implementation of the rule, and that side effects from hormonal treatment might make it a practical impossibility to comply with these regulations. This is an incredibly legitimate concern — hormones fluctuate naturally, even when being unnaturally suppressed by medically unnecessary means.
However, because the framework of the arbitration limited the CAS Panel to determining merely whether or not DSD regulations were invalid, it ultimately sided with the IAAF.
Semenya, of course, will keep fighting, just like she always has.
“Ms. Semenya believes that the dissenting CAS arbitrator will be shown to be correct and the DSD Regulations will be overturned,” her spokesperson said on Wednesday.
“In the interim, Ms. Semenya believes that it is irresponsible for the IAAF to proceed with the implementation of the DSD Regulations in circumstances where the CAS decision makes it abundantly clear that there are serious problems with the regulations that need to be carefully considered and the DSD Regulations will unquestionably cause harm to the women affected by them.”