21 June 2019

Caster Semenya case raises important legal and ethical questions of gender identity, sex equality and doping in sport

Caster Semenya, the South African sportswoman whose case has rocked the world of international athletics, continues to compete as she awaits a decision into her appeal against the implementation of new testosterone limits for female athletes.

In a story which has made headlines across the globe, leading Lincoln legal authority Richard Parnell says this is a dilemma that has featured in the sporting world for a number of years and asks if Semenya’s case will eventually see a resolution? Richard, a Partner at Wilkin Chapman solicitors and former Head of Legal at Lincoln City Football Club, is currently undertaking a PhD in which he is examining the classification system within Paralympic sport, having successfully completed a Masters degree in sports law…

To understand this issue fully, let’s first look at the background.

As an 18-year-old, Semenya burst onto the international athletics scene by winning the women’s 800m title at the 2009 World Championships in Berlin in dramatic fashion. Following complaints from fellow athletes, Semenya was forced to undergo a gender verification test. She was subsequently suspended by the world governing body of athletics, The International Association of Athletics Federations (IAAF), pending the results of those tests. The suspension was lifted in July 2010, but the test results have never been disclosed.

However, less than a year later in April 2011, the IAAF announced new eligibility rules for competition, forcing women with hyperandrogenism (a condition whereby a woman has excessive levels of testosterone) to take testosterone-lowering medication.

There followed, in July 2015, a challenge to the new rules by Indian sprinter Dutee Chand. On this occasion, the CAS found in Chand’s favour and the hyperandrogenism regulations were suspended pending the production of further scientific evidence by the IAAF.

Fast forward three years and in April 2018, the IAAF published a revised set of eligibility rules, which applied to the 400m, 800m and 1500m events. The IAAF deemed any women affected by these rules as athletes with ‘Differences of Sexual Development’, or “DSD”.

Semenya then launched her own challenge to the IAAF rules by pursuing her case to the CAS. The CAS ultimately found against Semenya and upheld the IAAF rules, with the result that Semenya would have to take testosterone-reducing medication in order to compete in women’s athletics.

Semenya successfully appealed this decision to the Swiss Federal Supreme Court, which has now temporarily suspended the new IAAF rules restricting levels of testosterone in female athletes. The Court has given the IAAF until June 25 to respond to its decision.

The case raises difficult legal and ethical questions concerning gender identity, sex equality and doping in sport. Sport traditionally classifies by sex, with men and women competing in separate events. This is despite the fact that, in many sports, for example equestrian, yachting, shooting and archery, there is no logical basis to differentiate by gender.

If sex segregation was abandoned in sport, allowing men and women to compete directly against one another, Semenya’s testosterone levels would be irrelevant. However, as matters stand, sports governing bodies are keen to ensure fair and meaningful competition by ensuring that athletes compete against each other on a ‘level playing field’.

Testosterone is the male sex hormone, more prevalent in men than women and higher levels assist athletes in achieving greater performance, particularly in power/strength sports. This is precisely why some athletes take steroids (synthetic compounds of natural testosterone).

The IAAF maintains that most females have natural testosterone levels of between 0.12 and 1.79 nmol/L in their blood, while men average 7.7 to 29.4 nmol/L. As a result, it has set the maximum levels for testosterone for female athletes at 5 nmol/L in certain events.

After the Dutee Chand case in 2015, the CAS instructed the IAAF to obtain evidence to support their position. The IAAF obtained over 2,000 samples from female athletes in the World Championships. These suggested better performance from female athletes with higher testosterone levels across different events. It also found that 7.1 in every 1,000 of the elite female athletes had elevated testosterone levels, the vast majority in the 400m, 800m and 1,500m events. But these results, and the IAAF data, have been criticised by a number of scientists.

We therefore have a difficult ethical dilemma: do we allow Semenya to compete with naturally elevated levels of testosterone which gives her an unfair advantage over her competitors, or do we seek to remove that advantage by forcing Semenya to take testosterone reducing medication?

There is a suitable precedent in competitive sport in Eero Mantyranta. Mantyranta was a Finnish cross-country skier who won two gold medals at the 1964 Winter Olympics. He had a natural advantage over his rivals, as he was born with a genetic mutation that gave him 25 to 50% more red blood cells in his body than the average man.

Red blood cells transfer oxygen from the lungs to the muscles, allowing athletes to go faster for longer. This is extremely useful for endurance athletes such as cyclists, runners, and cross-country skiers such as Mantyranta. Like Mantyranta 50 years before, Semenya possesses a natural advantage over her competitors. Consequently, this is no different to the genetic advantages of a tall basketball or volleyball player, or an East African athlete who lives and trains at altitude.

Semenya, who has been provisionally selected to run for South Africa in the 800m at the World Championships in Qatar later this year, has suggested that the IAAF should concentrate on enforcing anti-doping instead.

The irony of the IAAF’s position is that their new rules will force an athlete such as Semenya to take hormone suppressants which alters her natural state in order to compete despite the fact that in common with other sports governing bodies, the IAAF adopts a strict ‘zero tolerance’ policy towards the use of drugs.

Just last week, on June 13, The Swiss Federal Court determined in a second order that the IAAF’s initial arguments failed to set out any basis that would justify a reconsideration of their initial decision.

It remains to be seen how the IAAF will respond, however it is understood that the Swiss Court will be asked to reverse its decision, on the basis that the rules are a ‘necessary, reasonable and proportionate means of protecting fair and meaningful competition in elite female athletics’.

The real challenge faced by sports governing bodies such as the IAAF is how to deal with athletes such as Dutee Chand and Caster Semenya who identify as female, and are legally recognised as such, but who have naturally higher levels of testosterone than their female competitors and therefore possess the same physical advantages over those athletes as males have over females, which is of course the primary justification for men and women competing separately in sport.

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