by Gerard Emmanuel Kamdem Kamga
On 1 May 2019 the world heard of the ruling by the Court of Arbitration for Sport (CAS) regarding a case in which athlete Caster Semenya and Athletics South Africa opposed the International Association of Athletics Federations (IAAF), the world governing body for track and field athletics events. The saga began in 2011 when the IAAF introduced a new measure, so-called hyperandrogenism regulations, which were targeted at women with unusually high levels of testosterone. The new regulations threaten to ban such women from athletics competitions unless they submitted themselves to medical intervention to lower their testosterone levels. Then in 2015 the CAS suspended these regulations, allowing the IAAF time to further explore the science behind proposed new regulations and reconsider how best to address the issue. In April 2018 the IAAF responded by introducing the “Eligibility regulations for female classification (athletes with differences of sex development)”. These regulations aimed to cap testosterone levels among female competitors for 400 m, 800 m and 1 500 m races, a move that coincides with Caster Semenya’s area of specialisation. The decision was then upheld by the CAS, which in turn triggered this current reflection.
A number of issues are of interest here. Are genetics or testosterone levels key elements determining peak sports performance? Is the IAAF the right body to decide what is ‘normal’ in terms of gender, i.e. to define who is male or female? What are the implications of the CAS ruling for Semenya and the consequences in terms of ethical responsibility in sport and human rights?
It is crucial to define some key concepts contained in the IAAF’s regulations. An appropriate way to do this would be to borrow from the medical discipline. Firstly, there is the word testosterone which is defined as follows:
Testosterone is the most important circulating and naturally occurring androgen in both men and women. In women, testosterone is produced primarily through peripheral conversion of androstenedione (50 percent) with the remainder of production concentrated in the ovary (25 percent) and adrenal cortex (25 percent). During pregnancy, the placenta may also serve as a source of the hormone (Sowers et al. 2001: 256).
Testosterone is produced by both male and female bodies, but men generally produce higher levels. Sports bodies strictly prohibit introduction of testosterone into the body by artificial means, including through injection. Caster Semenya’s body naturally produces much higher levels of testosterone than most other women. However, she has never tested positive for a suspicious or banned substance. Questions, therefore, arise regarding the rationale for the IAAF move to intervene with a natural process that Caster experiences. The keyword word here is hyperandrogenism, which is understood as ‘the state characterised or caused by excessive production and/or secretion of androgens, which is usually manifested by acne, hirsutism or frontal alopecia. It also refers to increased blood levels of androgens (Catherine et al. 2010: 42-43). Caster’s unusually high hormonal levels are seen by the IAAF as an anomaly that needs to be corrected through medical treatment. In a similar vein, the International Olympic Committee (IOC) and other international sports federations have introduced policies requiring medical investigation of female athletes known to exhibit, or suspected of, hyperandrogenism.
Yet in March 2018, after a challenge from the Indian athlete Dutee Chand, the IAAF repealed its “Hyperandrogenism regulations”, replacing them with “Differences of sex development (DSD) regulations”. These regulations refer to disorders of sex development, i.e. a large group of congenital conditions of the urogenital tract and reproductive system which affect human sex determination or sex differentiation (Cools et al. 2018: 415). The DSD regulations defined new eligibility criteria for women with DSD regarding participation in race events from 400 m to 1 mile at international athletics competitions. These regulations were elaborated in the CAS decision (CAS decision, 1 May 2019):
The DSD covered by the Regulations are limited to athletes with “46 XY DSD” – i.e. conditions where the affected individual has XY chromosomes. Accordingly, individuals with XX chromosomes are not subject to any restrictions or eligibility conditions under the DSD Regulations. Athletes with 46 XY DSD have testosterone levels well into the male range (7.7 to 29.4 nmol/L; normal female range being below 2 nmol/Ll). The DSD Regulations require athletes with 46 XY DSD with a natural testosterone level over 5 nmol/Ll, and who experience a “‘material androgenizing effect” from that enhanced testosterone level, to reduce their natural testosterone level to below 5 nmol/L, and to maintain that reduced level for a continuous period of at least six months in order to be eligible to compete in a Restricted Event.
Hence the IAAF set a threshold for the maximum levels of testosterone permissible in female athletes, on the basis that higher levels enhance a female athlete’s performance by 5% or more. Athletes with higher levels of testosterone are required to submit to medical interventions to reduce their testosterone levels to below 5 nmol/L l for a minimum period of six months before they are allowed to compete. This intervention is not a once-off procedure but may have to be carried out repeatedly to maintain testosterone at acceptable levels. Athletes are required to undertake such interventions at their own expense, and there is no acknowledgement of possible side-effects and other consequences of such medical procedures. One questions the ethics of the IAAF decision to coerce women with higher testosterone levels into accepting such interventions. Although in recent years it may appear that there has been a higher frequency of hyperandrogenism or DSD in the world of sport, this is not in fact the case. It is likely that such a regulatory framework was created with the particular intention of targeting Semenya as a world class athlete from South Africa, and a holder of many world athletics records. She was the only athlete to challenge the IAAF’s new regulations. The public statement made by Semenya following her victory at the international athletic championships in Berlin in 2009 reflect the distress she has suffered:
Since my victory in the female 800-metre event at the Berlin World Championships in August last year, I have been subjected to unwarranted and invasive scrutiny of the most intimate and private details of my being. Some of the occurrences leading up to and immediately following the Berlin World Championships have infringed on not only my rights as an athlete but also my fundamental and human rights, including my rights to dignity and privacy.
It is based on the above IAAF’s regulations that in June 2018 Caster Semenya and Athletics South Africa made a request to the CAS , the independent international body established to settle disputes in sport, for arbitration. The CAS rulings are based on submissions and evidence presented by conflicting parties. Caster Semenya and Athletics South Africa challenged the legality of the DSD Regulations, which they claimed were “discriminatory, unnecessary, unreliable and disproportionate”. They went on to question the scientific justification given for the DSD regulations, which they suggested would cause “grave unjustified and irreparable harm”. The IAAF disagreed, alleging that the DSD regulations were based on the “best available science”, that they did not discriminate against anyone, and that they were necessary to guarantee “the legitimate aim of safeguarding fair competition and protecting the ability of female athletes to compete on a level playing field”.
In its final decision the CAS Panel dismissed the request for arbitration on the grounds that Caster Semenya and Athletics South Africa had been unable to establish that the DSD regulations were ‘invalid’. The Panel nevertheless declared that the DSD regulations were discriminatory. However, the majority of the Panel’s members found that, on the basis of the evidence submitted by the parties, such discrimination was a necessary, reasonable and proportionate means of achieving the IAAF’s aim of preserving the integrity of female athletics in the restricted events (CAS decision, 1 May 2019). The Panel did, nevertheless, express concern regarding future practical application of the IAAF’s DSD Regulations. It observed that while available evidence had not established that expressed concerns negated the conclusion of prima facie proportionality, in the future this might change unless constant attention was paid to the fairness with which the regulations were implemented. The following key concerns were raised by the panel (CAS decision, 1 May 2019):
The DSD regulations validated by the CAS ruling require female athletes suspected of higher levels of testosterone to reduce such levels regardless of health risk or other consequences. The process appears reprehensible in terms of ethics and women’s rights, as the regulations appear to regard the female body as a mere object that needs to be shaped to accommodate societal standards. The ruling means that testosterone is now the key element determining whether or not a person qualifies to compete in athletics events as a woman. The Regulations go so far as to openly reject the current physical characteristics of female athletes regarded as ‘guilty’ of hyperandrogenism and prescribe violation of their bodies’ integrity and invasion of their privacy. In doing so, the CAS contradicts section 6 of the Universal Declaration on Bioethics and Human Rights, which provides that “any preventive, diagnostic and therapeutic medical intervention is only to be carried out with the prior, free and informed consent of the person concerned, based on adequate information. The consent should, where appropriate, be expressed and may be withdrawn by the person concerned at any time and for any reason without disadvantage or prejudice”.
In terms of women’s rights, the CAS openly acknowledged the discriminatory nature of its decision but argued that it was ‘necessary, reasonable and proportionate’. On 5 May 2019, four days after the CAS decision, in a declaration entitled “Running in the face of discrimination”, the United Nations (UN) General Assembly expressed a strong concern that the ruling contravened international human rights norms and standards express reflected in the United Nations Human Rights Council’s Resolution of March 2019, adopted by consensus, regarding the ‘“Elimination of discrimination against women and girls in sport”. Indeed, on 21 March 2019 during it 40th session the United Nations Human Rights Council adopted a resolution entitled ‘Elimination of Discrimination against Women and Girls in Sport’. The Resolution which was adopted by consensus aimed at eliminating discrimination against women and girls in sport. In support of Semenya, the Resolution noted with concern that “many women and girls face multiple and intersecting forms of stigma and discrimination in sport, and are still subjected to discriminatory laws and practices based on their race and gender, and that States have an obligation to ensure and promote a broader framework of substantive equality for women and girls”. The Resolution also raised concerns about incompatibility between the IAAF DSD Regulations and international human rights norms:
the eligibility regulations for the female classification published by the International Association of Athletics Federations that came into effect on 1 November 2018 are not compatible with international human rights norms and standards, including the rights of women with differences of sex development, and concerned at the absence of legitimate and justifiable evidence for the regulations to the extent that they may not be reasonable and objective, and that there is no clear relationship of proportionality between the aim of the regulations and the proposed measures and their impact (United Nations General Assembly, 2019).
The issues raised in the 2019 Resolution are understandable in the context of a global environment with numerous international conventions protecting women’s rights, including amongst others the Convention on the Elimination of all Forms of Discrimination against Women (CEDAW), the UN Declaration on the Elimination of Violence against Women, and the Beijing Declaration and Platform for Action. It is surprising in this context that the CAS could validate regulation which appear to be openly discriminatory. The DSD Regulations can also be seen as a source of violence against women, given their prescription to reshape female athletes’ bodies. In this context, discrimination and violence against women appear not to be accidental but a process that is consistently and progressively built over time. On this account the UN Declaration on the Elimination of Violence against Women rightly points out:
That violence against women is a manifestation of historically unequal power relations between men and women, which have led to domination over and discrimination against women by men and to the prevention of the full advancement of women, and that violence against women is one of the crucial social mechanisms by which women are forced into a subordinate position compared with men.
In the same vein the 2019 UN Resolution insists on the discriminatory nature of the DSD Regulations vis-á-vis female athletes when it expresses concern that:
… discriminatory regulations, rules and practices that may require women and girl athletes with differences of sex development, androgen sensitivity and levels of testosterone to medically reduce their blood testosterone levels contravene international human rights norms and standards, including the right to equality and non-discrimination, the right to the highest attainable standard of physical and mental health, the right to sexual and reproductive health, the right to work and to the enjoyment of just and favourable conditions of work, the right to privacy, the right to freedom from torture and other cruel, inhuman or degrading treatment and harmful practices, and full respect for the dignity, bodily integrity and bodily autonomy of the person (United Nations General Assembly 2019).
Finally, the 2019 Resolution requests the UN High Commissioner for Human Rights to prepare a report on the intersection of race and gender discrimination in sports, including in policies, regulations and practices of sporting bodies, and to elaborate on relevant international human rights norms and standards. The report will be presented to the Human Rights Council at its June 2020 session. This was the first time that a human rights body held international sport associations to comply with their obligations under international human rights norms.
The DSD Regulations of the IAAF and their validation by the CAS deprive female athletes of rights over their bodies and rights pertaining to sexual and reproductive health. In this way female athletes are coerced to conforming to the societal standard that ‘normal’ is non-negotiable. By requiring female athletes with hyperandrogenism to accept unwanted hormonal treatment in order to lower their testosterone levels, the DSD Regulations invade the physical integrity of the person. In any event testosterone cannot be considered the only key element guaranteeing high performance in the world of sport, since performances by Semenya over the years despite high testosterone levels are not even close to performances by male athletes with similar levels of testosterone.
In my view the whole debate should have started with this point, but unfortunately the DSD Regulations do not allude to this issue. On 29 May 2019 Semenya filed an appeal to the Federal Supreme Court of Switzerland challenging the recent CAS decision that upheld the DSD Regulations. On 3 June 2019, the Federal Supreme Court of Switzerland ordered the IAAF to suspend the application of the DSD Regulations to Caster Semenya until 25 June. This is already a tiny victory but it seems the matter is not yet completely close.
CAS arbitration: Caster Semenya, Athletics South Africa (ASA) And International Association of Athletics Federations (IAAF): Decision. Available at https://www.tas-cas.org/en/general-information/news-detail/article/cas-arbitration-caster-semenya-athletics-south-africa-asa-and-international-association-of-athl.html (accessed 7 May 2019).
Catherine, G. et al. 2010. Insulin and hyperandrogenism in women with polycystic ovary syndrome: Journal of Steroid Biochemistry & Molecular Biology,122: 42-52.
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