By: Megan Cahill
In 2018, the track and field governing body, International Association of Athletics Federations, (IAAF) enacted a new Differences of Sex Development (DSD) eligibility rule for female classification. This rule required athletes to be legally recognized as female or intersex and required them reduce their blood testosterone levels to below 5 nmol/L in order to participate in restricted events. Members of the track community speculated that this rule targeted a specific athlete, South African 800 meter runner Caster Semenya. Semenya, a running powerhouse, won her first world championship in 2009 at age 18, and more recently became known for her 30 consecutive wins in 800 meter races. She also happens to be a female with hyperandrogenism, a condition where one generates above average hormone levels. In Semenya’s case, her testosterone levels were significantly higher than average, and the IAAF believed this awarded her an unfair competitive advantage over other female athletes.
The new IAAF rule required Semenya to either medically reduce her natural testosterone levels or compete in races outside the restricted distance range, which include events she had never trained for or participated in. As a result, Semenya challenged the DSD rule in the Court of Arbitration for Sport (CAS), claiming that the regulation was invalid and discriminatory. Specifically, her team argued that the regulations were sexist because they applied only to female athletes with ‘certain physiological traits.’ They further claimed that the DSD rules had no scientific foundation, are not necessary for fair competition, and cause unjustified harm to female athletes, especially in middle distance running events. Semenya’s team argued that the rules were prejudiced because of how the IAAF classified athletes as ‘intersex’ or as having ‘male sport sex,’ with no consideration to how the individual athlete identifies. In addition to the DSD rule being discriminatory, Semenya argued also that the IAAF’s subjective judgment of athlete phenotype in the practice of sex testing female athletes was biased since it was purely based on physical appearance.
Despite all these allegations which were supported by expert testimony, the CAS dismissed Semenya’s case and upheld the IAAF’s DSD regulation. While the court recognized gender fluidity exists, the CAS maintained that it works in an industry with an agreed binary division of athletics: male and female. Also, although CAS admitted that the regulations are discriminatory against Semenya and other hyperandrogenic female athletes, that discrimination did not outweigh the practices necessary for maintaining the integrity of female athletics and upholding the “protected class” of females. Unfortunately for the track and field industry, after this holding, Caster Semenya was unable to compete in the 2019 track and field World Championships, and has consequently taken a leave of absence from the sport altogether.
Semenya’s case raises legal and ethical issues regarding human rights, sex, and gender normality in professional sports. Fans and scholars disappointed with the holding argue that other athletes have advantages that set them apart from their competitors but are not barred from competing, so why exclude female athletes like Semenya whose biology is not “normal”? The holding of her case begs the question of when, if ever, there will be fairness in sport for intersex or transgender athletes. There is a fine line between inclusivity and competitive fairness in athletics, and it is time for the track and field community to take action against gender discrimination and add more racing divisions for trans or intersex athletes. Though Caster Semenya did not argue to the CAS that professional sports should change its strict, binary male and female classifications, her challenge to the regulations have sparked conversation about the lack of inclusivity in female sports, from the professional level down to the youth level, and how to include athletes all along the sex and
IAAF Press Release, IAAF Introduces New Eligibility Regulations for Female Classification, IAAF Athletics, (Apr. 26, 2018) https://www.iaaf.org/news/press-release/eligibility-regulations-for-female-classifica.
See id. (determining restricted events to be middle distance races ranging from 400 m to 1500 m).
Sean Ingle, Caster Semenya Wins 30thConsecutive Race Over 800 m, The Irish Times, (May 3, 2019, 7:45 PM) https://www.irishtimes.com/sport/other-sports/caster-semenya-wins-30th-consecutive-race-over-800m-1.3880294.
Jason Hanna and Kevin Dotson, Caster Semenya Wins 800-Meter Race Ahead of New Testosterone Rules, CNN Sports(May 13, 2019), https://www.cnn.com/2019/05/03/sport/caster-semenya-wins-800-meter-race/index.html.
CAS Executive Summary, Court of Arb. for Sport, https://www.tas-cas.org/fileadmin/user_upload/CAS_Executive_Summary__5794_.pdf.
Semenya and Athletics South Africa v. International Association of Athletics Federations, CAS 2018/O/5798, at 2 Court of Arb. for Sport(2018) https://www.tas-cas.org/fileadmin/user_upload/CAS_Award_-_redacted_-_Semenya_ASA_IAAF.pdf.
Id. at 162.
Id. at 161.
See id.(stating that the protected class is the group of women who competes in the restricted middle distance racing events, has normal testosterone levels, and does not have a distinct physical advantage).
See Taylor Dutch, 800-Meter Champion Caster Semenya Joins Soccer Club in South Africa, Runners World, (Sep. 6, 2019) https://www.runnersworld.com/news/a28942858/caster-semenya-joins-soccer-team/ (explaining Semenya’s choice to leave track and play soccer instead of undergoing hormone intervention or racing distances she may not be competitive in).
See Mark Schiefelbein, Semenya Ruling Could Have Impact on Transgender, Intersex Athletes, NBC News, (May 2, 2019, 11:37 AM) https://www.nbcnews.com/feature/nbc-out/semenya-ruling-could-have-impact-transgender-intersex-athletes-n1001126 (comparing Semenya’s competitive advantage to Michael Phelps’s natural and physical advantage of having abnormally long wing span).