In 2019, Caster Semenya lost a case in the Court of Arbitration for Sport (CAS) and then went ahead with appeals, all of which she has lost so far.
In the judgment, the court said: “The plaintiff was not afforded sufficient institutional and procedural guarantees in Switzerland to allow her complaints to be examined effectively, particularly as her complaints concerned documented and credible allegations of discrimination as a result of her increased testosterone (T) level resulting from differences in sexual development [DSD]. “
To be clear, DSDs are conditions that affect how we develop characteristics typically male or female. Individuals with sports-related DSDs usually have XY chromosomes and develop functioning testicles, which produce testosterone.
For reasons related to various enzymes and subsequent biological processes, they cannot use testosterone in the typical way, resulting in female or atypical female genital development.
At birth, these individuals are often identified as girls, despite the presence of male testes and testosterone levels, which leads to challenges later in life for athletic authorities.
Physiological issues versus legal rights
In 2019, much of the focus has been on the physiological issues of the condition, and whether a DSD policy requiring Semenya and others to limit T in order to compete is justified and necessary.
Once this case was concluded, we (all first-time CAS participants) were told that in the future, any legal action would focus more on process and jurisdiction than on biology.
No scientific or physiological expertise will be required. In fact, entirely new teams of lawyers emerged at that point to navigate what was a very different court system than CAS (which is an arbitration process).
Therefore, I’m not 100% sure what the ECHR’s decision actually means in practice. It is certainly not a ruling that would compel world athletics to set aside DSD policy and allow these athletes to compete, as a few enthusiastic sports officials have suggested.
Instead, the decision focuses on the CAS process, and may be the catalyst for reconsideration of policy in another challenge, but it is not, in and of itself, a judgment of whether global athletics policy is sound.
In other words, the referee isn’t talking specifically about global athletics policy, but rather the process by which Semenya (no, they referee) can challenge that policy.
Caster Semenya of South Africa competes in the women’s 800m semi-final on Day 13 of the Rio 2016 Olympic Games at Olympic Stadium on August 18, 2016 in Rio de Janeiro, Brazil. (Photo: Ian MacNicol/Getty Images)
Next steps may depend on what Semenya decides to do, and whether there is now a desire to return to the CAS to revisit the DSD policy and challenge it again.
Presumably, this will re-invite physiology and the scientific debate, with a heavy dose of human rights behind it. Meanwhile, that policy has changed – it was updated in March this year along with World Athletics’ revision of its transient guidelines, so the new challenge will have some differences.
One notable change made is that the DSD policy is no longer limited to a narrow range of events from 400 meters to a mile, but includes every single event, thrown into a marathon.
This strengthens the global mathematical position because trying to explain why the biological advantage of males is associated with certain events has undermined the biological basis of politics in the first place.
It is much stronger when the biological feature is recognized in each discipline. In addition, there have been a few cases since 2019, outside of this event range, and there is also a lot more research on the differences between males and females and the importance of testosterone. The biological position, at least, is stronger.
from their side , World Athletics released a statement that pretty much says the same thing – “It’s not us who were put on trial, it was the Swiss court system, and we stick to our politics.”
Biological reality versus human rights in sport?
Looking at it without emotion, my impression, which I’ll be the first to say is simplistic, is that CAS made its decision with a heavy eye on the biological merits of the case.
World Athletics (WA) made a very strong case for CAS in 2019. That is, a person with DSD undergoes normal male development and this creates performance advantages, which women’s sports are supposed to exclude.
Therefore, it would be unfair to allow an athlete to play women’s sports, and so it is “necessary, reasonable, and proportionate” (according to their words) that they have their own DSD policy.
On the other hand, the European Court of Human Rights decided to focus on the legal process and human rights elements of the case, without scrutinizing the same biological arguments.
And to be clear, these are undoubtedly important to consider. Implementation of DSD policy raised many important questions about medical autonomy and ethics, coercion, and the manner in which athletes were identified and “consented” to surgery and medical treatment.
Some of them were legitimately egregious and revealed questionable practices that world athletics would have to resolve (and hopefully consider moving forward). Plus, the process by which an athlete goes to CAS is always under scrutiny – they regularly come up for doping cases, too.
In these cases, you have one resident who focuses on biology. The other prioritizes the claim of human rights.
Caster Semenya of Team South Africa reacts after the women’s 5000-meter heats on day six of the IAAF World Championships Oregon 22 at Hayward Field on July 20, 2022 in Eugene, Oregon. (Photo: Hannah Peters/Getty Images World Athletics)
This approach cannot “solve” the problem because these are irreconcilable arguments – biological reality stands in opposition to the idea of gender identity and class eligibility in sporting competitions. This is why two courts reach different decisions – they make a choice between these two imperatives.
Whether this choice is correct depends on perspective. I’d like to acknowledge that women’s sports exist for biological reasons – they take away a biological advantage that creates massive performance effects.
Caster Semenya is a recipient of male biological development – her testosterone levels are high, because it is normal for males, who have testicles, to have very high levels of testosterone.
It’s not an aberration or unusual whim of physiology, it’s very basic, a straight line drawn from chromosomes to testes to hormone levels.
The debate can be reduced to choosing between physiology, the rights of people to identify (or be defined, in the more complex case of DSDs) as they like, and then claiming access to women’s sports that corresponds to their gender, rather than that of their gender.
And if it is made the choice that identity should trump biology, it directly erodes the boundaries that give women’s sports their meaning, and also leads us into a conversation about trans women, which should not be confused with DSDs, but would undoubtedly. creep here.
Or is it possible to recognize and treat DSDs as distinct cases of males wanting to identify with and then compete against women? Biologically speaking, no, the basis of the advantage is the same.
However, the already updated WA policy seems to, to some extent, acknowledge that DSD cases are ‘private’, because it has created a policy for trans women that differs slightly from that for DSD athletes.
Australia now completely excludes any person born male from participating in women’s sport. No entry even with T suppression. This is because of evidence showing that T reduction does not remove the male biology that creates performance advantages.
However, the new DSD policy allows these athletes to compete after suppressing T. Now, there is no biological basis for believing that a male who suppresses T must be any different from a DSD athlete who suppresses T biologically, WA should have the same policy for both.
It appears to be a “privilege” that allows DSD athletes to participate with the lowest T. This may be an acknowledgment that there are unique human rights perspectives, and they try to accommodate those with an inclusive policy as possible without being. unfair.
This approach may, in the medium to long term, be challenged again. If that happens, it will be really interesting to see how WA defends the biological basis of its policies.
On the one hand, they’re stronger now than they were in 2019, because they have more cases to point to, plus evidence that suppressing testosterone doesn’t work to remove the male advantage anyway, and so even allowing DSD athletes to compete could be argued. inclusivity.
Conversely, would the sport wish to stand up to human rights courts ruling that it unfairly discriminates?
If they don’t, that win for one athlete could come at a great cost to women’s sports. DM
This is an edited version of the Ross Tucker story that appeared in patreon.com
Professor Ross Tucker is a sports scientist.
