7 minute read
Caster Semenya
THE CURIOUS CASE OF CASTER SEMENYA
BY MICHAEL MODESTE AND AYANNA NORVILLE
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INTRODUCING SEMENYA
Mokgadi Caster Semenya, a South African middledistance runner, is a two-time women’s 800m Olympic champion, a three-time 800m World Champion and a double Commonwealth Games middle distance gold medallist. For those who may not be avid sports fans, or, if this does not impress upon you Semenya’s world class athleticism, in May 2019, at the Doha Diamond League, she had won her 30th consecutive race over the distance of 800m. Despite her success in sports, Semenya has been involved in countless legal proceedings and challenges due to the fact that she has hyperandrogenism, that is, she has XY chromosomes and naturally elevated levels of testosterone circulating in her body. Notwithstanding Semenya’s record-breaking successes on the track, her times are incomparable to that of male runners despite purportedly having male levels of testosterone.
THE IAAF REGULATIONS
In 2018, the International Association of Athletics Federations (“IAAF”), now referred to as World Athletics, issued new Eligibility Regulations for the Female
Classification (Athlete with Differences of Sexual
Development) (“the DSD Regulations”). The DSD Regulations require an athlete who wishes to participate at international competitions in a restricted event (i.e. track events ranging between 400m to one mile), and who has a DSD with levels of circulating testosterone being 5 nmol/L or above and who is androgen-sensitive (i.e. their elevated testosterone levels have a material androgenising effect), to lower their testosterone levels for a continuous period of at least 6 months (e.g., by use of hormonal contraceptives) before competing in such restricted events, and thereafter must maintain them below that level continuously, for so long as the athlete wishes to remain eligible in order to compete.
SEMENYA CHALLENGES THE DSD REGULATIONS
In CAS 2018/0/5794 Mokgadi Caster Semenya v. International Association of Athletics Federations, Semenya together with Athletics South Africa (“ASA”) argued before the Court of Arbitration for Sport (“CAS”), inter alia, that the DSD Regulations unfairly discriminate against athletes on the basis of sex and/or gender because they only apply (i) to female athletes; and (ii) to female athletes having certain physiological traits; lacked a sound scientific basis; are unnecessary to ensure fair competition within the female classification; and are likely to cause grave, unjustified and irreparable harm to affected female athletes. However, in 2019, the CAS dismissed Semenya’s challenge and postulated that although the DSD Regulations were discriminatory, such discrimination was a necessary, reasonable and proportionate means of achieving the aim, of what is described as the integrity of female athletics. Subsequently, Semenya and ASA appealed to the Federal Supreme Court in Switzerland against the CAS decision, however, in 2020, both appeals were dismissed, and the decision of the CAS was upheld. Averse to taking testosterone-regulating medication, Semenya has indicated her refusal to compete in the restricted events.
CONTINUED...
THE IMPLICATIONS OF THE CASTER SEMENYA RULING: TESTOSTERONE, HUMAN RIGHTS AND GENDER IN SPORT
Questions have been raised about the veracity of the CAS’ ruling. It is evident that, among elite athletes, men, on average, have a 10 to 12 per cent athletic advantage, thus, in most international sporting competitions, men are only allowed to compete against men and women against women. It is a common societal perception that this vast difference in ability, is due solely to the higher quantity of testosterone in men, since testosterone, an anabolic hormone, improves muscle mass, strength and endurance. However, it is our opinion that this view is far too simplistic as testosterone levels cannot be used to gauge the improvement in athletic performances, as factors such as sociological and physiological differences must be taken into account. This view is supported by Richard Holt, Professor of Endocrinology at the University of Southampton, who stated that by observing persons, women included, competing across a professional level, one cannot predict if a person with a higher level of testosterone is going to outperform a person with a lower level. This view finds further support in studies conducted amongst triathletes and weightlifters, in which the purported advantageous traits conferred on individuals with heightened levels of testosterone, would be at its peak. Commentators and scientists, such as those relied on by the CAS, have produced studies to support the DSD Regulations, such as those which show the marked difference in athletic times for transgender athletes who transitioned from competing as male athletes, to female athletes. These athletes had to undergo testosterone suppression as part of their hormone therapy during their gender transition. However, it must be noted that these studies are centred around the manipulation of a person’s testosterone levels unnaturally and provide no conclusive evidence on the effects of naturally occurring testosterone on the athletic performance of androgynous women. The sad reality of athletes like Semenya affected by the DSD Regulations is, that they are not at fault for having a condition which naturally elevates their levels of testosterone. Due to these athletes being legally recognised as women, it is evident that these regulations are in breach of a plethora of International Human Rights Treaties. However, to the dismay of these athletes, the IAAF is a private body that is not subject to these Human Rights Treaties, and the CAS, as demonstrated by the Semenya ruling, is reluctant to factor in human rights in its decisions. Furthermore, the notion that a naturally occurring substance in a woman’s body confers an unfair advantage on her, is even more unjustifiable when contrasted with the glorification of male athletes, with unusual physical features and genetic abnormalities which cause them to excel in their sports. Twenty-eight-time Olympic medallist Michael Phelps’ muscles have been genetically proven to produce half the lactic acid of his competitors, enabling him to push himself for much longer without fatigue, in addition to his unique and optimally shaped swimming body. Finnish cross-country skier and 7-time Winter Olympic medallist, Eero Mäntyranta, possesses a genetic condition that increases the oxygencarrying capacity of his red blood cells by 25 to 50 per cent, which is the genetic equivalent of doping, a much-maligned practise in sport. No one has ever suggested that these men should restrict their superior traits with synthetic hormones and this is because we do not divide sport into categories based on lactic acid or haemoglobin, regardless of the advantages each confer. As noted by the CAS’ panel, the regulations are additionally discriminatory because they do not impose any equivalent restrictions on male athletes and, in light of the above evidence, it is hard to understand how the panel saw the upholding of the DSD Regulations as necessary. The outcome of a sporting event relies on a variety of factors, one being natural ability. Therefore, asking a woman to drug herself to lower her natural testosterone level, in our view, seems as ridiculous as asking a 10-foot tall female basketballer to play a session of basketball on her knees, due to the perceived advantage that her height confers upon her in the game.
SEMENYA’S NEXT STEPS
On November 17, 2020, Semenya’s Attorney-atLaw indicated that she would appeal to the European Court of Human Rights. Semenya revealed via social media, that she intends to compete in the 200m in the Tokyo Olympics, in place of the 400m, 800m and 1500m track events in which she usually competed. However, we look on with bated breaths due to the fact that World Athletics has left room for themselves to amend the DSD Regulations and, as such, one has to wonder if the 200m event would be transformed into a restricted event, if, Semenya takes home the gold in Tokyo.
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