LAUSANNE - The Court of Arbitration for Sport on Wednesday rejected Caster Semenya's challenge against IAAF rules forcing her to lower her testosterone levels to compete with women, even as judges labelled the regulations "discriminatory."
The three judge panel found that the rules targeting athletes with differences in sexual development (DSD) were "discriminatory" but that "such discrimination is a necessary, reasonable and proportionate means of achieving the IAAF’s aim of preserving the integrity of female athletics".
Sport and Recreation Minister, Tokozile Xasa, has responded to the ruling. pic.twitter.com/4Ox8qaECFK— EWN Sport (@EWNsport) May 1, 2019
The IAAF says the rules are essential to preserve a level playing field and ensure that all female athletes can see "a path to success."
But Semenya's cause has earned widespread support, including by a global coalition of nations and scientific experts who argue that testosterone is an arbitrary and unfair measure for determining gender.
The CAS in Lausanne, Switzerland heard a week of arguments in the case in February.
Semenya, who has dominated the 800m race over the last decade, has remained largely silent through the court battle, excluding statements from her legal team condemning the IAAF's tactics and policies.
But scores of others have vocally rallied behind her.
In a rare intrusion into the world of sport, the United Nations Human Rights Council adopted a resolution last month branding the IAAF rules "unnecessary, humiliating and harmful."
With unanimous support from the council's 47 member-states representing every continent, the resolution marked a stunning rebuke for the IAAF.
Tennis legend Martina Navratilova is among a long-list of athletes who have backed Semenya.
But her most fervent support has come from South Africa, where the government has accused the IAAF of seeking to violate women's bodies and levelled racism charges against the athletics governing body.
Experts have meanwhile argued that barring certain women from competition due to naturally high testosterone levels would be like excluding basketball players because they are too tall.
Multiple scientists have noted that achieving excellence in sport is a combination of training, commitment as well as genetics and that excluding people from competition over a single genetic factor has no scientific basis.
The IAAF rules capping testosterone levels in women athletes at five nanomoles per litre (nmol/L) of blood were instituted in November 2018 but have been suspended pending Wednesday's verdict.
The IAAF, led by British track champion Sebastian Coe, has maintained that its case is simply about fairness.
DSD athletes with male levels of testosterone "get the same increases in bone and muscle size and strength and increases in haemoglobin that a male gets when they go through puberty," the federation has said.
Ensuring that all women athletes have female levels of testosterone is therefore necessary "to preserve fair competition in the female category," it added.
READ the CAS media release on the ruling below:
CAS ARBITRATION: CASTER SEMENYA, ATHLETICS SOUTH AFRICA (ASA) AND INTERNATIONAL ASSOCIATION OF ATHLETICS FEDERATIONS (IAAF): DECISION
Lausanne, 1 May 2019 – The Court of Arbitration for Sport (CAS) has ruled on the requests for arbitration filed by the South African athlete Caster Semenya and Athletics South Africa (ASA) (“the Claimants”) against the International Association of Athletics Federations (IAAF) (collectively, the parties). The arbitration procedures concerned the “IAAF Eligibility Regulations for Female Classification (Athletes with Differences of Sex Development)” (DSD Regulations) that were due to come into effect on 1 November 2018 and which are currently suspended, pending the outcome of the CAS procedures. The CAS has dismissed both requests for arbitration.
Caster Semenya and ASA requested that the DSD Regulations be declared invalid and void with immediate effect. They consider them as being discriminatory, unnecessary, unreliable and disproportionate. The IAAF contended that the DSD Regulations do not infringe any athlete’s rights, including the right to equal treatment, but instead are a justified and proportionate means of ensuring consistent treatment, and preserving fair and meaningful competition within the female classification. There is no dispute that there should be a separate classification for female athletes – a binary divide between male and female.
In March/April 2018, the IAAF cancelled its “Hyperandrogenism Regulations”, which had been primarily challenged by the Indian athlete Dutee Chand, and replaced them with the DSD Regulations establishing new requirements governing the eligibility of women with DSD for the female classification in race events from 400m to 1 mile (the “Restricted Events”) at international athletics competitions. 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/L). The DSD Regulations require athletes with 46 XY DSD with a natural testosterone level over 5 nmol/L, 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. Such reduction can be achieved, according to the IAAF evidence, by the use of normal oral contraceptives.
In June 2018, Caster Semenya and ASA filed their respective requests for arbitration at the CAS against the DSD Regulations adopted by the IAAF. The proceedings were conducted by the Hon. Dr. Annabelle Bennett (Australia), President, the Hon. Hugh L. Fraser (Canada) and Dr. Hans Nater (Switzerland) who heard the parties, their witnesses and experts (specialising in gynaecology, andrology and the causes, diagnosis, effects and treatment of DSD; genetics, endocrinology and pharmacology; exercise physiology and sports performance; medical and research ethics; sports regulation and governance; and statistics) in Lausanne, Switzerland, from 18 to 22 February 2019. After the hearing, the parties filed additional submissions and materials and agreed to postpone the issuance of the CAS award until the end of April 2019.
By majority, the CAS Panel has dismissed the requests for arbitration considering that the Claimants were unable to establish that the DSD Regulations were “invalid”. The Panel found that the DSD Regulations are discriminatory but the majority of the Panel found that, on the basis of the evidence submitted by the parties, such discrimination is a necessary, reasonable and proportionate means of achieving the IAAF’s aim of preserving the integrity of female athletics in the Restricted Events.
However, in a 165-page award, the CAS Panel expressed some serious concerns as to the future practical application of these DSD Regulations. While the evidence available so far has not established that those concerns negate the conclusion of prima facie proportionality, this may change in the future unless constant attention is paid to the fairness of how the Regulations are implemented.
In this regard, reference has been made to the following main issues:
1) The difficulties of implementation of the DSD Regulations in the context of a maximum permitted level of testosterone. The Panel noted the strict liability aspect of the DSD Regulations and expressed its concern as to an athlete’s potential inability to remain in compliance with the DSD Regulations in periods of full compliance with treatment protocols, and, more specifically, the resulting consequences of unintentional non-compliance.
2) The difficulty to rely on concrete evidence of actual (in contrast to theoretical) significant athletic advantage by a sufficient number of 46 XY DSD athletes in the 1500m and 1 mile events. The CAS Panel suggested that the IAAF consider deferring the application of the DSD Regulations to these events until more evidence is available.
3) The side effects of hormonal treatment, experienced by individual athletes could, with further evidence, demonstrate the practical impossibility of compliance which could, in turn, lead to a different conclusion as to the proportionality of the DSD Regulations.
The CAS Panel was restrained in its task, due to the strict framework of the arbitration, to solely determine whether the DSD Regulations were invalid or not. It nevertheless considered it appropriate to highlight its concerns with aspects of the DSD Regulations which arose from the submissions and evidence adduced by the parties during the CAS proceedings. The CAS Panel strongly encouraged the IAAF to address these concerns when implementing the DSD Regulations, bearing in mind that the DSD Regulations are a “living document”, as asserted by the IAAF itself.
Indeed, it may be that, on implementation and with experience, certain factors may be shown to affect the overall proportionality of the DSD Regulations, either by indicating that amendments are required in order to ensure that the Regulations are capable of being applied proportionately, or by providing further support for or against the inclusion of particular events within the category of Restricted Events.
The full award with reasons remains confidential for the moment but an executive summary will be published by the CAS shortly. The CAS award may be appealed at the Swiss Federal Tribunal within 30 days.
This article first appeared on EWN : Caster Semenya loses court challenge against IAAF testosterone rules