(New York) – The Court of Arbitration for Sport (CAS) has dismissed South African athlete Caster Semenya’s challenge to international athletics regulations which would see her compelled to undergo medical treatment or be forced out of competition. The regulations, issued by the International Association of Athletics Federations (IAAF), require women athletes, like Semenya, with higher than typical natural testosterone levels to have unnecessary medical interventions if they wish to compete. The three-judge panel, by a 2-1 vote in the case brought by Semenya and Athletics South Africa, found that while the new regulations discriminate against Semenya, they are not “invalid.”
“Women with intersex variations have the same right to dignity and control over their bodies as other women, and it’s deeply disappointing to see CAS uphold regulations that run afoul of international human rights standards,” said Liesl Gerntholtz, deputy executive director for program at Human Rights Watch. “In scrutinizing and excluding women competitors based on their natural hormone levels, the IAAF regulations stigmatize, stereotype, and discriminate against all women.”
The April 2018 regulations target women athletes with some intersex variations, sometimes called “differences of sex development” (or “DSD”), that cause higher than typical natural testosterone levels. The regulations deny these women the right to participate in the female category for running events between 400 meters and the mile unless they submit to invasive testing and medical intervention to reduce their testosterone levels. There is no clear scientific consensus that women with intersex variations who have higher than typical natural testosterone have a performance advantage in athletics.
The regulations, the Eligibility Regulations for the Female Classification (Athlete with Differences of Sexual Development), require women who have a naturally occurring blood testosterone level higher than five nmol/L to undergo medically unnecessary hormone therapy to reduce their testosterone levels if they want to qualify to compete in the female category. If women refuse to be tested or to undergo hormone therapy, the regulations state that they may only compete in the male category or in a hypothetical, not-yet-created intersex category – both of which would expose women’s private characteristics to the global public.
Intersex traits or variations are naturally occurring sex characteristics that vary from social norms of what is considered “female” or “male.” They appear in up to 1.7 percent of the population. The vast majority of people born with intersex variations are healthy and do not need to undergo medical treatment unless they wish to alter their bodies.
In dismissing Semenya’s case, the CAS judges recognized that the regulations are discriminatory but, failing to apply international human rights standards, deemed them a “proportionate” response to IAAF’s concerns about eligibility for female categories. Nevertheless, they expressed “serious concerns as to the future practical application” of the regulations, regarding how IAAF would assess individual athlete’s compliance with the regulations, recognizing the questionable evidence of actual significant athletic advantage for women athletes with higher than typical natural testosterone in certain events, and flagging the issue of possible side effects of hormonal treatment on these athletes. The judges noted that further assessment of these concerns may result in these regulations being deemed invalid in the future.
On March 22, 2019, the United Nations Human Rights Council passed a resolution noting that the IAAF regulations “are not compatible with international human rights norms and standards, including the rights of women with differences of sex development” and expressing concern at “the absence of legitimate and justifiable evidence for the regulations.” The Human Rights Council also found “no clear relationship of proportionality between the aim of the regulations and the proposed measures and their impact.”
In October 2018, United Nations experts on health, torture, and women’s rights wrote to the IAAF about the regulations:
The regulations reinforce negative stereotypes and stigma that women in the targeted category are not women—and that they either need to be ‘fixed’ through medically unnecessary treatment with negative health impacts—or compete with men, or compete in ‘any applicable intersex or similar classification’, which can call into question their very definition of self.
The IAAF had issued earlier regulations in 2011 that were very similar to the 2018 regulations. The Indian runner Dutee Chand successfully challenged the regulations at the Court of Arbitration, leading to a 2014 judgment that the 2011 regulations “discriminate against women and discriminate based on a natural physical trait.” The court rightly noted that, “such discrimination is, unless justified, contrary to the Olympic Charter, the IAAF Constitution and the laws of Monaco” and stated that “if the [testosterone] regulations cannot be justified, specifically as a reasonable and necessary response to a legitimate need, then they should be declared invalid.”
In issuing new guidelines in response to the 2014 judgment, the IAAF included an explanatory note saying that “persecution or campaigns against athletes simply on the basis that their experience does not conform to gender stereotypes are unacceptable” and that the regulations are not “intended as any kind of judgement on or questioning of the sex or the gender identity of any athlete.”
The 2011 IAAF regulations relied on deeply problematic stereotypes such as having a “deep voice” to identify athletes with intersex variations. The 2018 regulations that Caster Semenya has unsuccessfully challenged omit such stereotypes but make no mention at all of the criteria for identifying these athletes – leaving the system open for abuse, Human Rights Watch said.
Following an earlier examination of her eligibility based on a suspected intersex variation, Semenya stated: “I have been subjected to unwarranted and invasive scrutiny of the most intimate and private details of my being.”
“For women athletes with atypical testosterone levels, being compelled to undergo a medical examination can be as humiliating as it is medically unnecessary,” Gerntholtz said. “Identifying relevant athletes through observation and suspicion means women athletes’ bodies are open to public scrutiny, while no such inspection is applied to men.”