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The Court of Arbitration for Sport (CAS) on Wednesday ruled that female athletes like Caster Semenya who have high levels of naturally occurring testosterone will have to suppress those levels in order to compete in specified track events from the 400 meters to one mile.
CAS is an institution based in Lausanne, Switzerland, that resolves legal disputes in sports through arbitration. The ruling was made by a panel of three judges with a vote of 2–1, which deliberated for two months after a five-day hearing in Lausanne.
The decision is a loss for Semenya, 28, who represents South Africa and is an Olympic and world champion in the 800 meters. She has a condition called hyperandrogenism that produces high levels of naturally occurring testosterone. She filed the appeal against the International Association of Athletics Federations (IAAF) new rule, announced a year ago, which sought to restrict women with testosterone levels of five nanomoles per liter (nmol/L) or above from competing against other women in the 400 meters, 400-meter hurdles, 800 meters, 1500 meters, and one-mile—distances the IAAF’s research showed a performance advantage for athletes with “differences of sexual development” (DSD).
“I know that the IAAF’s regulations have always targeted me specifically,” Semenya said in a statement, according to the Associated Press. “For a decade the IAAF has tried to slow me down, but this has actually made me stronger. The decision of the CAS will not hold me back. I will once again rise above and continue to inspire young women and athletes in South Africa and around the world.”
Under the rule, DSD athletes will be required to reduce their testosterone levels below five nmol/L through medication or surgery to remove internal testes (which can produce testosterone), before competing in the 400-meters through the one mile. The court, however, said the IAAF’s research did not support the theory that DSD women gain an unfair advantage in the 1500 meters or mile and that those distances should be reconsidered in the policy.
In a written statement on Wednesday, the IAAF said it is “grateful” to CAS and “pleased” with the support of the “legitimate aim of preserving the integrity of female athletics in the restricted events.”
Testosterone produces muscle mass, and aids in speed and endurance. Women who exceed the level will have to medically reduce their testosterone for a period of six months before competing in the restricted events and maintain the lower levels thereafter. Other options include giving up eligibility or choosing different events.
Semenya’s hormone levels are not publicly known, though her testosterone is assumed to exceed the threshold of the new rule. Her legal team argued that the policy is discriminatory—and that the genetic advantage DSD athletes have is no different than the genetic advantages that other elite athletes enjoy, such a basketball player’s height or a swimmer’s wingspan.
“Her case is about the rights of women such as Ms. Semenya, who are born as women, reared and socialized as women, who have been legally recognized as women for their entire lives, who have always competed as women, and who should be permitted to compete in the female category without discrimination,” her lawyers said, in a statement released in February.
The IAAF, however, has maintained that DSD female athletes have an unfair advantage.
“The revised rules are not about cheating—no athlete with DSD has cheated—they are about leveling the playing field to ensure fair and meaningful competition,” said Sebastian Coe, IAAF president, in a statement released in April 2018.
CAS said that the policies do not infringe on athlete rights.
“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,” according to the statement released by the court.
Few of Semenya’s competitors have publicly expressed opinions on the complicated and sensitive issue, save Francine Niyonsaba of Burundi, who told the Olympic Channel in April that she has the same condition as Semenya and that she, too, views the new rule as discriminatory. Niyonsaba, who is an Olympic and world championships silver medalist in the 800 meters, is a member of the Oregon Track Club, based in Eugene, Oregon.
“I didn’t choose to be born like this. What am I? I’m created by god,” she said. “…I love myself. I will still be Francine. I will not change.”
On Wednesday, in response to the decision, Madeleine Pape, a former 800-meter competitor from Australia who is now a PhD candidate in sociology at the University of Wisconsin, wrote in the Guardian that studying the issue since she ran against Semenya at the 2009 Berlin world championships has significantly changed her views—she called the CAS decision, “wrong.”
“As a sociologist, I have now spent several years immersed in this issue, interviewing elite track-and-field stakeholders from around the world including athletes, coaches, officials, managers, team staff and media personnel,” Pape wrote. “In their accounts I have seen so many echoes of my experience in Berlin: an astounding lack of information, an absence of alternative viewpoints, a fear of the unknown, weak leadership from national and international governing bodies, and a stubborn refusal to dig a little deeper and reflect critically on where their views come from and what biases might be underlying them.”
Others, however, have expressed worry that without restrictions, it could signal “the death of women’s sport,” as Paula Radcliffe, the marathon world record holder, put it last week during an interview with Sky News, adding that agents could start actively recruiting women with hyperandrogenism to compete.
“Will it open the door up there to transgender athletes actually being able to say: ‘You know what, we don’t need to bring our (testosterone) levels down either, we don’t need to have any surgery, we can just identify how we feel and we can come in and compete in women’s sport?” Radcliffe said.
To be clear, Semenya’s case was not about transgender, but it’s been closely watched by other sports and it could change how competition is structured in the future. The BBC asks: Could an “open” category be created, where men and women compete against each other? Or a “protected” division, based on hormone levels instead of gender?
The issue and the landmark decision remain emotionally charged for all involved. In an article for Time in April, when Semenya was named to the magazine’s 2019 Most Influential list, Edwin Moses, a two-time Olympic champion in the 400-meter hurdles, wrote that Semenya “has taught us that sex isn’t always binary, and caused us to question the justness of distributing societal benefits according the ‘male’ and ‘female’ classifications.”
Moses continued, “Ultimately, this incredibility difficult issue is a political one for sport to resolve. But however it is addressed, Semenya will have already made a singular historical contribution to our understanding of biological sex.”
Semenya competed at a new distance on April 25 at the South African championships, lining up for the 5,000 meters, which she won in 16:05.97.