The Court Called the Caster Semenya Ruling ‘Necessary’ Discrimination

After a years-long court battle, Caster Semenya, a South African runner with atypically high testosterone levels, has been handed a choice: forcibly alter her body's natural hormones, or give up international competition.

The ultimatum follows a recent ruling from the Court of Arbitration for Sport (CAS), an organization that adjudicates Olympic sports controversies. In its ruling, the Court sided against Semenya, in favor of a forthcoming policy by the International Association of Athletics Federatons (IAAF) that mandates medical intervention for so-called “differences of sex development” (DSD) individuals—a term that effectively refers to intersex women. The regulations require athletes like Semenya to artificially lower their testosterone levels to align with IAAF maximum limits prescribed for females. The policy will go into effect on May 8.

Citing a biological, “binary divide” between men and women, the CAS admitted in a statement that the ruling is "discriminatory," but called it "necessary" to "ensuring fair competition in female athletics in certain events and protecting the 'protected class' of female athletes in those events." As for Semenya's response, she posted a tweet that essentially amounts to a "no comment."

The IAAF celebrated the ruling on its website, informing DSD athletes that they “have one week (7 days) from today (1 May 2019) to reduce testosterone levels to within the regulation levels so are encouraged to initiate their suppressive treatment as soon as possible.” Affected athletes will then have their blood drawn and tested.

Scientists, sports professionals, and intersex advocates have described the ruling for what it is: a move that attempts to control the bodily autonomy of intersex athletes and discriminates against women whose bodies do not conform to the kind of impassable “binary divide” that the IAAF has imagined.

The DSD policy represents the tortured lengths international sports associations will go to ensure a vague ideal of "fairness" in sports—after decades of doping concerns, the IAAF is now ruling that some athletes must alter their body's natural hormones just to compete.

Dr. Silvia Camporesi is a bioethicist at King’s College who has previously written in defense of Semenya’s right to compete without altering her natural hormone levels. In an interview with VICE, Camporesi stated that the CAS verdict is “weird,” in part because the Court admitted that “there is not enough evidence to support the regulations.” Camporesi notes that the CAS decision was made based on theoretical ideas about potential advantages, “not on evidence of a concrete advantage,” citing, “problems in replicability and false positives.”

Still, she notes, even if one could produce concrete evidence to prove that heightened testosterone translates into material advantage for women and intersex athletes, such evidence would not “settle the question of whether an advantage would be unfair,” because the CAS has failed to consider “all the other biological and genetic variations that confer an advantage in performance.”

"We can't eliminate all forms of variation and make things perfectly fair—and we should be circumspect of attempts to try, particularly when they infringe on people's rights."

As Emily Brehob, a 26-year-old intersex person with Swyer Syndrome, a condition that prevents the body from producing hormones put it: “Saying that an intersex woman with higher testosterone levels can't compete with other women is ultimately not very different from saying that a woman over a certain height can't compete with other women.”

"We can't eliminate all forms of variation and make things perfectly fair—and we should be circumspect of attempts to try, particularly when they infringe on people's rights," Brehob added.

Sport historian and Olympian Bruce Kidd, who has served as an adviser to intersex athlete Dutee Chand, agrees. “Higher natural testosterone levels and intersex conditions are the result of genetic [variations]... not unlike many other genetic [variations] that some athletes have and may have conferred advantaged in sports,” Kidd told VICE. “It’s completely unfair to single out these genetic [differences] but not the others.”

“Forcing someone to lower their testosterone, particularly when they've done nothing intentional to raise it, infringes on their right to bodily autonomy,

As Kidd sees it, the targeting of intersex athletes is even more unjust in the context of the lack of interest in balancing the financial barriers to Olympic competition: “We should remember that the most significant factors associated with the Olympic medal tables are personal and national income,” Kidd said. “No effort is ever made to balance those incredible advantages.”

The ruling is also an affront to the advancement of intersex people at large, many of whom have historically been forced to undergo unnecessary medical interventions to modify aspects of their sex in order to conform with cultural ideas about what sort of bodies men and women are meant to possess. Intersex children, in particular, are routinely, forcibly subjected to surgical and hormonal intervention by physicians and family

As an intersex person, Brehob feels that it's unethical to put an intersex person in a position to have to make the decision to alter their hormones for any reason other than that individual’s personal desire to do so, while the ruling normalizes the idea that an organization like the IAAF has more right to control over an intersex person's body than the person themself.

“Forcing someone to lower their testosterone, particularly when they've done nothing intentional to raise it, infringes on their right to bodily autonomy,” Brehob said.

According to the CAS, the DSD regulations might present a “practical impossibility” for compliance, because the policy sets an upper limit on testosterone, and it is unclear how athletes could be continuously monitored, or even ensure that their bodies comply with the new rule. Additionally, the side effects of long-term hormonal suppression are still unknown, notes the CAS.

Despite recognizing these flaws, the Court has allowed the IAAF to move forward with the DSD policy, although it did suggest that the IAAF defer implementing the policy “until more evidence is available” to support the idea that intersex individuals with a higher level of testosterone have an advantage. The Court cited “the difficulty to rely on concrete evidence of actual (in contrast to theoretical) significant athletic advantage.”

Despite the Court’s recommendation that the IAAF withhold implementing the DSD regulations until non-theoretical evidence can be produced, the new policy will go into effect in just a few days. Caster Semenya has 30 days to appeal the ruling.