Court of Arbitration’s verdict on Caster Semenya creates more questions than it answers

“Sometimes it’s best to react with no reaction”

In those few simple words, Olympic champion Caster Semenya maintained the grace that has underscored both her athleticism and the vile treatment she has been subjected to ever since she first became a world champion at the tender age of 18.

Semenya posted the message on her social media profiles after the Court of Arbitration for Sport (CAS) ruled in a landmark case against her on Wednesday.

Semenya was fighting measures imposed by the International Association of Athletics Federations (IAAF) that compel “hyperandrogenic” athletes – or those with “differences of sexual development” (DSD) – to lower their testosterone levels if they wish to compete as women.

In a media statement issued on Wednesday, a three-judge panel said that while they have several concerns and note that the regulations are “discriminatory...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”.

The ruling, just two days prior to the start of the IAAF’s Diamond League season, means that Semenya might not be seen on the circuit in her preferred 800m event. Her legal team confirmed that she is considering an appeal which must be filed within 30 days which will be heard by the Swiss Federal Tribunal.

CAS’s verdict came as surprise. But it further underpins the enormously complex issue and is another notch in the IAAF’s belt of attempting to police what it means to be a woman.

Supporters of the regulations, including world record holder in the marathon, Paula Radcliffe, have previously said that a ruling in favour of Semenya would signal the “death of women’s sport”. Some with limited understanding have attempted to disguise their ignorance as concern, claiming that the regulations are in place to protect vulnerable young women. As if an athletics Antjie Somers is about to go around picking up rural girls and priming them for athletic stardom. As if athletic performance and excellence rest on one single genetic advantage.

Most simplistically, that suggestion is not just an insult to Semenya and the hard work she has put in to achieve what she has, but it is also deeply sexist and contradictory. For what the IAAF and others so frequently lauded in athletes like Usain Bolt, they despise in Semenya.

But having fast-twitch muscle fibres is, however, not a so-called “protected” category in elite level sport. Much of the arguments in favour of the IAAF have centred around just that “protection” of a “category”.

Defining people in neat little boxes, however, is far more complicated than previously thought. CAS agrees with the IAAF that there should be a binary divide between male and female in sport, but it is not under the court’s jurisdiction to decide what that binary definition is. The governing body has changed from chromosomes to hormones over the years. The regulations, which are now binding, mean that the IAAF continues to ignore the existence of biological diversity.

While the ruling will no doubt be celebrated as a win back at IAAF HQ, read between the lines and it becomes apparent that the governing body might have won on a technicality – not because its science is sound.

The court’s framework was restricted, and it only had to decide whether the DSD Regulations were invalid or not. In legalese, that could never be the case since there is an advantage to having naturally higher levels of testosterone. It was not up to the court to determine what exactly constitutes fairness.

However, it did note problems with the evidence presented by the IAAF. Never mind the fact that the IAAF will not for the foreseeable future apply these regulations to the two events in which its own study showed the largest advantage (hammer throw and pole vault), CAS has concerns about forcing the application of the regulations to the 1500m and the 1-mile events, too.

One of the three main concerns listed by CAS in its verdict is 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 court added that it suggests the IAAF “defer the application of the DSD Regulations to these events until more evidence is available”.

It is up to the IAAF to decide whether to comply with the court’s suggestion. If it does, it means Semenya will be free to compete without taking performance limiting supplements.

However, since the regulations are published as a “living document”, the IAAF can change things as it sees fit. That in itself presents a troubling set of rules.

Of deeper concern is the human rights element. Indeed, this case has been so unprecedented that in March 2019, the United Nations Human Rights Council adopted a resolution in branding the IAAF rules “unnecessary, humiliating and harmful”.

In a statement, CAS noted concerns over 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”.

For some, that concern comes too late. A study published in 2014 revealed that when the regulations were previously implemented, four unnamed female athletes from developing countries underwent violent surgeries – including sterilisation and genital mutilation.

It seems that in their desperate pursuit of being the authority on defining womanhood, the IAAF has lost sight of its own constitution which states that one of its purposes is to “preserve the right of every individual to participate in Athletics as a sport, without unlawful discrimination of any kind undertaken in the spirit of friendship, solidarity and fair play”.

It also flouts the Olympic charter, the document which underpins the very essence of sports.

“The practice of sport is a human right.”

Perhaps the so-called protection that is needed is not one that defines categories, but rather protection from the wolves that have been hounding women ever since it was established. DM