2nd August 2019

A skilful poker player never shows their hand…

The Court of Arbitration for Sport’s (CAS) decision to reject Caster Semenya’s challenge to the Differences of Sexual Development (DSD) Regulations promulgated by the International Association of Athletics Federations (IAAF) is a watershed moment. The issue has exploded beyond the relatively small world of sports regulation because it encompasses a pertinent issue that many in modern society are often asked to broach. What does it mean to be ‘male’ or ‘female’, and is it correct to but people into such binary boxes?

Everybody has a view. It cuts to the quick of what it means to be ‘human’. Especially if one falls outside of the binary ‘male’ and ‘female’ boxes. 

The IAAF argues that it is being inclusive, but some of those that fall outside of binary gender boxes hold such an unfair advantage in female events run between 400m and one mile (the Restricted Events) that it is necessary to exclude them from international competition. The IAAF argues that the advantage held by ‘biologically male’ athletes in the Restricted events is so ‘unfair’ as to be ‘category defeating’, to borrow its terminology.

The DSD Regulations permit such athletes to compete in the Restricted Events if they lower their naturally produced (endogenous) testosterone to below 5 nmol/L. Dosing somebody with extra (endogenous) testosterone is doping, which is why the anabolic, steroidal hormone has featured on the Prohibited List of the World Anti-Doping Agency (WADA) since the first edition was published in 2004. The body has something extra which it didn’t have before. 

DSD athletes are not doping. Elevated testosterone is normal for their 46 XY DSD physiology.

As such, whether the approach taken by the IAAF in the DSD Regulations in requiring 46 XY DSD athletes to reduce their endogenous testosterone is the correct one has polarised opinions. Scientists, including expert witnesses at the CAS, disagree on research produced to prop the Regulations up. The fact that the redacted CAS judgment (PDF below) is 163 pages long perhaps stands as testament to the difficulty of the debate. The purpose of this article is not to assess the whether the judgment is scientifically correct, as this is an issue for scientists to debate. It is to explain why the CAS ruled the way in which it did.

The CAS decision

Considering what it was asked to arbitrate, the CAS made the only decision available to it. The IAAF is not arguing that elevated endogenous testosterone acts as a kind of doping agent, boosting the on-field performance of athletes with a DSD by such an ‘unfair’ amount that it is necessary to exclude them from the Restricted Events. It is arguing that DSD athletes hold a performance advantage over XX female athletes due to their ‘biologically male’ development from puberty onwards. I have termed this a ‘legacy advantage’, since the IAAF contention is that the advantage manifests itself from puberty onwards.

As explained in the CAS ruling, the IAAF had modified the DSD Regulations to exclude XX athletes from their scope. The amended Regulations carve out Congenital Adrenal Hyperplasia (CAH) from their scope, as well as 3β‐hydroxysteroid dehydrogenase deficiency. The IAAF argues that it did this because there is little chance that somebody with either of these conditions could compete in elite sport, due to the adverse health effects associated with them.

Whether or not this is accurate is another issue for scientists to debate. Irrespective of this, the exclusion of XX athletes allowed the IAAF to argue that the purpose of the Regulations is to mitigate any advantage held by ‘biologically male’ athletes in the Restricted Events covered by the Regulations. It could not make this argument when XX athletes were included, as they originally were when the DSD Regulations were published on 23 April 2018.

“Sport isn’t trying to assess the performance advantage that any particular individual has against the field”, explains Professor Doriane Coleman of Duke University, an Expert Witness at the CAS in the Semenya case. “It’s saying that we want to feature female athletes and champions just like we feature male athletes and champions, and because males have a competitive advantage over females in general, the only way to do this is to separate men from women on the basis of sex, or at least according to some determinative sex-linked trait.

“In this period throughout society, it’s understood that it’s the right thing to do to try to include people who are intersex and transgender according to their gender identity rather than on the basis that they are male or female bodied. And so sport, which is all about the body in the first instance, and then all about the difference between the male and female body in terms of serving its two categories, is faced with this policy conundrum: how do we condition the inclusion of 46 XY people – whether they are transgender or have DSDs – in the female category in a way that’s not category defeating.”

It is very difficult (one might argue impossible) to measure a ‘legacy’ of performance advantage due to the action of elevated testosterone on an individual’s physiology over time, in percentage terms. As such, many of the arguments about whether the IAAF has proven a degree of performance advantage simply fall away. The only performance advantage debate that matters is whether, by medicating 46 XY DSD athletes, the IAAF can induce a reduction in performance that compensates for any legacy of advantage that ‘biologically male’ athletes hold over XX females. 

The legacy of elevated testosterone’s effect on the physiology of XY athletes was the IAAF’s trump card. It was not expected by the claimants at the CAS (see below). According to the IAAF, Caster Semenya fits its own definition as ‘biologically male’, as she has one of the five DSDs outlined in the DSD Regulations, and competes in the Restricted Events. 

Semenya’s status as a 46 XY DSD athlete was recently confirmed by the Swiss Federal Supreme Court when it revoked a supra-provisional suspension of the application of the DSD Regulations to Semenya, meaning that she will not be able to defend her 800m title at the Doha 2019 IAAF World Championships. ‘Mokgadi Caster Semenya is an “athlete concerned” within the meaning of Article 2.2 of the DSD Regulations’, reads its 29 July interlocutory order (available here in French).

The IAAF argues that it is not classifying DSD athletes as male, as it allows them to compete in the Restricted Events in its female category, under conditions. However, unless DSD athletes reduce their testosterone levels to 5 mol/L, the DSD Regulations exclude them from international competition in the Restricted Events. 

Article 2.6(b) of the Regulations (PDF below) specifies that DSD Athletes who do not comply will be eligible to compete in the IAAF’s male category. It is not hard to see how that might be construed as a determination of gender.

“The goal isn’t any longer categorically to exclude males who identify as women from competing in the women’s category”, explains Coleman. “It’s also not to evaluate the performance advantage of any particular male-bodied individual in relation to the female field. Rather, it’s to condition their inclusion on having testosterone levels that are capable of being produced by ovaries. This is the policy compromise that keeps the playing field more level than not.”

Disconnect

Some may have already spotted a disconnect in the DSD Regulations. Essentially, the IAAF is arguing that in DSD athletes, elevated testosterone has a physiological effect post puberty, which can lead to development of similar physiological advantages to that which a male has over a female. It is a developmental legacy advantage from which DSD athletes can benefit, due to the effect that elevated testosterone levels can have on their physiology, combined with the right exercise and diet, over time. 

However, if DSD athletes wish to compete in the Restricted Events, they must take medication to reduce their testosterone levels to below 5 mol/L. On the face of it, this appears to be medicating the natural hormonal balance of DSD athletes in response to an unmeasurable legacy advantage. It could be argued that the IAAF is not regulating the same advantage as the one which it asserts that DSD athletes hold. In other words, it could be argued that it is medicating athletes in order to reduce a separate developmental, and natural, performance advantage.

Given that the IAAF is now arguing that DSD athletes are ‘biologically male’, is an approach based on medicating them to reduce any advantage they might hold the correct one? “Asking male bodied athletes to wind down their male-linked advantages isn’t pointless at all”, argues Coleman. “A second tier male can still beat the best females in the world. 1:54 or 1:55 in the 800 meters is a strong U20 time for male-bodied athletes, but as run by a male-bodied athlete, it doesn’t justify ten years of dominance at the highest levels on the world stage.  

“If the goal is for the podiums to feature the very best females in the world and then the very best males in the world, you don’t achieve that by putting male-bodied people on both podiums. When Caster wound down her male-linked advantages, she went from running around 1:55 to running around 2:05. I get that some of that drop may have been related to her understandable discomfort with the hormonal transition. And I have tremendous respect for her as a person and for all that she has accomplished, especially off of the track. But all you have to do is look at results lists to know that times in the vicinity of 2:05 are basically the female equivalent of times in the vicinity of 1:55, and we don’t win on the international stage with those times.”

Questions have been raised about whether the above analysis is accurate. Semenya’s time of 1:55.45 represents her season best in the 800m for 2009, and should therefore only be compared with her season best in other years. In 2010, the year in which she began testosterone suppression, her season best was 1:59.65. In 2011, it was 1:56.35; in 2012 it was 1:57.23 and in 2013 and 2014, she argues her times suffered due to ‘weight gain caused by the medication and a significant knee injury’ (para. 79 of the CAS judgment). However, despite this, her 2013 season best was 1:58.92 and in 2014 it was 2:02.66.

This doesn’t support the proposition that ‘winding down’ Semenya’s ‘male-linked’ advantages reduced her time over 800m by ten seconds, as asserted by Coleman. Semenya’s best time pre-treatment was 1:55.43 and her best time during treatment was 1:56.35. However, it is also important to point out that Semenya was treated under the IAAF’s Hyperandrogenism Regulations, its previous iteration of rules in this area. They required her to reduce endogenous testosterone to 10 nmol/L, and not 5 nmol/L as stipulated in the DSD Regulations. As such, one could argue that the performance gap should be larger, however such an argument is entirely theoretical.

Mindful of concerns in this area, including that the IAAF may be targeting Semenya precisely because she is fast, the CAS Panel asked the IAAF to demonstrate that the DSD Regulations are ‘reasonable and proportionate’. As such, one might argue that the IAAF needs to demonstrate:

1. That the effect of lowering endogenous testosterone to 5 mol/L on the performance of DSD athletes is equivalent to removing the legacy advantage held by DSD athletes in the Restricted Events;
2. That lowering somebody’s natural hormonal balance will not seriously damage their health.

So performance advantage does come into the equation of what the CAS Panel considered relevant, but only as a secondary concern. In short, the CAS Panel took the view that the IAAF must show that DSD athletes hold a legacy advantage in the Restricted Events, and that its chosen regulatory method of medicating athletes reduces that advantage by an appropriate and fair amount. This is where things get complicated (as if they weren’t already).

DSDs and performance advantage

As mentioned, the IAAF’s contention is that 46 XY DSD athletes have a legacy advantage through elevated testosterone, which allowed them to develop an XY physiology as opposed to an XX physiology. It helps to split this question into parts. 

The first question concerns whether XY (male) athletes have an advantage over XX (female) athletes. The second concerns whether any legacy advantage held by 46 XY DSD athletes is unfair. If that advantage is judged to be unfair, the third question involves assessing whether lowering the natural testosterone of 46 XY DSD athletes reduces that legacy advantage by a fair amount to all concerned. A fourth question involves weighing up the IAAF’s need to protect its female category against any egregious impact on the health of DSD athletes caused by requiring them to lower endogenous testosterone to 5 nmol/L.

1. Male performance advantage

There is no contention that male athletes have an advantage over female athletes, as world record times in most events prove. As 46 XY DSD athletes are ‘biologically male’, the IAAF argues that they hold a similar advantage. However measuring such a ‘legacy’ advantage is problematic, as previously mentioned.

“Except for PAIS [partial androgen insensitivity syndrome], there’s no indication that there is anything about the other listed DSDs that makes the affected athletes different from XY males for sports purposes”, argues Coleman. “Athletes with these conditions have all of the same sport-related traits as a male person. It’s fine to hypothesise that they are somehow ‘in between’ in terms of the competitive advantages that flow from those same traits, but there’s just no evidence of this.”

The CAS accepts that quantifying the ‘legacy advantage’ that 46 XY DSD athletes hold over XX females is impossible. It saw its task as examining all the evidence in order to ascertain whether any advantage was significant and if so, it was so significant that it would subvert fair competition in the IAAF’s female category in the Restricted Events. It found that it was, but how it came to this conclusion is frustratingly complicated.

2. Unfair advantage

The IAAF argues that the 10% to 12% advantage that males have over females, mentioned in the CAS Panel ruling on Dutee Chand’s challenge to the IAAF’s Hyperandrogenism Regulations, is not relevant to the Semenya case. In the Chand ruling, the CAS Panel said that in order for such discriminatory Regulations to stand as proportionate in their aim, the IAAF had to prove the level of advantage. It said that if that were less than 10% to 12%, the IAAF had to demonstrate that the advantage is significant enough to warrant exclusion of athletes from the female category.

‘In order to justify excluding an individual from competing in a particular category on the basis of a naturally occurring characteristic such as endogenous testosterone, it is not enough simply to establish that the characteristic has some performance enhancing effect’, reads the CAS Panel judgement in the Chand case. ‘Instead, the IAAF needs to establish that the characteristic in question confers such a significant performance advantage over other members of the category that allowing individuals with that characteristic to compete would subvert the very basis for having the separate category and thereby prevent a level playing field. The degree or magnitude of the advantage is therefore critical.’

The evidence does not go so far as to equate, or correlate, the level of testosterone in females with a percentage increase in competitive advantage’, continues the CAS Panel in Chand. ‘The evidence does not, for example, establish an advantage of the order of 12% rather than, say 1% or 3%. Once the degree of competitive advantage is established, the IAAF would then need to consider, if the degree of advantage were well below 12%, whether that justified excluding women with that advantage from the female category.’

“The 10%-12% was a red herring”, argues Coleman. “It was a way to say, ‘We separate men from women in athletics because males are stronger and more powerful than females.’ Nobody was thinking in percentage terms when they separated male and female athletics. Nor were they thinking that the separation wouldn’t be justified if the percentages were lower than 10%-12%. They were thinking that they wanted to give equal opportunities to males and females and to feature both the best men and the best women on the podium, and that the only way you could get there is by separating them.”

On 24 July 2015, the CAS Panel suspended the Hyperandrogenism Regulations and gave the IAAF two years to file evidence as to the degree of performance advantage enjoyed by DSD athletes, otherwise the Regulations would be revoked. In March 2017, the IAAF submitted the below Study, led by Director of the IAAF’s Health and Science Department, Stéphane Bermon. It found that women with the high free testosterone held a competitive advantage in the 400m, 400m hurdles, 800m, pole vault, and hammer throw. Among the 1,332 female observations in the study, nine had a DSD.

There has been much gnashing of teeth and wailing over inaccuracies in this Study. In addition, it involved samples taken at the Daegu 2011 and Moscow 2013 IAAF World Championships where athletes admitted to significant doping in another Study, the publication of which the IAAF arguably attempted to block. In addition, concerns have been raised about whether the IAAF had the consent of athletes to use samples taken from athletes for anti-doping purposes for research into testosterone levels. However, these concerns were dismissed by the CAS Panel in the Semenya case.

After submitting the Bermon Study, the IAAF submitted a new set of Regulations to CAS on 29 September 2017. These were the original version of what would become the Eligibility Regulations for the Female Classification (Athletes with Differences of Sex Development) – the DSD Regulations, as they have come to be known. 

Chand initially argued that the IAAF had not complied with the CAS Panel judgment in her case, as it had filed evidence supporting revised Regulations (DSD Regulations) and not the original Regulations (Hyperandrogenism). A January 2018 CAS ruling confirmed that if the IAAF replaced the Hyperandrogenism Regulations with the DSD Regulations, then the proceedings in Chand’s case would be terminated.

Chand didn’t object to this. As a sprinter, the DSD Regulations are not applicable to her. She recently won the 100m at the World University Games in Napoli.

Bermon’s 2017 Study found that female athletes with elevated testosterone enjoyed a performance advantage of between 1.78% and 4.53% in five athletics disciplines. As mentioned, in Chand the CAS required the IAAF to consider whether such an advantage was so unfair that it justified excluding ‘women’ from its female category. 

The DSD Regulations sidestep this issue. They do not exclude ‘women’, as they only apply to what the IAAF terms ‘biologically male’ 46 XY DSD athletes. Also, as the IAAF argues, they are inclusive by allowing 46 XY DSD athletes to compete in the Restricted Events, so long as they reduce their natural testosterone levels to below 5 mol/L for a month before competing. There is debate over whether the IAAF’s definition of 46 XY DSD athletes as ‘biologically male’ is accurate, but the key point is that the CAS Panel decided it didn’t have to make such a determination.

In the Semenya ruling, the nature of the argument changed. In Chand, the CAS required the IAAF to demonstrate the actual performance advantage conferred by elevated endogenous testosterone. In Semenya, the CAS required the IAAF to demonstrate that its rules fairly compensate for a legacy advantage held by what the IAAF terms as ‘biologically male’ athletes. This is why the 10% to 12% advantage mentioned in Chand doesn’t matter. 

This is a hard concept to get your head around. So perhaps it is helpful to split it into parts. Firstly, the IAAF is arguing that male athletes hold a performance advantage over female athletes. Secondly, it is arguing that 46 XY DSD athletes hold an unfair performance advantage over XX females in the Restricted Events due to testosterone’s effect on their physiological development. Finally, it is arguing that in order to compromise and let 46 XY DSD athletes compete fairly, a way must be found to reduce any advantage held by 46 XY DSD athletes.

“If we measure an individual’s circulating testosterone at any particular moment, we can’t tell if they’re faster or slower than the next person”, clarifies Coleman. “But we can tell whether they’ve gone through male puberty and, if so, that they’ve retained the competitive advantages associated with that transition. Circulating testosterone is a snapshot or evidence of what your body has experienced throughout its lifetime. We know what male testosterone levels do in puberty, and we know what they do in the moment. And so we can say that they’re an accurate way of assessing whether you have the legacy and current advantages associated with those levels.

“Testosterone is the primary driver of the male performance advantage, but it’s not the only one. Some male linked performance advantages aren’t testosterone related. For example, from the age of five or six boys typically throw differently than girls. This has to do with morphology and isn’t testosterone based in the first instance. If you do go through male puberty, there are other structural changes that are related to testosterone that don’t go away. So asking transgender and DSD athletes to reduce their testosterone levels as a condition of inclusion in women’s events is essentially a compromise. It’s not going to eliminate all of the legacy advantages.”

As such, the level of advantage is only important in that the IAAF has to show that by medicating 46 XY DSD athletes so that they can compete in the Restricted Events, it is reducing an actual advantage rather than unfairly handicapping them. The Regulations are not concerned with reducing the level of an on-field advantage, but with medicating 46 XY DSD athletes in order to compensate for physiological advantages that they have developed over time due to continued exposure to elevated testosterone from puberty onwards. This is a point that many have misunderstood.

As Professor Handelsman, the main author of a second Study used by the IAAF in support of the DSD Regulations admits in an email exchange (see tweet below), the IAAF accepts that any attempt to prove on-field advantage will fail. ‘Any arguments they tried with evidence to actually quantify the advantage would collapse instantly’, writes Ross Tucker, an Expert Witness at the CAS in the Semenya case. ‘In fact, their evidence was so ridiculous that they actually show that in 17 out of 22 events, testosterone makes no difference to performance. They prove their own model wrong – I called this “the testosterone paradox” at the trial. Testosterone does not discriminate – in practice, or in theory. In their own model. Yet the policy does, to certain events only, which creates this weird internal inconsistency that should have undermined this policy, if not the theory.’

Yet the DSD Regulations assert that due to their development as a ‘biologically male’ XY person, athletes with one of five DSDs hold such an unfair advantage in events run between 400m and one mile that they must be excluded from international female competition. As outlined above, measurement of a legacy advantage is impossible. As also shown above, the IAAF’s own scientists have concerns that any measurement of on-field advantage may be doomed to failure. The IAAF even argues that such an advantage has not stood out in the Restricted Events before, because DSD athletes to date have not been good enough!

But none of the above actually matters. This is because the IAAF convinced the CAS Panel that DSD athletes regularly dominate over biological females, who have no chance of winning, validating its claim that it needs to regulate this area. 

As such, it argues, it is justified in promulgating the DSD Regulations in order to protect its female category from being overrun. At this year’s Partnership for Clean Competition (PCC) conference, Paula Radcliffe argued that unless the IAAF is allowed to regulate this area, DSD athletes will dominate female competition and coaches may seek out girls with a DSD in order to win.

How the IAAF convinced the CAS Panel remains – frustratingly – subject to speculation, as details were redacted. “Paragraphs 320, 321, 322, 533, 537 allude to this evidence, but the details were redacted because they include confidential medical information about athletes who aren’t involved in the case”, explained Professor Coleman. “The same confidentiality concerns that caused CAS to redact this evidence prevent anyone involved with the proceedings from sharing it publicly.

“What we can say most generally is that for decades, DSD athletes have been an issue at the highest levels of sport. The CAS Panel had the specifics. There are several reasons the errors in the first Bermon Study weren’t an issue at the end of the day. One was the data on the historical impacts of DSD athletes. These data are what they are, and they are devastating. They certainly affected the weight of the case.

“The real disagreement was where it belonged, on the proportionality point. It wasn’t on the science.”

The IAAF also argued that 46 XY DSD athletes have similar haemoglobin concentrations to XX female athletes who had been doping with erythropoietin (EPO). It also argued that a 5.7% performance decrease in athletes that underwent testosterone suppression is evidence of the logic behind its methods. 

However, some of this evidence is understood to have been based on three of four young athletes who were told, ahead of the London 2012 Olympics, that a gonadectomy (removal of undescended testicles) would be likely to lower their testosterone levels and allow them to compete in the IAAF’s female category. The four athletes were also given feminine remodelling surgery that had nothing to do with this. Although doctors working for the IAAF suggested the surgery as an option, the IAAF did not require the athletes to take that option.

As the four athletes underwent a traumatic surgical experience, whether their drop in performance was solely due to testosterone suppression is debatable. Also, it is not known why the IAAF only used evidence from three of the four athletes on which surgery was performed. 

On the basis of this evidence, the CAS Panel concluded that the advantage that 46 XY DSD athletes hold in the Restricted Events is so unfair that the IAAF has a legitimate aim in preventing them from lining up alongside XX females. Its chosen method of doing this is to require them to reduce endogenous testosterone levels to below 5 mol/L, which it showed affected performance. Part of its evidence showing the effect on performance involved the three young athletes referred to above. Another part involved Joanna Harper, a 48 year old medical physicist and transgender athlete who suffered a performance reduction and very few ill effects from testerone limiting medication.

3. Health & proportionality

It is understood that Harper’s karyotype (46 XY) is almost identical to Semenya’s (46 XY DSD). However at 28, Semenya is younger than Harper, and had a very different experience when taking testosterone suppressing medication.

The IAAF has previously argued that the experience of 46 XY athletes who were required to reduce their testosterone is not relevant to the DSD Regulations. However, in the Semenya case, it argues that for sporting purposes, ‘individuals with 5-ARD [one of the DSDs listed in the Regulations] are biologically indistinguishable from males without a DSD and have been shown to dominate in sport over “biological females” who, the IAAF asserts, have no chance to win when competing against such “biologically male” athletes’. 

Since it has clarified that the DSD Regulations apply to athletes that are ‘biologically indistinguishable’ from males, I respectfully disagree. The health complications suffered by 46 XY athletes are now relevant to arguments over the proportionality of the DSD Regulations.

Like Harper, Kristen Worley is a 46 XY transgender athlete who – unlike Harper – suffered health complications when forced to lower her testosterone levels in order to compete in female cycling. Sloan Teeple is a 46 XY male who suffered health issues after being diagnosed with testosterone deficiency. He competed whilst waiting four years before being granted a therapeutic use exemption (TUE) for testosterone. Perhaps their cases should have been considered alongside Harper’s, ‘for the sake of fairness and balance’, to borrow the IAAF’s words.

Sloan Teeple explains the role of testosterone in the XY karyotype…

Testosterone is understood to be the primary driver for protein synthesis in the XY karyotype.“Testosterone provides the overall foundation for male health”, explained Teeple, who is also a Doctor recognised as a specialist in low testosterone. “It affects many different organ systems. The most famous or notorious has to do with sexual function and libido. The other area is the physical aspect, comprising bone strength, muscle strength – all of that relies on testosterone. Also, metabolism – i.e. the body’s ability to continue to burn fat. It keeps the metabolism going.”

“Then there is the mental aspect”, he continues. “A man’s energy level and sense of well-being is tied to testosterone. A lot of the symptoms that men present to me in my office are either low libido, poor erections, poor sexual function, or they are terribly fatigued, low energy, lack of motivation. Other things people notice are poor sleep, and it can even effect urination – how they empty their bladder. As I am a urologist, I see that a lot. Irritable mood is also common – it can make men kind of grumpy. All of these are typical symptoms of low testosterone.”

“Studies have been done in the US where they have used the VA [veterans] hospital population involving over 50,000 men that have low testosterone”, explains Teeple. “They found out that men with low testosterone are at greater risk from heart attacks and strokes. Mortality rates go up.”

The CAS Panel agreed that potential health concerns are an issue, but ruled that these didn’t outweigh the IAAF’s need to regulate this area. ‘The majority of the Panel considers that the side effects of hormonal treatment, while significant for each athlete who suffers from them, are not sufficient to outweigh the matters identified by the IAAF in support of the DSD Regulations’, reads its judgment. ‘The IAAF should, however, take notice of the Panel’s concerns’.

Whether the IAAF will do so remains to be seen. The CAS Panel also raised concerns regarding the application of the DSD Regulations to the 1,500m and mile, urging the IAAF to consider deferring the application of the Regulations to these events until more evidence is available. The IAAF has considered this request, but decided to ignore it.

Paradox

Many issues remain with the DSD Regulations that have not been discussed in this article. These include:

• Article 3.2 and 3.3 of the Regulations place an enormous amount of power in the hands of the IAAF Medical Manager, who is the only person who may initiate an investigation into an athlete under the DSD Regulations under ‘reasonable grounds’. Concerns have been raised that pressure may be put on him to conduct ‘witch hunts’ of athletes who appear ‘male’. 
• The IAAF has clarified that more Restricted Events may be added in the future, which would widen their scope beyond the current narrow remit;
• Although the IAAF asserts that cases will be treated confidentially, there is a question over whether this is possible in cases where a 46 XY DSD athlete decides not to comply with the DSD Regulations.

To clarify the first point. Athletes will apply pressure for investigations into competitors that they suspect of being male. The media will scrutinise anyone who doesn’t fit a ‘traditional’ definition of what it is to be female. The IAAF will not be responsible for ‘witch hunts’, but it will be pressured to conduct them. In my opinion, to assume otherwise is naive.

To clarify the third point. Any athlete who does not comply with the DSD Regulations will not be eligible for international competition. Although their case may have been handled confidentially, if a top athlete doesn’t appear at international events, this will lead to speculation that they have a DSD. In addition, Article 2.6 of the DSD Regulations clarifies that the IAAF will not recognise and World Records at national level set by 46 XY DSD athletes that do not comply with the DSD Regulations. Such an eventuality would immediately identify an athlete who choses not to comply with the DSD Regulations as having a DSD.

But given what it was asked to consider, the CAS Panel’s decision in Semenya’s case shouldn’t come as a shock to anyone. The only surprise, perhaps, was the shift in focus by the IAAF to framing the DSD Regulations as protecting female competition by excluding ‘biological males’ from the Restricted Events. That is a proposition against which it is hard for anyone to argue.

The DSD Regulations have a very narrow remit. They apply only to international events run between 400m and one mile and allow DSD athletes to compete, under conditions. They are inclusive, as they do not exclude athletes. Irrespective of whether you think that the IAAF is right to regulate this area in this way, it should be commended for progress made in attempting to deal with this difficult issue fairly.

However, a paradox perpetuates at the heart of the DSD Regulations. The IAAF is arguing that due to testosterone’s action on their physiology from puberty onwards, DSD athletes develop a performance advantage over XX athletes. To compensate for that advantage, it is asking them to take testosterone limiting medication that is not designed for their XY physiology. It would appear that it is medically handicapping them for a legacy advantage they have developed over time.

Harper is one of four athletes mentioned in this article that have experience of the effects of reduced testosterone on the XY karyotype – and she is the only one that didn’t report serious health issues. This should ring alarm bells.

The CAS didn’t do a deep dive on this point, dismissing its own concerns about the health implications of the Regulations and conflating the experience of XX women taking oral contraceptives with that of Semenya, an XY woman. ‘The Panel accepts the Claimants’ evidence that the use of oral contraceptives to reduce testosterone levels can cause a range of unwanted side effects’, reads the CAS decision. ‘The evidence of Ms. Semenya was, of its nature, anecdotal but real. However, it is not possible for the Panel to conclude that all of the symptoms that she encountered while attempting to reduce her levels of testosterone were due to the medication, or that they could not otherwise be controlled, or that they would continue, or that other athletes […] would experience exactly the same side effects (different women react differently to different forms of oral contraceptive), or that another another form of oral contraceptive, if prescribed, would result in the same side effects. 

‘As to the social, mental and psychological problems, these have not been shown to be attributable simply and exclusively to the use of oral contraceptives. Further, the evidence did not establish the length of time that the symptoms occurred and whether they could all be attributed directly to the taking of the medication.’

How one might show that social, mental and psychological problems were directly attributable to taking oral contraceptives was not considered. The CAS is an arbitration body. Because of this and because of a nebulous concept known as the ‘specificity of sport’, it also didn’t have to consider whether the DSD Regulations comply with international legal norms. This didn’t help Semenya.

According to the European Commission, the specificity of sport ‘refers to the inherent characteristics of sport which set it apart from other economic and social activities, as recognised in the amended Treaty of the European Union in 2009’. The Treaty on the Functioning of the European Union (TFEU) states that the European Union ‘shall contribute to the promotion of European sporting issues, while taking account of the specific nature of sport, its structures based on voluntary activity and educational function’.

This gives sport wriggle room in terms of compliance with international treaties and conventions. ‘The IAAF is a private body, not a state body’, it argued at the CAS. ‘It is therefore not subject to human rights instruments such as the UNDHR or the ECHR. The IAAF has, however, committed itself to the principle of equal treatment and non-discrimination.’

An appeal against a CAS arbitration award can only be conducted on very narrow grounds. ‘The Swiss Federal Supreme Court further points out that the its powers of review in cases of international arbitration is very limited and, as a general rule, only involves examining whether the contested decision is compatible with fundamental principles of public order’, reads its recent statement reversing a supra-provisional order to suspend the application of the DSD Regulations to Semenya, after hearing the IAAF’s arguments. ‘It stresses that this also applies in the field of sport and that the Swiss Federal Supreme Court is by no means a “Supreme Court for Sports”, which could examine the matter freely’.

Taking these things together, the CAS can only rule on whether the IAAF’s rules are justifiable, and the Swiss Federal Supreme Court can only rule on whether the correct procedure has been followed – it cannot freely review a CAS decision. The CAS Panel accepted that the DSD Regulations are discriminatory and potentially harmful to health, but argued that such discrimination is necessary to protect its female category. The Swiss Federal Supreme Court has already confirmed that it doesn’t consider Semenya’s appeal against the CAS decision as well founded. It would be a huge surprise if following this assessment, it upheld it. 

Other athletes – such as Claudia Pechstein and Kristen Worley – have had success from challenging sporting rules outside of sport’s arbitration system. Perhaps Semenya would have had more success by going down that route. 

The DSD Regulations today are not the ones that Semenya initially challenged. Their focus has narrowed and has shifted to ‘biologically male’ athletes. The CAS was asked if the IAAF is correct to require ‘biologically male’ athletes to lower their endogenous testosterone in order to compete in the Restricted Events in its female category. 

In effect, it was asked to make a judgement on whether it is right to keep male bodied athletes out of female sport. Many female athletes agree that the IAAF is right to do this.

Like it or not, the IAAF has won this battle. It has convinced the CAS Panel that due to the action of elevated testosterone on their physiology from puberty onwards, 46 XY DSD develop a significant performance advantage over XX females. It has also convinced the Panel that such athletes have historically dominated certain female events and as such, it is fair to medicate them in order to induce a performance disadvantage in order to compensate for this. And it looks likely that the Swiss Federal Supreme Court will support the CAS judgment.

The decision will handicap any future performances by Caster Semenya in the Restricted Events, and will cast doubt on her achievements to date. Semenya has not done anything wrong. She has performed to the best of her abilities, and the fact that she will be medicated if she wishes to compete in the Restricted Events in the future should stick in the craw of anyone who claims to be interested in a ‘level playing field’. 

The IAAF contends that she holds an ‘unfair’ advantage through the boost that endogenous testosterone gave to the development of her physiology from puberty onwards. But there is no level playing field in sport. Some athletes are born with advantages, some are given them through their education and development. Nobody ever takes the starting line with exactly the same chance of winning. As such, for many, quantifying Semenya’s advantage in the Restricted Events as ‘unfair’ remains problematic for many.

Further Reading

Sex In Sport, Doriane Lambelet Coleman: https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=4849&context=lcp

On DSDs, the theory of testosterone, performance the CAS ruling on Caster Semenya

Expert Statement on Testosterone: https://law.duke.edu/sites/default/files/centers/sportslaw/Experts_T_Statement_2019.pdf

Analysis of CAS judgment – introduction: https://twitter.com/i/moments/1143080577530290176

Analysis of CAS judgment – Semenya’s arguments: https://twitter.com/i/moments/1143082628196851712

Analysis of CAS judgment – Athletics South Africa’s arguments: https://twitter.com/i/moments/1143085495011946496

Analysis of CAS judgment – the IAAF’s arguments: https://twitter.com/i/moments/1143834470115696643

Analysis of CAS judgment – the CAS Panel’s considerations: https://twitter.com/i/moments/1144572384558669824

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