News 18th November 2020

Caster Semenya to appeal to ECHR

Caster Semenya is to challenge the DSD Regulations of World Athletics in the European Court of Human Rights (ECHR), her lawyers told Reuters, confirming an intention they announced in September. The Swiss Federal Tribunal (SFT) declined to set aside a ruling of the Court of Arbitration for Sport (CAS) dismissing Semenya’s challenge to the DSD Regulations in September, as it didn’t violate principles of public order on Swiss public policy grounds.

The United Nations, its Human Rights Council and the World Medical Association (WMA) have already expressed concern about the Eligibility Regulations for the Female Classification (Athletes with Differences of Sex Development) to use the DSD Regulations’ full name. In September 2018, the Human Rights Special Procedures body of the United Nations wrote to Sebastian Coe, President of World Athletics. In July this year, the Human Rights Council urged UN Member States to prohibit the enforcement of the DSD Rules. In May last year, the WMA reiterated its advice to physicians not to implement the DSD Rules.

The DSD Regulations mandate that athletes with one of five differences of sex development (DSDs) cannot compete in events run between 400m and one mile in World Athletics’ female category, if their endogenous (natural) testosterone levels are above 5nmol/L and have an ‘androgenising effect’ (i.e. if that testosterone is taken up by their androgen receptors and boosts their physiology). World Athletics’ argument, which emerged during the CAS case, is that 46 XY DSD athletes develop an unfair advantage over XX karyotype women due to the continued action of ‘elevated’ testosterone on their XY karyotype physiology from puberty onwards.

At CAS, World Athletics argued that the advantage held by ‘biologically male’ 46 XY DSD athletes in the Restricted events is so ‘unfair’ as to be ‘category defeating’, to borrow its terminology. As such an advantage manifests itself over a significant amount of time, in combination with training, diet and other variables, it cannot be accurately measured. In support of its proposition that endogenous testosterone at levels above 5nmol/L allowed 46 XY DSD athletes to develop an unfair advantage over XX karyotype females over time, the IAAF relied on ‘evidence from the field’ at CAS.

World Athletics has always argued that it cannot disclose this research because it might identify athletes with a DSD. It is understood to involve a list of medals won by 46 XY DSD athletes in the restricted events as evidence that they are able to develop an unfair advantage. As some athletes won several medals in several events, it is understood that the representation of 46 XY DSD athletes may have been inflated.

World Athletics argues that the DSD Regulations are inclusive, as they allow ‘biologically male’ 46 XY DSD athletes to compete in the Restricted Events in its female category. In order to reduce the advantage that testosterone may have allowed 46 XY DSD athletes to develop through its action on their physiology combined with exercise and training over time, the DSD Regulations require them to medicate their natural (not ‘elevated’, as World Athletics claim) hormonal balance in the present. ‘Biologically male’ 46 XY DSD athletes must lower their endogenous (natural) testosterone levels to below 5nmol/L for six months before competing in World Athletics’ restricted events in its female category, and they must maintain testosterone levels at below 5nmol/L in order to continue to competing. 

In its Briefing Notes on the DSD Regulations, World Athletics suggests that in order to reduce their testosterone levels, 46 XY DSD athletes should either take a contraceptive pill designed for female XX karyotype athletes; have a monthly injection of a GnrH agonist; or should have their testes surgically removed. ‘Importantly, lowering testosterone in one of these ways is the recognised ‘gender-affirming’ standard of care for any individual (athlete or not) who is 46 XY but has a female gender identity’, read the Notes, which make the assumption that a 46 XY DSD athlete would want to change their gender identity.

The CAS also heard evidence that adjusting the natural hormonal balance of 46 XY DSD karyotype athletes made 46 XY karyotype people ill – not least, from Semenya herself. This is because testosterone, the only natural hormone driving the XY karyotype endocrine system and which supports their physiology, has been seriously curtailed. The same effect cannot be replicated in the XX karyotype, since three hormones drive the endocrine system and a much lower baseline level of testosterone (0.06 nmol/L to1.68 nmol/L) exists in the first place. 

This is why testosterone deficiency is a recognised as a medical condition that can make XY karyotype people unwell. DSD athletes are XY karyotype, as the IAAF made clear during its arguments against Semenya’s appeal at the CAS. Testosterone deficiency isn’t recognised as a condition in XX karyotype athletes.

The SFT wasn’t required to consider any of the above issues, as it can only consider whether the CAS Decision violates ‘widely recognised principles of public order’ on Swiss public policy grounds. The SFT has only reversed a decision based on a a violation of Swiss public policy once in 30 years. The Sports Integrity Initiative has asked Caster Semenya’s legal representatives for more information about her case at the ECHR. 

• For analysis of the Swiss Federal Tribunal’s Decision, click here.
• For analysis of the CAS Decision, click here.
• For analysis of World Athletics’ decision not to participate in a debate about Semenya’s case at Play The Game 2019, click here.

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