3rd June 2019

Swiss Court orders IAAF to suspend application of DSD Regulations to Semenya

The Federal Supreme Court of Switzerland has ordered the International Association of Athletics Federations (IAAF) to suspend the application of the DSD Regulations to Caster Semenya until 25 June, which will mean the South African is theoretically free to run in the 800m. The news was confirmed by Semenya’s lawyer, Gregg Nott of Norton Rose Fulbright, in an interview with South African radio station 702 (below).

“The Swiss Federal Supreme Court today ordered the IAAF to suspend, immediately, the implementation of the DSD Regulations with regards to Caster”, said Nott, who added that Semenya’s team had filed an application to suspend the application of the DSD Regulations to her alongside her appeal against the Court of Arbitration for Sport’s (CAS) decision. “They have given the IAAF until the 25th of June to respond to this suspensive effect […] she can run the races she’s been told she cannot run.”

The Eligibility Regulations for the Female Classification (Athletes with Differences of Sex Development) – to give the Regulations challenged by Semenya their full name – are limited in scope. They cover athletes with one of five listed DSDs competing in international events run between 400m and one mile in the IAAF female category, if their 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). The DSD Regulations only apply to XY women:

• That have one of five DSD conditions outlined by the IAAF in Article 2.2 of the Regulations;
• with naturally occurring testosterone above 5 nmol/L that compete in the Restricted Events;
• That have sufficient androgen sensitivity for naturally occurring testosterone at levels above 5 nmol/L to have a ‘material androgenising effect’.

XY females covered by the Regulations must:

• Be recognised by law as either female or intersex;
• must use hormonal contraceptives to reduce testosterone levels to below 5 nmol/L for six months prior to competing;
• must maintain naturally occurring testosterone at below 5 nmol/L.

If a XY female athlete covered by the DSD Regulations fails to take these steps, they will be ineligible to compete in the international Restricted Events, or to set world records. However, they would be eligible for all non-international events, male category events, or any ‘intersex’ events offered in the future.

The DSD Regulations that exist today (PDF below) are not the ones that Semenya challenged, as the CAS allowed the IAAF to amend them after the hearing. The original DSD Regulations covered seven, rather than five, DSD conditions. The amended Regulations carve out Congenital Adrenal Hyperplasia (CAH) from their scope, as well as 3β‐hydroxysteroid dehydrogenase deficiency.

By carving out conditions that can cause elevated testosterone in XX athletes, such as CAH, there are questions as to whether amended Regulations unfairly target XY females. It is argued that the implication behind this change is that XX females are real women, whilst those with XY chromosomes are not.

In addition, it is argued that the data the IAAF has used to support the DSD Regulations is unreliable. Some of the IAAF’s supporting evidence asserting a performance advantage of above 9% for athletes with one of the DSDs covered by the Regulations comes from analysis of athletes with CAH, which is no longer covered by the Regulations.

Also referenced as evidence of the performance advantage enjoyed by athletes with a DSD is the 2017 Study mentioned above, which scientists have argued is based on unreliable data. The 2017 Study uses data from the Daegu 2011 and Moscow 2013 IAAF World Championships, where significant doping is alleged to have taken place. This could further undermine the reliability of the data. There may also be questions about whether informed consent was sought from athletes for their samples to be used in this way, since they were collected for anti-doping analysis.

There are also questions over whether the Regulations, which assert that they seek to regulate an unfair performance advantage that the IAAF puts at above 9%, are equitable. To give an extreme example, Finnish cross country skier Eero Mäntyranta won two Gold medals at the Innsbruck 1964 Winter Olympics. It is understood that Mäntyranta was born with a genetic mutation that increased the oxygen carrying capacity of his red blood cells by 25% to 50%. The argument is that if Semenya’s advantage is regulated, then other genetic advantages should also be regulated.

The IAAF told the BBC that it has yet to receive notification of the decision from the Swiss Federal Supreme Court. Athletics South Africa (ASA) has confirmed that it will lodge a separate appeal with the Swiss Federal Court as soon as it receives the final decision from the CAS. To date, the CAS has only published a statement announcing its decision and a six page Executive Summary. The full 165-page decision has yet to be published.

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