Caster Semenya's ruling by the IAAF highlights a difficult question for sport's governance professionals

The issues surrounding sex and gender in sport have given those in sporting governance significant challenges for quite some time. World athletics governing body, the IAAF, has suffered significant criticism for the way that it's dealt with these in relation to Caster Semenya's case, with three global organisations that promote women's sport having written to the IAAF, to say its rules for intersex athletes are "discriminatory" and "enforce gender inequality."

As noted by ICSA's Policy Officer, not for profit, Craig Beeston, on page 29 of this issue, gender, diversity and inclusion are all big topics to be addressed both currently and in the future, by sports governance officials. Developments in science, inclusive thinking and social norms mean that gender is no longer the binary consideration it once was, and is causing quite the headache for officials who strive to achieve fairness without being discriminatory.

Semenya's case has thrust the issues, which have been bubbling under the surface for some time, into the limelight with international sport's highest court, the Court of Arbitration for Sport (Cas), ruling that it was acceptable for some athletes to be banned from competing unless they took medication to reduce their testosterone levels.

Not a binary matter

The case was brought by Semenya, the South African Olympic champion, who has long faced speculation and controversy about her sex. In 2009 the IAAF asked her to take a sex verification test to ascertain whether she was female. At the time the IAAF says it was "obliged to investigate" after she made improvements of 25 seconds at 1500m and eight seconds at 800m – "the sort of dramatic breakthroughs that usually arouse suspicion of drug use." The sex test results were never officially published, but speculation abounded and some results were leaked in the press and widely discussed.

The leaks resulted in unsubstantiated claims about Semenya having an intersex trait. Although the exact nature of Semenya's genetic makeup is unknown to the public, what is accepted is that she is hyperandrogenic (she has a much higher level of testosterone than most women). The IAAF has defined athletes like her as having "a difference of sexual development (DSD)". Their hormones, genes and reproductive organs may be a mix of male and female characteristics, which can lead to higher levels of testosterone - a hormone that increases muscle mass, strength and haemoglobin, which affects endurance. People with a DSD do not develop along typical gender lines.

In 2018, the IAAF introduced regulations forcing such athletes to reduce their testosterone levels if they wished to compete in certain events. It was this which Semenya challenged in court and lost. She has since insisted that she will carry on racing in middle distance events (for which the IAAF does not require a reduction in hormone levels), but that she will not take testosterone-reducing medication.

Discriminatory, but fair

Cas themselves are clear that the ruling offers no simple, or perfect, solution, describing the IAAF rules as "discriminatory". But, adding that such discrimination is "necessary, reasonable and proportionate."

The ruling offers much food for thought. Most people accept the case for separate male and female categories in sporting events but how 'male' and 'female' is determined is not as clear cut as one may assume. Various methods of categorisation have been mooted and trialed, from self identification, physical examination, to genetic testing. None have provided a universally satisfying conclusion.

The IAAF's decision to use functional testosterone levels to determine which side of the male/female line one falls on, is merely the latest way. In many respects it makes complete sense. After all, generally speaking testosterone levels in women are, in most circumstances, lower than in men.

As always the issue becomes complicated, in the cases which don't fall into such neat boxes – such as Semenya's. While all male elite athletes lie in the high testosterone band and most female athletes fall into the lower testosterone class, a few women, such as Semenya (who identifies firmly as female), have elevated levels that take them into the "male" category.

The IAAF suggests that excluding such women, or forcing them to reduce testosterone levels, helps create a level playing field and protects the integrity of women's sports. It is this reasoning which led Cas to accept the IAAF regulations as "necessary, reasonable and proportionate", even if they are discriminatory.

Broader implications

It's easy to see where this ruling has the potential to have further application – and controversy. The arguments raised about hyperandrogenic athletes are strikingly similar to those which have raged about trans athletes. Dame Kelly Holmes, Paula Radcliffe, Sharron Davies and Martina Navratilova have all faced backlash after raising similar concerns about the fairness of transwomen competing in
female sports.

Although the contexts are very different, after all Semenya was born and raised as a female – only discovering her heightened testosterone levels once she was already an adult and established athlete – the debate is a familiar one.

Radcliffe questioned whether it was "fair for a biological man to compete alongside women" after a heavy push from trans activists, who argue that anyone who identifies as female should be allowed to compete in women's sport, for sport to be more inclusive. Transgender athletes, such as the cyclist Rachel McKinnon, were born and lived as males but have transitioned to living as women, have attracted criticism from some feminist groups who believe they have a biological advantage and run the risk of taking hard-fought for opportunities away from female-born athletes.

The latest International Olympic Committee regulations mirror the findings in the Semenya case, allowing transgender women to participate, so long as they have undertaken hormone therapy to reduce their testosterone level to below a set figure for at least a year.

Both positions are fraught with difficulties in balancing concerns of marginalised groups. The term 'fairness' is frequently used by both sides. But isn't any type of biological advantage in sport always unfair? Not just in terms of testostrone levels, but in terms of height, strength, or speed? Swimmer Michael Phelps produces half the lactic acid of a typical male athlete. Lactic acid causes fatigue. This therefore means that his endurance levels are higher than other athletes.

Unlike Semenya, Phelps' genetic advantage has been presented as a gift, and there's never been a suggestion that he should have to take medication in order to reduce his natural levels of lactic acid. One may argue that this is unfair, but is having to artificially change his biology any fairer? There are no easy answers but these are the tough questions that sport's governance professionals must continue to struggle with. 

Kirsty-Anne Jasper is Deputy Editor of Governance and Compliance

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