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Caster Semenya’s case against discriminatory testosterone testing, explained

A decision is paving the way for athletes to be forced to take medication, or be banned from competition.

IAAF Continental Cup - Day 2 Photo by Lukas Schulze/Getty Images for IAAF

A new ruling by a governing body of athletics will put unprecedented pressure on athletes with differences of sexual development (DSD). South African runner Caster Semenya’s case against the International Association of Athletics Federations (IAAF) was shot down by The Court of Arbitration for Sport (CAS) on Wednesday, paving the way for athletes to be forced to take testosterone-limiting drugs in order to continue competing.

Semenya, along with other athletes with DSD, will be eligible to compete in a Diamond League meet scheduled for Friday in Doha, but will then need to comply with the IAAF policy, which will require athletes to submit to testosterone tests proving they’re under a newly-mandated threshold.

The decision, which targets Semenya most directly, comes after a decade of hand-wringing, leaks of her medical records, and a years-long study to try to determine if Semenya should be able to continue competing without intervention.

Who is Caster Semenya?

An 800-meter specialist, Semenya began running internationally in 2008 when she competed in the World Junior Championships. The following year, she won gold in the 800 meters at the 2009 World Championships, prompting scrutiny.

The IAAF asked Semenya to take a sex verification test, saying at the time that they were “obliged to investigate” her sex following improvements the runner made that the IAAF said “usually arouse suspicion of drug use.”

While the results of the test were never officially published, the press were told by internal sources in the IAAF that Semenya had the intersex trait, which is defined by the UN Office of the High Commission of Human Rights as individuals who “do not fit the typical definitions for male or female bodies.” These variances can include genital differences and non-binary chromosomal makeup thatdoes not fit the XY-male, XX-female sexual phenotype.

In 2010, the IAAF ruled that Semenya could continue competing. In 2012, she won gold at the London Olympics in the 800m, and followed with a second gold in the same event at the Rio de Janeiro Olympics in 2016. Semenya remains one of the preeminent runners at her distance, and is currently competing in preparation for the 2020 games in Tokyo.

The 2011 IAAF decision and its aftermath.

The first attempts by the IAAF to limit DSD athletes came in 2011 when the federation issued a new ruling on eligibility for “Females with hyperandrogenism.” This stated that DSD athletes would be allowed to continue to compete, provided their tested testosterone levels measured lower than the standard range for a cisgender male.

Semenya competed under the policy during her 2012 medal win in London, but the IAAF ruling had major ramifications for another DSD athlete. Indian runner Dutee Chand was dropped from her country’s 2014 Commonweath Games squad after the Indian Ministry of Sport, citing the 2011 IAAF guidelines on hyperandrogenism, said she was not allowed to compete.

Chand took her case to the CAS in 2015, who overturned the original IAAF ruling, saying there was not enough evidence to support that testosterone levels in DSD athletes had a sufficient effect on athletic performance to justify limiting athletes from competing.

As part of the court’s decision, the IAAF was given three years to gather more evidence to support its hyperandrogenism ruling before attempting to institute it again.

The IAAF institutes a new ruling.

In 2018, the IAAF once again attempted to introduce a new hyperandrogenism policy, this time with the belief that they had the science to back their assertion that testosterone levels had a direct impact on an athlete’s speed. As a result, the federation pushed forward with a new policy that reinforced its gender binary definition of competition, despite popular backing for an alternative definition that would allow DSD and trans athletes to compete in an “open” category under their preferred gender.

The IAAF’s 2018 ruling went further than what the federation proposed in 2011. Instead of requiring athletes with hyperandrogenism to maintain a testosterone level under that of an average cisgender male, it now required female athletes to maintain a testosterone level inside a narrow acceptable range for females.

In technical terms, this meant that instead of needing their testosterone to measure under 10 nmol/L, athletes like Semenya and Chand would need to measure under a threshold of 5 nmol/L to remain eligible. The only way for them to do so is through the use of androgen suppression medication.

Semenya challenges the IAAF.

Following the 2018 IAAF ruling, Semenya took her case to the CAS to challenge the idea that she should need to take medication to continue to compete. Her lawyers argued that “her genetic gift should be celebrated, not discriminated against,” adding that, “her case is about the rights of women who are born as women, reared and socialized as women – [to] be permitted to compete in the female category without discrimination.”

The IAAF argued that it was trying to “create a level playing field in female sport.”

On Wednesday, the CAS sided with the IAAF, saying that the federation’s hyperandrogenism policy could continue. However, the court still had concerns with its implementation. The CAS acknowledged that the policy is discriminatory, and couldn’t guarantee it would be applied fairly.

Semenya didn’t issue a statement following the ruling, instead choosing to respond with a tweet.

What happens next?

Semenya has 30 days to appeal her case to the Swiss Tribunal Courts in the hopes they will overturn the CAS ruling. Otherwise she, and other DSD athletes, will be forced to take androgen suppression medication in order to fall in line with the policy and compete — most notably, at the 2020 Olympic Games in Tokyo.