In recent times, the name Caster Semenya has flooded both mainstream and social media as a result of a recent ruling of the Court of Arbitration for Sports relating to the International Association of Athletics Federations (IAAF) rule regarding Difference in Sex Development in female athletes. Several questions have followed the ruling and a lot of people are raising issues of discrimination against women with higher testosterone levels. However, to aid an easy assessment of the whole situation, knowledge of the person of Caster Semenya and the history of the ruling is required. To this end, this short article would briefly discuss a few things.

Who is Caster Semenya?

A germane question which comes to the mind of a number of people who love majorly other forms of sports and pay little attention to athletics is the question; who is Caster Semenya? Well, Caster Mokgadi Semenya is a South African middle-distance runner and a 2016 Olympic Gold Medalist. She has won a considerable number of medals worth mentioning in the course of her career. These include gold medals at the women’s 800 meters at the 2009 World Championship in Berlin with a time of 1:55.45; also at the 2017 World Championships in London; she also won gold at the 800 meter events at the 2012 and 2016 Summer Olympics in London and Rio de Janeiro respectively. She also won gold at the 2011 World Championships. She is also a silver and bronze medalist from different athletics competitions in general. To say the least, Caster is an athlete of sterling quality and a first rate sports woman. However, in 2009, following her victory at the World Championships, questions were raised as regards her sex as she had a better result than she did within a period of one month. This definitely was the beginning of many gender related issues for Semanya and others like her.

Source: News24

The IAAF Regulations

In 2014 the Indian athlete Dutee Chand brought proceedings before the CAS challenging the IAAF Regulations Governing Eligibility of Females with Hyperandrogenism to Compete in Women’s Competition (the “Hyperandrogenism Regulations”). In July 2015, the CAS delivered an Interim Award partially upholding Ms. Chand’s challenge and suspending the Hyperandrogenism Regulations (CAS 2014/A/3759 Dutee Chand v AFI & IAAF). The ruling found that there was a lack of evidence to prove that testosterone increased female athletic performance and notified the IAAF that it had two years to provide the evidence. Proceeding from that, in April 2018, the IAAF enacted new regulations governing athletes with Differences in Sex Development (popularly referred to as the DSD Regulations which establish new requirements that govern the eligibility of women with certain differences of sex development (“DSD”) to participate in the female classification of a number of events.

Basically, the idea behind the DSD Regulation is to restrict female athletes who have 46 XY DSD. Thus, the regulation only affects athletes who possess the XY chromosomes, which are generally found in male persons. Thus, no athletes with XX chromosomes were subjected to any form of restrictions or eligibility conditions under the DSD Regulations. The DSD Regulations require athletes with 46 XY DSD who have a natural testosterone level of above 5 nmol/L, and who experience a “material androgenizing effect” from that enhanced testosterone level, to reduce their natural testosterone level to within the normal female range (i.e. to a level below 5 nmol/L) and to maintain that reduced level for a continuous period of at least six months in order to be eligible to compete in a Restricted Event at an International Competition. Such reduction can be achieved, according to the IAAF evidence, by the use of normal oral contraceptives.

The Case at the Court of Arbitration for Sports

In June 2018, Caster Semenya and Athletics South Africa filed their respective requests for arbitration at the CAS against the DSD Regulations adopted by the IAAF, claiming that the regulations were discriminatory, unnecessary, unreliable and disproportionate. They requested that the Regulations be declared invalid and void. The IAAF on its part contended that the DSD Regulations do not infringe any athlete’s rights, including the right to equal treatment, but instead are a justified and proportionate means of ensuring consistent treatment, and preserving fair and meaningful competition within the female classification.

However by a majority decision, the CAS Panel dismissed the requests for arbitration considering that the Claimants were unable to establish that the DSD Regulations were “invalid”. The Panel found that the DSD Regulations are discriminatory but the majority of the Panel found that, on the basis of the evidence submitted by the parties, such discrimination is a necessary, reasonable and proportionate means of achieving the IAAF’s aim of preserving the integrity of female athletics in the Restricted Events.

Issues of discrimination and the fairness of the rule

A study of the decision of the CAS Panel would reveal that though the regulations are relatively discriminatory and unfair to Caster Semenya and others like her as they certainly had little or no control over how their biological or physiological makeup evolved to give them attributes of men, without any fault of theirs. Thus, the rule in its entirety is basically discriminatory and unfair to Caster Semenya and even the CAS Panel aligns thus, however, on what the rule seeks to achieve; fair competition. I would like to align myself with the decision of the Panel which held that it is a valid rule as it allows other athletes who do not possess this advantage to compete without fair of losing to an opponent because of such an opponent’s biological or physiological make up.

It is also interesting to note that the rule allows such athletes to come back to the track and compete after “fixing themselves” by taking oral contraceptives which have little or no known side effects. Thus, on one hand, the rule is as well fair to those affected. It is also worth mentioning that not minding the fact that these athletes are currently restricted from competing in some events, while their testosterone levels are as high as stipulated in the regulations, medals which they have won in previous competitions are retained by them without any penalty. It is worth mentioning that though this regulation infringes on Caster Semanya’s right against discrimination based on sex/gender, no right in reality is absolute and this infringement is necessary for the fairness of the sport.

In conclusion, considering the facts of the case before the CAS it is obvious that though Ms. Semenya lost the case, the IAAF has a lot to do in respect of the practical implementation of the DSD Regulations. It is also commendable to state that one of the most important principles of athletics and sports practice generally is fair competition and it that is what this regulation seeks to achieve. It is therefore a commendable regulation, though its implementation affects one of Africa’s greatest female athletes. However, more needs to be done to avoid situations like this so that the implementation of regulations would have little or no, adverse effect on the careers of sports persons.

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