The case concerned the decision of the International Association of Athletics Federations (‘IAAF’) to introduce regulations policing the eligibility of some athletes with a ‘Difference in Sexual Development’ (‘DSD’) from competing in certain female athletic events. The regulations are generally known as the DSD Regulations.

Athletics, like many other sports, separates competitors by sex; primarily based on the observed athletic advantage that typical males have over typical females. The IAAF (as well as many other sporting federations) has always worked on the assumption that in order to encourage and protect female participation in the sport, and to ensure fair competition, separate male and female competition categories are necessary.

Historically, eligibility to compete in the female category has been policed in various different ways (including infamous ‘nude parades’ and chromosomal testing (Krech, 2017))[1]. However, growing scientific recognition that biological sex is not, in fact, binary (not all people fit within the traditional male or female categorisation) and growing societal acceptance of an individual’s right to choose their own gender identity has meant that it is increasingly difficult to maintain and justify regulations based on such a binary divide. It has been suggested that as many as 1 in 1500 of the population could have some sort of ‘difference’ from typical sexual development, a figure that is similar to the occurence of cystic fibrosis or Down’s syndrome (Berghausen, 2011)[2]. On the one hand regulations potentially present discriminatory barriers to competition and on the other there is the perceived danger that some athletes competing in the female category may have an unfair advantage over typical females.

The IAAFs solution was to focus on what it perceived to be the underlying explanation for the difference in typical male and female athletic performance; the hormone testosterone. In 2011, the IAAF introduced the Hyperandrogenism Regulations, which sought to prevent athletes competing in any events if they had testosterone levels above a certain limit more typical of males (subject to certain exceptions where an athlete’s condition meant that they could not make use of the testosterone). These regulations were successfully challenged at the CAS by Indian athlete Dutee Chand. The CAS determined that there was insufficient scientific evidence to demonstrate that athletes with testosterone levels higher than the permitted limit did, in fact, gain a significant performance advantage. The regulations were suspended and the IAAF were permitted more time to bring forward additional evidence of the significance of the performance advantage.

Instead of providing evidence to support the Hyperandrogenism Regulations, the IAAF chose to introduce a different set of regulations, the DSD Regulations, which it believe could be supported by the new evidence it had. In short, the DSD Regulations state that ‘Relevant Athletes’ – athletes with certain DSDs (where the difference in development is such that the individual has the male ‘Y’ chromosome) who have a circulating (and useable) level of testosterone that higher than typical female athletes without a DSD – must reduce and maintain their testosterone levels to within the normal female range (below 5nmol/L) if they wish to compete in certain Restricted Events (track events from 400m to one mile) at an International Competition.

Caster Semenya and Athletics South Africa challenged the IAAFs decision to introduce the DSD regulations at the Court of Arbitration for Sport, primarily on the basis that they were discriminatory.

The case raises all kinds of interesting issues about discrimination, the sporting ideal of fair play, human rights and the freedom of sporting federations to act in the perceived interest of their sport. The full (redacted) judgment can be accessed here. A summary of the judgment can be found below. A link to an article about the approach from a ‘good governance’ perspective written by one of the University of Gloucestershire Law team is also included at the end of the blog.

Arguments:

Caster Semenya

Ms Semenya argued that the DSD Regulations are discriminatory, unnecessary, unreasonable and disproportionate. She challenged the basis on which the DSD Regulations were being introduced. She argued that the need for the DSD Regulations – to ensure fair competition in the female category – was not supported by sufficiently clear empirical, scientific data and that there is no evidence to show that Ms Semenya, or other athletes with relevant DSDs, benefited from a significant performance advantage over female athletes without a relevant DSD. Ms Semenya also argued that the selection of Restricted Events was arbitrary and appeared to only apply to the competitions in which Ms Semenya excelled, whilst not including other events were there was, on the IAAF’s own evidence, similar levels of performance advantage.

Moreover, ‘Relevant Athletes’ would be classified by subjective assessments informed by socially constructed views of femininity. Ms Semenya advanced strong objection to the IAAF’s use of the term ‘biologically male’ to describe Ms Semenya who was born, raised and identifies as female.

Ms Semenya also contended that the mental and physical effects of having to comply with the DSD Regulations were significant and disproportionate.

The IAAF

The IAAF’s position is that the DSD Regulations are necessary to 1) ensure a level playing field within the female classification in athletics and 2) to protect female sport. The IAAF stressed that they were not intending to make assertions as to Ms Semenya’s legal sex or gender identity and, in essence, that the ‘sporting sex’ of an individual is a separate question which can be objectively answered.

The IAAF argued that a female athlete with a DSD that results in higher circulating (and useable) levels of testosterone provides those athletes with a significant performance advantage over female athletes who do not have such a DSD. Further, that this advantage is such that typical female athletes could not hope to win and that this would therefore affect future participation of females in the sport.

It was also argued that the DSD Regulations should be considered progressive as they would allow athletes with female gender identities, but with a different biological sex i.e. male, to compete within the female classification.

The Panel

The key issues that the Panel had to consider were as follows:

Whether the DSD Regulations were discriminatory
Whether the restrictions introduced by the DSD Regulations are lawful, that is, are they necessary, reasonable and proportionate to achieve their aim?

The Panel held that the DSD Regulations were prima facie discriminatory for several reasons, including that they only affect a “subset of the female/intersex athlete population” and did not impact on male athletes at all. However, the Panel found by a majority that the restrictions within the Regulations were lawful to the achievement of the legitimate objective of fair competition within the female category.

In brief, and based on the evidence put before them, the Panel decided that the DSD Regulations were:

Necessary – the panel accepted the evidence presented by the IAAF (despite the concerns raised by Ms Semenya) that the performance advantage enjoyed by athletes with relevant DSDs was potentially significant and, therefore, to ensure fair competition in certain events the regulations were necessary.
Reasonable – the scope of Restricted Events could be rationally justified as there was evidence of performance advantage and a high proportion of Relevant Athletes (athletes with DSDs) who participated in those events.
Proportionate – the side effects that could potentially be experienced by Relevant Athletes female athletes as a consequence of taking the hormonal treatment that would be required to reduce testosterone levels is not different in nature to the side effects experienced by millions of other XX women taking oral contraceptives.

The Panel did, however, express serious concerns about the practical application of the DSD Regulations. Ms Semenya raised the issue of unintentional spikes in testosterone levels even when taking hormonal medication and complying with the Regulations. Ms Semenya experienced these unintentional fluctuations when undergoing the hormonal treatment that was required under previous Regulations, which were later suspended by the Dutee Chand decision. Those Regulations required Ms Semenya to keep her testosterone levels below 10nmol/L. The Panel recognized the potential difficulty of complying with the DSD Regulations and the burden that would be placed on athletes to monitor fluctuations and demonstrate that unintentional fluctuations did not impact an athlete’s performance.

The Panel noted that the DSD Regulations would therefore have the potential to be disproportionate if their application cannot be implemented fairly by Relevant Athletes.

In text references:

[1] Krech, M, To be a Woman in the World of Sport: Global Regulation of the Gender Binary in Elite Athletics (2017) Berkeley J. Int’l L.

[2] Berghausen, M, Note and Comment, Intersex Employment Discrimination: Title VII and Anatomical Sex Nonconformity, 105 NW. U.L. REV. 1281, 1286 (2011)

For a more in depth consideration of the introduction of the DSD Regulations from a ‘good governance’ perspective see:

Cooper, J, ‘Testosterone: The Best Discriminating Factor?’

Semenya v IAAF; Fair play, discrimination and athletics

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