Caster Semenya vs IAAF: CAS upholds 'discriminatory' DSD regulations to ensure 'level playing field' for female athletes

  • The CAS ruled that the eligibility rules of the IAAF based on 'differences in Sex Development' (DSD) were valid.

  • These regulations are aimed at keeping away from the sport women with high levels of testosterone, in order to maintain a 'level playing field' for women.

  • The decision has come against widespread expectations that the CAS would set aside the new 'gender regulations'.

  • Semenya's timings are sure to take a hit as she will have to reduce and maintain her testosterone levels below 5 nmol/L.

Will the male-female categorization in sport continue in the wake of the Caster Semenya challenge against the eligibility regulations? The suspense was over just past 4 pm IST on Wednesday. The Court of Arbitration for Sport (CAS) through a majority decision (2-1) provided the answer.

It ruled that the eligibility rules of the International Association of Athletics Federations (IAAF) based on "differences in Sex Development" (DSD) were valid. Accordingly, it dismissed the requests from Semenya and Athletics South Africa (ASA) for arbitration in the matter of the IAAF's new DSD regulations that should have come into effect in November last year as per the original schedule.

 Caster Semenya vs IAAF: CAS upholds discriminatory DSD regulations to ensure level playing field for female athletes

File image of Caster Semenya. Reuters/Athit Perawongmetha

The Semenya appeal necessitated a postponement of the implementation of the regulations up to 26 March 2019 and it further got postponed apparently on a request from both sides and a new date was fixed as April end.

The decision has come against widespread expectations that the CAS would set aside the new "gender regulations".

Tweeted Katrina Karkazis, the American bioethicist who headed the activists team in support of Indian sprinter Dutee Chand when she challenged the IAAF's hyperandrogenism regulations in CAS in 2014: "I have spent 8 years enmeshed in research on this issue as well as on T (testosterone) and athleticism and I do not see a basis for this decision. Bravo to Caster and everyone for a courageous fight against a discriminatory regulation. More work to do."

Dutee Chand was the first to approach CAS against the IAAF rules that form the age-old "gender verification rules" became "hyperandrogenism" regulations and still later DSD regulations.

Basically, these regulations are aimed at keeping away from the sport women with high levels of testosterone, matching male levels, in order to maintain a "level playing field" for women.

What is striking in the latest CAS order is, for the first time since the IAAF announced its new eligibility rules in 2018, there is a mention of biological sex in the narrative.

Says CAS in its 1 May release: "The DSD covered by the Regulations are limited to athletes with "46 XY DSD" – i.e. conditions where the affected individual has XY chromosomes. Accordingly, individuals with XX chromosomes are not subject to any restrictions or eligibility conditions under the DSD Regulations."

The CAS panel also found that the DSD Regulations are "discriminatory" but on the basis of the evidence submitted, "such discrimination is a necessary, reasonable and proportionate means of achieving the IAAF's aim of preserving the integrity of female athletics".

The debate so far had concentrated on the fact that sex is not binary, not just XX (female) and XY (male) but there could be several other variations. Normally, some of such variations refer to XXY and XYY patterns.

The Semenya camp had always contended that sex cannot be determined conclusively by using any yardstick since there were several variations. They also contended that testosterone is not the determining factor in improved sports performance and if at all someone was having higher levels of "naturally-occurring" higher levels of testosterone that could only be compared to similar natural benefits that some athletes were born with, like for example the wing-span of Michael Phelps or the height of Usain Bolt or tall basketball players.

This has not found favour with the CAS panel. The IAAF has argued that athletes with "46 XY DSD" have "testosterone levels well into the male range (7.7 to 29.4 nmol/L; normal female range being below 2 nmol/L). The DSD Regulations require athletes with 46 XY DSD with a natural testosterone level over 5 nmol/L, and who experience a "material androgynizing effect" from that enhanced testosterone level, to reduce their natural testosterone level to 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. Such reduction can be achieved, according to the IAAF evidence, by the use of normal oral contraceptives," the release stated.

It would seem this panel might not have gone into what the previous panel (Dutee Chand case) had ruled in terms of the necessity for the IAAF to show male advantage for hyperandrogenic athletes ranging up to 10-12%. We cannot be sure about it since this panel has not released the whole verdict, possibly because it could be containing the names of some of the athletes whose improvement the IAAF might have analysed.

Semenya's timings are sure to take a hit as she will have to reduce and maintain her testosterone levels below 5 nmol/L. Before Chand's victory against the IAAF in 2015, Semenya reportedly went through a hormone suppression therapy. In 2014, her best timing in 800m was 2:02.66, almost seven seconds slower than the awe-inspiring 1:55.45 with which she won gold in the World Championships in 2009.

Following the Chand ruling, Semenya's timings improved dramatically. From September 2015, she remained unbeaten through 29 finals in the 800m. Her 1:54.25 in Paris 2018 happens to be the fourth best on the all-time lists. While some felt that Semenya could break Czech Jarmila Kratochvilova's world record of 1:53.28 set in 1983, Wednesday's ruling means that Kratochvilova's record might just stay unbroken for the foreseeable future.

Read Firstpost's detailed explainer about how the Caster Semenya case against the IAAF on hyperandrogenism will have wider ramifications in athletics, here

What's IAAF's rationale behind the controversial hyperandrogenism rules and why are some runners backing it?

Why are IAAF's critics claiming its hyperandrogenism rules are racist and unfair?

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Updated Date: May 01, 2019 22:16:39 IST