In a judgement many people have been waiting for, the CAS has decided today that the IAAF is allowed to restrict testosterone levels in female runners. I’ve been asked to write something, in response to the Caster Semenya story, so here goes…My personal take is really summed up by the Brock Chisholm quote “No one wins a war. It is true, there are degrees of loss, but no one wins.” I’m going to try to explain why, with a potted history of Semenya’s case put into the wider political context in which it has occurred.
First, let’s look at what facts we know. Caster Semenya came to everyone’s attention in 2009 when, she won gold in the 800m at the World Championships in Berlin. It wasn’t just the win itself, but the fact that Caster had been, unwittingly, “gender tested” before the championships and those results were then leaked after her victory. I’ve never seen the leaked documents, but many people have claimed that they showed Caster had XY chromosomes and internal testes, along with hyperandrogenism. This seems likely true after today’s ruling. However, the IAAF continued to allow Caster to run. She went on to compete in other events, most noteworthy the 2012 London Olympic games where she won silver in the 800m (later upgraded to gold when, Russian athlete, Mariya Savinov was given a lifetime ban for doping violations and stripped of her gold medal).
Caster was not the only DSD athlete to be facing controversy around this time. In 2014, Indian athlete Duttee Chand was banned from competing after she was found to have “unnatural levels of testosterone”. Chand appealed this and the decision was made to allow her to run, along with the Court of Arbitration for Sport suspending the introduction IAAF rules requiring female athletes to take testosterone-suppressing medication. Meanwhile, Caster kept running, winning the 800m gold at the Rio Olympics. This time, however, athletes questioned the fairness of her competing.
Probably as a response to both the Semenya and Chand cases, the IAAF commissioned research, in 2018, which found that female athletes with high testosterone levels have a “competitive advantage”. The research itself has been criticised for its accuracy, impartiality and reliability. Nonetheless, the IAAF introduced new rules, later that year, for female runners with naturally high testosterone. Namely that female athletes, with high levels of testosterone needed to take medication to lower those levels in order to be able to compete. Caster appealed this decision, which brings us to the decision made by the CAS today.
The judgement, which found against Caster, itself is revealing. In order to explain why, it’s necessary to understand what seems to have been argued and what has been decided. The judgement explicitly states that these rules only apply to women with 46XY DSDs. This, therefore, suggests that the CAS sees more than just testosterone at play here. Hyperandrogenism can occur in 46XX women too, such as CAH, but also not just those with DSDs. Women with PCOS, for example, can have elevated testosterone levels. These women, however, are not included in the requirement to lower testosterone. The CAS have made a distinction between 46XX and 46 XY DSD women, or in laymen terms, those we would consider genetic females, and those we would consider genetic males. It is, therefore, inaccurate to say that the rule is solely about testosterone, genetics are also being considered.
It would be useful if the CAS could pinpoint what research is being used for this. There must be reasoning behind the distinction. As the only research we can point at (the IAAF commissioned research from 2018) is about hormone levels, not chromosomes, they must surely be working from other evidence that supports the premise that XY chromosomes + excess testosterone is what confers the advantage in DSD women. If we’re basing the decision on science, let’s have the science for us all to look at. That seems to be what is missing here, which makes passing comment on the fairness of the judgement about Caster, from a scientific perspective, impossible.
I think it’s probably useful to now put this all into a wider, political, context. While this debate over DSD athletes has been going on, so has the gender debate, including discussions surrounding trans participation in sport. Many trans activists argue that trans women should be able to compete in women’s categories on the basis of self ID. In other words, full bodied males should be allowed to race against women based on their reported sense of “gender”, without any need to undergo any form of medical transition. This, of course, has been met with solid criticism and opposition from women’s groups and female athletes. Like all things in the gender debate, anyone not towing the “trans women are women” line is ostracised and vilified. There must be complete capitulation and inclusion. Caster, herself, has often been used by the press as one of the faces of this debate. The two causes; the inclusion of trans women, and the rules surrounding 46XY DSD women, have therefore become inextricably linked. Intersex orgs have themselves not really helped with this, producing their own papers which argue for inclusion based on gender identity.
It’s hard not to imagine that the judges at the CAS are aware of all of this. They will also be aware that, overall, public opinion seems to be that it would be unfair to allow any male who self-declared themselves to be a woman, to compete in the women’s category without question nor proving that they do not have an advantage. This seems logical. If we’re arguing on the basis of inner feelings, would it have been fair, for example, for the gold medal winner of the men’s decathlon at the 1976 Montreal Olympics to have been competed in the women’s pentathlon (as it was) instead? That is where the logical conclusion of inclusion based on self ID takes us.
The CAS will also surely be aware that any decision which limits trans inclusion or asks questions like the one I just asked there, will be met with hostility and claims of “transphobia “. This has proven a powerful tactic for those involved in trans rights activism, silencing any research or suggestion that “acceptance without exception” may not always be fair to others. The Caster case is a good opportunity for them to stem those criticisms before they begin. The judgement against Caster cannot be deemed transphobic, as Caster is not trans, despite becoming the trans inclusion poster child. Nor, therefore, can it be deemed as transphobic when applied to trans women, as it affects other, non-trans, women too.
I can’t help but feel that, without reliable data and research on the inclusion of DSD women in women’s sport, Caster has become an unwilling pawn for both sides here, and in the end, no one has won. Hard-line women’s rights campaigners who want women’s sport keeping just for XX women lose because 46XY DSD women continue to be allowed to compete, as long as they lower their testosterone (it’s also worth noting that this rule only applies to middle distance track events, and some field events such as pole vault. There are no limitations on other events), trans activists lose because they cannot argue for inclusion by self ID while the CAS recognise testosterone as conferring an advantage. And, frustratingly of all, intersex athletes lose as they have been paraded and prodded and politicised by all sides, to the point of exclusion without seemingly a fair trial.