New York Times
The highest court in international sports issued a ruling on Wednesday that will force female athletes with elevated levels of testosterone to take suppressants to compete in certain races against other women.
The ruling is a defeat for Caster Semenya, a two-time Olympic champion at 800 meters from South Africa, who had appealed the regulations and has fought to compete in women’s events despite her naturally elevated levels of the muscle-building hormone testosterone.
The court addressed a complicated, highly-charged question involving fair play, gender identity, biology and human rights that the world of track and field has been grappling with for a decade: Since competition is divided into male and female categories, what is the most equitable way to decide who should be eligible to compete in women’s events?
The decision by the Swiss-based Court of Arbitration for Sport provided a resounding victory for track and field’s world governing body, the International Association of Athletics Federations, or I.A.A.F.
It had argued that athletes classified with “differences of sexual development” — particularly those who possess testes and natural testosterone levels in the male range — gain an unfair advantage in women’s events from 400 meters to the mile in terms of additional muscle mass, strength and oxygen-carrying capacity.
The court said in its 2-1 ruling that while the I.A.A.F.’s proposed rules are discriminatory, “such discrimination is a necessary, reasonable and proportionate means of achieving the I.A.A.F.’s aim of preserving the integrity of female athletics.” But the panel wants the I.A.A.F. to apply its rules only up to 800 meters, because the evidence was not clear that women with elevated testosterone levels have a competitive advantage in the 1500 meters.
“Sometimes it’s better to react with no reaction,” Semenya posted on Twitter just after the ruling.
The I.A.A.F. accepts such athletes as legally female. For competitive purposes, though, it effectively considers them biologically male. And now the federation has been given the go-ahead to put in place a rule requiring these athletes to medically limit their testosterone levels in certain women’s events that synthesize speed, power and endurance.
This is necessary to provide a level playing field in races that can be won by a margin as small as a hundredth of a second, the I.A.A.F. contends. To do nothing, it has said, risks “losing the next generation of female athletes.”
Most notably affected by the ruling will be Semenya, a two-time Olympic champion at 800 meters, who had challenged the I.A.A.F.’s proposed rule. She and others with differences of sexual development now face hard choices if they want to compete in women’s events in major international competitions like the world championships in late September in Doha, Qatar, and the 2020 Olympics in Tokyo.
The choices for Semenya are these: take hormone-suppressing drugs and reduce her testosterone levels below 5 nanomoles per liter for six months before competing, then maintain those lowered levels; begin racing at distances beyond one mile; compete against men; enter competitions for intersex athletes, if any are offered, or give up her eligibility to perform in the most prestigious competitions like the Olympics.
Wednesday’s ruling represented a reversal of fortune for the I.A.A.F. In the 2015, the arbitration court found that the track governing body had not provided sufficient evidence of the performance advantage gained by athletes with elevated testosterone levels. That case involved an Indian sprinter named Dutee Chand. The new regulations would not affect her events, the 100 and 200 meters.
The track governing body has since calculated the advantages, relying, in part, on a 2017 study it commissioned that was published in the British Journal of Sports Medicine. The study showed that women with elevated testosterone levels gained a competitive advantage from 1.78 percent to 4.53 percent in events like the 400 meters, the 400-meter hurdles, the 800 meters, the hammer throw and the pole vault.
Most women, including elite female athletes, have natural testosterone levels of .12 to 1.79 nanomoles per liter, the I.A.A.F. said, while the normal male range after puberty is much higher, at 7.7 to 29.4 nanomoles per liter. No female athlete would have natural testosterone levels at five nanomoles per liter or higher without so-called differences in sex development or tumors, the I.A.A.F. has said.
Doriane Lambelet Coleman, a law professor at Duke and a former elite 800-meter runner in the 1980s who served as an expert witness for the I.A.A.F., wrote in The New York Times in April 2018 that “advocates for intersex athletes like to say that sex doesn’t divide neatly. This may be true in gender studies departments, but at least for competitive sports purposes, they are simply wrong. Sex in this context is easy to define and the lines are cleanly drawn: You either have testes and testosterone in the male range or you don’t.”
Lambelet Coleman added: “There is no characteristic that matters more than testes and testosterone.”
But Semenya and her supporters have called the I.A.A.F. rule medically unnecessary as well as “discriminatory, irrational, unjustifiable” and a violation of the rules of sport and universally-recognized human rights.
Semenya said the rule stigmatized women who do not conform to perceived notions of femininity and permitted discrimination against them. She argued that she should be able to compete the way she was born without being obliged to medically alter her body.
“I just want to run naturally, the way I was born,” she said last summer. “It is not fair that I am told I must change. It is not fair that people question who I am.”
A group of scientists has charged that the I.A.A.F. relied on faulty data in trying to establish the precise advantages of athletes with elevated testosterone levels. Semenya’s lawyers and other supporters have argued that science has not conclusively shown that elevated testosterone provides women with more of a significant competitive edge than factors like nutrition, access to coaching and training facilities, and other genetic and biological variations.
The tennis icon and activist Billie Jean King, an ardent supporter of Semenya’s wrote on Twitter in February, “My friend Caster Semenya is unequivocally female. Forcing women w/naturally high testosterone to give up ownership of their bodies & take drugs to compete in sport is barbaric, dangerous, and discriminatory.”
When Semenya, then 18, dominated the 800 race at the 2009 world track and field championships, winning by more than two seconds, a fellow competitor called her a man. Pierre Weiss, the general secretary of the I.A.A.F., “She is a woman, but maybe not 100 percent.”
Semenya was barred from competition for months and subjected to humiliating sex tests before returning to the track. It is not known for certain what, if any, procedures were undergone by Semenya, who won a silver medal at the 2012 London Olympics. Nor could it be verified, as reported in 2009 in The Daily Telegraph of Australia, that Semenya had internal testes and three times the testosterone level of a typical woman.
Semenya has expressed concern through her lawyers that a rule governing natural testosterone levels continues “the offensive practice of intrusive surveillance and judging of women’s bodies, which has historically haunted women’s sports.”
The ruling by the arbitration court was also watched closely by transgender athletes and by officials of the International Olympic Committee as they prepare to set guidelines for participants in the 2020 Olympics next summer in Tokyo.
Transgender athletes are no longer required to undergo reassignment surgery to participate in the Olympics. Those transitioning from female to male can compete without restriction.
Athletes transitioning from male to female must declare that their gender identity is female and cannot rescind that declaration for a minimum of four years for sporting purposes. The athletes must also suppress their testosterone level below 10 nanomoles per liter for a year before becoming eligible for the Winter or Summer Games. The ruling in the Semenya case, though, is expected to prompt the I.O.C. to recommend that all Olympic sports adopt the more restrictive cutoff of five nanomoles per liter.
The subject has gained visibility recently with the success of transgender athletes winning women’s sprinting events in high school in Connecticut and with widely-criticized remarks by Martina Navratilova, the tennis star and gay-rights activist, who suggested it was cheating for transgender athletes to compete in women’s sports. After being accused of being transphobic, Navratilova apologized.
“The I.O.C. aims to balance inclusivity, fairness, safety and a level playing field for all athletes,” the Olympic committee said in a recent statement. “Our approach to providing guidance on participation is based on medical and expert consensus in an ever-evolving area of research and learning.”