Editorial: Redefining a woman for athletic purposes

We suspect that the athletics authorities have always looked askance at the seemingly invincible performances of Caster Semenya, the South African world champion and two-time Olympic gold medalist, over 800 meters, for female athletes. While they were forced to acknowledge her athletic prowess in this event , her physical appearance and running style permitted the International Association of Athletics Federation [IAAF] to argue that she enjoyed an unfair advantage over other female runners because of the high levels of testosterone in her body.

So, as another governing body, the International Cricket Council [ICC] had done earlier in its sport to accommodate batsmen padding out balls without sanction, in order to counter the twin spin threat of Ramadhin and Valentine, or restricting the number of short pitched balls permissible in one over to blunt the force of our vaunted pace attack in the 1980’s, the IAAF came up with the IAAF eligibility Regulations for Female Classification (Athletes with Differences of Sex Development) or as they have become better known, the DSD Regulations, in March/April 2016.

These regulations, which replaced the earlier cancelled Hyperandrogenism Regulations, are intended to govern the eligibility of women with DSD for female classification in race events from 400 metres to 1 mile at international athletics competitions. The difference in sexual development covered under the new regulations is limited to athletes with 46 XY DSD –which means, according to the media release issued by the Court of Arbitration for Sport [CAS], where the affected individual has XY chromosomes. Only those athletes with XX chromosomes are exempt from the regulations.
It appears that athletes with 46 XY DSD have testosterone levels well into the male range (7.7 to 29.4 nmo/L) ; while the normal female range is below 2 nmo/L. The Regulations will require athletes with a natural testosterone level over 5 nmo/L to reduce their natural testosterone level to below 5 nmo/L in order to be eligible to compete in a Restricted Event by the use of normal oral contraceptives.

Naturally, Ms Semeya, supported by Athletics South Africa, the governing body for the sport there, challenged these new regulations in June 2018 by filing a request for arbitration. The CAS heard from the parties, from the IAAF and a slew of experts specialising in fields as diverse as gynaecology, andrology, genetics, endocrinology, pharmacology, exercise physiology and statistics.

By a majority of the panel, the request for arbitration was denied on May 1. It was considered that the burden of proving that the Regulations were invalid rested on the Claimants and that they had failed to discharge this. Even though it was conceded that the Regulations were discriminatory in the nature, the majority thought that they were necessary, reasonable and proportionate means of achieving the IAAF’s aim of preserving the integrity of female athletes in the restricted events and hence justifiable.

It was however recognised that the practical application of the Regulations may be no cakewalk. What for instance, are the possible and potentially harmful side effects of hormonal treatment, a matter that might itself alter the proportionality of the Regulations?

The decision was greeted with some derision by Athletics South Africa. According to a report in the London Guardian, the body stated, “CAS has seen it fit to reopen the wounds of apartheid-a system of discrimination condemned by the whole world as a crime against humanity...”

We, too, are not in agreement with the decision. While we recognise that the right not to be discriminated against is not absolute and that its infringement may be justified in appropriate circumstances, a discrimination premised on individual natural involuntary attributes, such as colour or physical inability, does appear to be particularly vindictive and wrong.