The Olympian is contesting in the Court of Arbitration for Sport (CAS) regulations proposed by the International Association of Athletics Federations (IAAF), that would prevent females with naturally high testosterone levels from competing, unless they take steps to reduce the level of testosterone that naturally occurs in their bodies.
Semenya is supported by the United Nations, which has urged the IAAF to withdraw the regulations. Semenya’s lawyers maintain she is “unquestionably a woman,” despite suggestions that the IAAF would claim she is “biologically male”. The IAAF has denied that it will classify any female with “differences of sexual development (DSD)” as male. However, its lawyer has said that if it cannot implement the regulations, “then DSD and transgender athletes will dominate the podiums and prize money in sport and women with normal female testosterone levels will not have any chance to win”.
Existing IAAF regulations have been disputed in recent years. The Indian sprinter Dutee Chand was barred from competing at the 2014 Glasgow Commonwealth Games as her testosterone levels exceeded IAAF limits. She challenged this, arguing that there was no medical evidence that higher testosterone gave female athletes a competitive advantage, pointing to other influencing factors like diet and coaching. The CAS found in Chand’s favour and lifted the ban. The regulations were suspended for two years and the CAS said it would declare them void unless the IAAF produced scientific evidence linking competitive advantage to naturally occurring high levels of testosterone.
A subsequent study, commissioned by the IAAF, found that testosterone levels made a difference in five events, although they were not confirmed as providing a competitive advantage. The biggest differences were in the hammer throw and pole-vault, with smaller differences identified in the hurdles, and 400 and 800 metres running events. Following this, the IAAF released revised regulations, focusing on testosterone as the determining factor in competitive advantage. It halved the testosterone limit for those competing in distances between 400 metres and a mile.
It is these regulations, which no longer apply to Chand, pictured below left, that Semenya is challenging.
The CAS has said Semenya’s case is one “of the most pivotal” it has heard. If the CAS agrees with Semenya, the position will remain largely unchanged. However, if it sides with the IAAF, sports regulation as we know it could be transformed. If enforced, the new regulations will require women with naturally high testosterone to seek medical intervention to lower their testosterone levels to remain eligible to compete.
Semenya’s case has attracted considerable attention. Comparisons have been drawn to athletes like Usain Bolt and Michael Phelps, whose physical traits could be seen as having given them an advantage. We would not expect them to change their bodies to give others a fairer chance of competing against them, so why should testosterone be any different?
As service providers, sports bodies have obligations under equalities law, so should be aware of potential discrimination claims if gender eligibility is not handled appropriately. The regulations at the centre of Semenya’s case only apply to athletics, where men and women compete separately. The regulations could, potentially, be extended to male competitors who have naturally high testosterone levels, and they could also be introduced in other sports.
Men and women do not compete directly against each other in a number of sports. While this is discriminatory, it can be justified where one gender has a competitive advantage because of differences in size, power, and strength.
If enforced, the regulations could affect trans competitors as testosterone levels are often a key factor in determining eligibility. Equalities legislation permits the exclusion of trans competitors in certain circumstances. A sports body has to demonstrate that the sport is “gender affected” – with one gender placed at a disadvantage compared to the other – and that the exclusion of the trans person is necessary to preserve fair competition or the safety of competitors. The question of whether exclusion is necessary is complicated, and involves legal and medical analysis of a number of factors, including evidence of testosterone levels.
This is an evolving area of the law encompassing a multitude of complex legal, scientific, factual and ethical issues. The International Olympic Committee (the IOC) is progressive and is introducing mixed events in athletics, triathlon, swimming and table tennis at the Tokyo Olympics in 2020. The IOC’s Sports Director Kit McConnell supported this, saying: “We have taken a really important step forward in terms of gender equality.” An increase in truly mixed sports may be the future, particularly given the increase in the number of individuals who do not exclusively identify as male or female. How willing other sports governing bodies will be to follow the IOC’s approach remains to be seen.
l Rebecca Nicholson is a solicitor in the employment team of Shepherd and Wedderburn