The crux of the Caster Semenya ruling, the line that cuts a path through the thicket of conflicting arguments and contrary opinions, is buried midway through the sixth paragraph of the summary of the verdict. It all turns on one little word – “but”. The paragraph explains that the court of arbitration for sport’s three-person panel found that the IAAF’s regulations requiring Semenya and other middle distance runners with Differences of Sex Development (DSDs) to lower their naturally high levels of testosterone are “discriminatory” but that “such discrimination is a necessary, reasonable and proportionate means of achieving the IAAF’s aim of preserving the integrity of female athletics”.
Cas has not only decided that the rights of the majority of female athletes outweigh the rights of the minority among them with DSDs, it has also decided that the IAAF is justified in discriminating against that minority because it protects the interests of the larger group. Semenya, then, and an unknown number of other runners with DSDs who want to compete between 400m and a mile will now have to take oral contraceptives to bring their testosterone levels down below the IAAF’s threshold of five nmol/L, closer to the range of a typical female athlete. Sports scientists estimate it will cost her around seven seconds over 800m, the difference between finishing first and last in the 2016 Olympic final.
It has taken 10 years to get to here. Semenya first burst into world athletics in July 2009 when she broke four separate national age records in the 800m when she won the African junior championships in Mauritius. She ran 1min 56.72sec. It was the first time she had run under the two-minute barrier and it was four seconds better than her personal best.
A month later, at the world championships in Berlin, she went quicker again and won the gold in 1min 55.45sec. Later that day the IAAF revealed that it had asked her to undertake a gender test and, just like that, everything changed.
In the days after that first world championships, when it was still unclear whether Semenya would be allowed to compete as a woman again, the man who was then South Africa’s sports minister, Makhenkesi Stofile, promised that if she was disqualified it would cause a “third world war”. It sounded like so much hot air, but in the decade since his remarks have turned out to be more prescient than anyone guessed they would be when he made them. Compelling ethical, political, racial, and scientific arguments and counter-arguments emerged on both sides of what has grown into an unbridgeable divide. Semenya’s cause has become another front in a culture war.
All that shouting generated a lot of heat but not much light. The issues at play are endlessly complex, and impossible to do justice to inside the Twitter limit of 280 characters. It’s an Escher sketch of a debate. Everyone agrees that fair competition in sport depends on the binary categorisation of the sexes, but Semenya, and the handful of other athletes with DSDs, suggest that in a minority of cases biological sex can also be viewed as being on a spectrum. She is a woman who was born with some of the inherent performance advantages of a man. From this distance that seems to have been both a blessing and a curse, but in athletics terms it is something like a superpower.
The IAAF have introduced new rules requiring female athletes with differences in sexual development (DSDs) to lower their testosterone if they wanted to compete in events between 400m and a mile. The IAAF says the rules are needed to protect female sport, as DSD athletes like Semenya have an advantage.
Semenya challenged the rules in the court of arbitration for sport (Cas), claiming they discriminate against her. Her legal team have said “her genetic gift should be celebrated”, and argue that taking hormone suppressants to reduce testosterone is unethical and a health risk.
Cas's verdict means Semenya must take medication to reduce her testosterone in order to keep running on the international stage. One expert believes she will run the 800m around seven seconds slower if she reduces her testosterone levels.
There was no ready way to reconcile it without outraging one side or another, without, yes, discriminating against one side or the other. It fell to Cas to decide who was going to lose, to find the black and white among all these different shades of grey. And while it has not released the full 165-page judgment, it seems clear that it was persuaded by the principle that male and female athletes are divided by their respective testosterone levels.
Some experts argue that there is no single factor that neatly determines whether an individual is male or female, and other experts say it is unclear exactly what effect that increased testosterone has on performance. But Cas seems to have accepted the argument by two votes to one.
It is its conclusion, but it is not going to be the conclusion. Semenya’s legal team are considering whether or not to launch an appeal, and already all the many people on her side of the divide are busy picking holes in the verdict. Because, while Cas did manage to come down on one side, the summary also contained a lot of holes, quibbles and caveats. It made it clear Cas has very real doubts about the practical application of the same regulations it has decided for in principle, worrying in particular about the lack of “concrete evidence” to support the IAAF’s case at 1500m and a mile, and suggests that the IAAF defers the rule at those distances until it has more proof for it.
Which means Cas is satisfied that the IAAF has proven its case in one of Semenya’s events, the 800m, but not the other, the 1500m. Cas also agrees with the IAAF that these regulations are a “living document” and will be subject to amendment, saying that if Semenya can show the regulations are too hard to comply with – if, for instance, there are too many negative side-effects – it may even change its mind about whether the IAAF’s discriminatory policy is proportionate or not.
The sport demands a clear answer, the court has tried to provide it, but the truth is that even now, life is not so tidy, and the case remains a mess of irreconcilable contradictions.
