CAS’s verdict on Caster Semenya testosterone case: Fair play or rights violation?

Nihal Koshie
The much-awaited CAS verdict could impact the career of 800m Olympic champion Caster Semenya. (Reuters)

By the end of this month, the Court of Arbitration for Sport (CAS) would decide whether women with high levels of testosterone can participate in the female category of track and field events. The much-awaited verdict might not just impact the career of 800m Olympic champion Caster Semenya, and other athletes with abnormally high levels of testosterone, but can potentially change the face of women's sports forever.

This rethink on the guidelines has triggered an emotive debate with influential voices shouting each other down. On one side is Semeya, who is fighting for the rights of 'intersex' athletes, those who don't fit into the conventional binary notion of male or female. She has spoken about her old wounds being reopened.

However, making the issue complex is a growing opinion among top female athletes who have been expressed fears about the new rule being misused by transgenders and even by male athletes who undergo sex change. Recently, top British athletes got together to ask the world athletics body to tread carefully, as they felt that the new laws could see men sneak into female sport.

Here are a few statements that kept this issue of female sports on a never-ending boil.

The scars Ms Semenya has developed over the past decade run deep. She has endured and forged herself into a symbol of strength, hope and courage. Reading the comments of Mr. Coe this weekend opened those old wounds and the reference by the Daily Telegraph (Australia) to "the muscle-packed Semenya" is just the latest illustration of how the issues have been distorted by innuendo: Caster Semenya, via a statement from her lawyers.

Last week, the president of the International Association of Athletics Federations (IAAF) Sebastian Coe, while speaking to Australia's Daily Telegraph, said why women with higher levels of testosterone should not be allowed to compete in female category. The IAAF classifies them as athletes with Differences of Sex Development (DSD)-a term which covers inter-sex athletes.

"It is a very, very simple principle: It's the protection of fair competition and fair play. The reason we have gender classifications is because if you didn't then no woman would ever win another title or another medal or break another record in our sport," Coe said.

The same article described Semenya was described as "muscle-packed" and this too didn't go well with the backers of the South African athlete. Semenya, in a response via her lawyers, recalled her 2009 trauma when on the eve of the World Championships questions were raised about her eligibility to compete in the female category. Semenya said that Coe's view on transgender was "a different issue" since she was challenging the regulations that affect women with DSD.

The eligibility regulations for the female classification published by the International Association of Athletics Federations are not compatible with international human rights norms and standards, including the rights of women with differences of sex development: United Nations Human Rights Council resolution

Earlier this month, one of the world's leading human rights organisation waded into gender debate while passing a strongly worded resolution. It said the IAAF may be in breach of "international human rights norms and standards." The South African-led resolution was adopted by consensus by the council's 47 members on Thursday. The IAAF was quick to hit back.

"It is clear that the author is not across the details of the IAAF regulations nor the facts presented recently at the Court of Arbitration. There are many generic and inaccurate statements contained in the motion presented to the Human Rights Council so it is difficult to know where to start. The common ground is that we both believe it is important to preserve fair competition in female sport so women are free to compete in national and international sport," an IAAF statement said.

To put the argument at its most basic: a man can decide to be female, take hormones if required by whatever sporting organisation is concerned, win everything in sight and perhaps earn a small fortune, and then reverse his decision and go back to making babies if he so desires. It's insane and it's cheating. I am happy to address a transgender woman in whatever form she prefers, but I would not be happy to compete against her. It would not be fair: Martina Navratilova in a Sunday Times op-ed on transgender athletes

The tennis great was calling for the exclusion of athletes who have changed their gender and excelled in the women's category. But following the firestorm of criticism, Navratilova issued a clarification on her blog saying she wanted a debate on the issue which is based on science and objectivity and not based on emotion or feeling.

"All I am trying to do is to make sure girls and women who were born female are competing on as level a playing field as possible within their sport," she blogged.

Navratilova was dropped from the advisory board of Athlete Ally, a group which supports LGBTQ athletes. Transgender cyclist Rachel McKinnon, an age-group world champion, called Navratilova a "transphobe."

I saw Martina's column, and spoke to Kelly and to Paula and all of us were, ‘Oh my goodness, we need to stand up and be counted on this. I don't think people realised how the rules changed in 2015. I believe it was stealthily done. There is the potential to seriously ruin sport for females. I think 'who is protecting the females and standing up for female sport?’ I know what it feels like to be standing on the block next to someone you know has an unfair advantage. That injustice is ingrained in me and makes me more determined to have a voice in this: Former British swimmer Sharron Davies in an interview to The Times, London.

Navratilova is not the only sportsperson who has raised fears of the transgender athletes gaining an advantage in the women's category. Davies, along with former middle distance start Kelly Holmes and marathon record holder Paula Radcliffe, said they would petition the International Olympic Committee (IOC) to have a relook at rules that can make it easier for transgender athletes to participate in the female category. Davies has backed a group called Fair Play for Women.

Updated IOC guidelines in 2016 stated that transgender athletes who moved from male to female will have to keep their testosterone levels below 10 nanomoles per litre (nmol/L) for at least one year before their first competition.

One of the recent examples of athletes who previously competed as men but shifted to the women category is weightlifter Laurel Hubbard, who used to compete as Gavin Hubbard. Competing in the +90 women's category, Laurel won silver at the Anaheim World Championships in 2017. When Laurel competed at last year's Commonwealth Games, her competitors objected 'on principle'. Australia's weightlifting association tried to get her disqualified but failed. She was leading by 7 kilograms but an elbow injury proved to be a setback at the CWG. Laurel is set to return to competition at the Arafura Games in Darwin from April 26 to May 4.