Gender Binarism and Hormone Testing in Sports: The Caster Semenya case
The Olympic charter recognizes (Para 8, point 4) the practice of sport as a human right and ensuring fair play in sports is a laudable goal. However, the 2012 and 2016 Olympics gold medallist Mokgadi Caster Semenya was barred from the World Championship in 2019 for failing to qualify in the sex-test performed under the differences in sexual development (DSD) rules of the International Association of Athletics Federation (IAAF). When Semenya, like Dutee Chand, turned to the Court of Arbitration in Sports (CAS) and the Swiss Federal Supreme Court, the legality of these arbitrary regulations was astonishingly upheld. The article is an analysis of how the decision unveils key regulatory gaps in the intricacies of sports and law and reflects structural inequalities in international sports arbitration.
According to the IAAF Eligibility Regulations for the Female Classification (Page 3, Point 2.2(a)) a female athlete who has circulating testosterone levels in blood of (5) nmol/L or above is barred from participating in the world championships. To be eligible under the regulations, female athletes must undergo a hyperandrogenism test (Page A-3, Level 1 Assessment) and testosterone levels maintained at a level below (5) nmol/L for the entire duration of the competition and her participation under the female category. Historically, sex testing or gender verification was an ad hoc suspicion-driven testing (Page 7, para 25) of women athletes that began in the 1930s and turned into a mandatory universal certification for competitions governed by IAAF from the 1960s. When Semenya and other female athletes with DSD, a congenital condition with atypical sex chromosome, failed to stand eligible under the regulations, they were posed with the dilemma to either be outrightly banned from the competition or to take hormone-supressing drugs.
After participating in the race taking drugs, Caster Semenya challenged the legality of the regulations in the CAS as her first recourse. She cited the CAS 2015 award as a precedent to uphold that athletic performance can be legitimately affected by many variables, including physical and biological variables. Unfortunately, CAS dismissed the petition stating that the differential treatment is valid and lawful if it is a necessary, reasonable and proportionate means of attaining a legitimate objective.
Semenya, aggrieved by the decision filed an unsuccessful appeal at the Swiss Federal Supreme Court, the superior court of record over CAS. Aggrieved with the Federal Supreme Court’s decision, the fight for dignity, equality, and the human rights of women in sport has taken a crucial step forward with the filing of an application to the European Court of Human Rights (ECtHR) As the athletes and the world await the ECtHR’s decision on the issue, it is pertinent to keep in consideration that ECtHR is barred from overruling the CAS award as the CAS is not a national court. Therefore, athletes lack both a proper appeal mechanism and flexible protection from constitutional human rights bodies.
Despite identifying herself as a female, Semenya and many other athletes face the dilemma of choosing between compromising their physical integrity by accepting hormone supressing drugs or giving up their international sports career. A similar question was dealt under Article 8 ECHR in the case of AP Garçon and Nicot v France where a French Law made legal recognition of transgender identity conditional on sterilization. The Court’s judgment (Paragraph 94) determined that the burden of sterilisation surgery was unnecessary to guarantee the principle of the inalienability of the civil status of transgender persons. The Court relied on Article 8 in conjunction with Article 3 of the ECHR, and found the concept of private life and right against torture and degrading treatment was not susceptible to exhaustive definition but also includes (Para 92) and protects elements such as gender identity or identification, sexual orientation and sexual life within the personal sphere.
While it may be argued that the IAAF regulations aimed to govern Semenya’s sports status rather than her legal sex, it is pertinent to highlight the major consequences on her career as an athlete and the irreversible changes (Para 5) caused by the recommended surgical and hormonal treatment including sterility. These medical procedures invade bodily autonomy without free and informed consent required by the Council of Europe (Chapter II. Article 5) and are thus violative of the right to respect for dignity, bodily integrity and bodily autonomy of the person as well as the right to sexual and reproductive health encompassed under Article 8 of the ECHR. As the Human Rights Watch and UN Human Rights Council (para 25) alongside the World Medical Association have published reports on intersection of race and gender discrimination in sports, the arbitrary choice to either choose to undergo medical treatment or almost give up on the international sports career is a false dichotomy that needs to be acknowledged.
Moreover, the IAAF regulations only target female athletes contravening Article 14 of the ECHR which prohibits discrimination on the basis of sex and other statuses, including medical condition. It would need to be determined whether a legitimate aim is served and if the measures are proportionate in achieving that aim, but the applicability of a specific testosterone threshold and hormonal treatments over extended time lengths excluding male athletes would undoubtedly contravene Article 14. Therefore, it is clear that the IAAF regulations are premised on the assumption that athletes with comparatively higher levels of endogenous testosterone under the female category will have an unfair advantage (Para 4) over others as the hormone holds the potential to significantly enhance sporting performances. This is baseless and unscientific. The decision upholding the legality of the IAAF regulations have grave consequences for the future of women and the rights of transgender persons in sports as well as cloud their participation in 2024 Olympics in Paris and 2028 Olympics in Los Angeles.
Niharika Goel is currently pursuing a Master of Laws (LLM) at the University of Edinburgh.