Editor's note: Andy Brown is a freelance journalist who has been writing about the governance of sport for over 15 years. He is the editor of The Sports Integrity Initiative where this blog appeared first.
For the last three days, I have been struggling with what to write regarding the Swiss Federal Tribunal’s (SFT) Decision to dismiss a challenge from Caster Semenya and Athletics South Africa (ASA) against the Court of Arbitration for Sport’s (CAS) Decision
to dismiss a challenge to the Eligibility Regulations for the Female
Classification (Athletes with Differences of Sex Development), otherwise
known as the DSD Regulations. From reading World Athletics’ statement
welcoming the ruling, one could be forgiven for thinking that it had
won a major trial. Sports journalists, accustomed to covering events now
curtailed by Covid-19, focus on the fact that Semenya has ‘lost’ her case against the DSD Regulations. Neither assertion is strictly accurate.
The SFT’s powers to review the CAS’s ruling are severely limited. It can only consider whether the CAS Decision violates ‘widely recognised principles of public order’
on Swiss public policy grounds. The SFT has only reversed a decision
based on a a violation of Swiss public policy once in 30 years.
The SFT didn’t reconsider the evidence put forward to the CAS. ‘For
there to be incompatibility with public policy, it is not enough that
the evidence has been poorly assessed, that a finding of fact is
manifestly false or that a rule of law has been clearly violated’, its Decision reads. ‘The
only question to be resolved is in fact whether or not the verdict of
the CAS renders the referred award incompatible with substantive public
There were questions about whether the appeal from Semenya and ASA
qualified to be reviewed by the SFT in the first place. World Athletics
is a private organisation headquartered in Monaco, and the SFT was
troubled as to whether such a complaint brought by a South African
athlete against an overseas private organisation is capable of violating
Swiss public policy.
‘It is doubtful whether the prohibition of discriminatory
measures falls within the scope of the restrictive concept of public
order when the discrimination is committed by a private person and
occurs in relations between individuals’, the Decision quotes from its pervious 29 July 2019 Decision, which refused the ASA’s request to provisionally suspend the application of the DSD Regulations. ‘In any event, there is no need to examine this question further here since […] the award under appeal does not in any way establish discrimination which would be contrary to public order’.
The SFT ruled that the CAS was correct to uphold conditions of
participation for 46 XY DSD athletes in order to guarantee fair
competition for certain disciplines in female athletics. In doing so,
the SFT was ruling on whether the decision taken by the CAS violates
public policy, based only on the complaints brought forward by Semenya
Semenya and the ASA had challenged the CAS Decision based around the
idea that the DSD Regulations are discriminatory. The CAS held that they
are discriminatory, but agreed with the IAAF (as World Athletics was
then named) that such discrimination was necessary to protect its female
category. The SFT ruled that even if the discriminatory rules of a
private organisation such as the IAAF were considered able to pose a
threat to public order, Semenya and the ASA had failed to demonstrate
that the CAS Decision was so egregious that it posed such a threat.
‘Caster Semenya essentially alleges a violation of the prohibition of discrimination’, reads the Swiss Federal Supreme Court statement.
‘The CAS has issued a binding decision based on the unanimous opinion
of the experts who were consulted that testosterone is the main factor
for the different performance levels of the sexes in athletics;
according to the CAS, women with the “46 XY DSD” gene variant have a
testosterone level comparable to men, which gives them an insurmountable
competitive advantage and enables them to beat female athletes without
the “46 XY DSD” variant. Based on these findings, the CAS decision
cannot be challenged. Fairness in sport is a legitimate concern and
forms a central principle of sporting competition. It is one of the
pillars on which competition is based. The European Court of Human
Rights also attaches particular importance to the aspect of fair
competition. In addition to this significant public interest, the CAS
rightly considered the other relevant interests, namely the private
interests of the female athletes running in the “women” category.’
Such strong support for the principle behind its DSD Regulations was rightly welcomed by World Athletics. Its statement asserted that the SFT ‘acknowledged that innate characteristics can distort the fairness of competitions’.
I would argue that the SFT ruling didn’t do this, but rather found that
a CAS Decision asserting this didn’t violate Swiss public policy.
Likewise, when World Athletics quotes the SFT Decision as confirming that ‘It
is above all up to the sports federations to determine to what extent a
particular physical advantage is likely to distort competition and, if
necessary, to introduce legally admissible eligibility rules to remedy
this state of affairs’, it is paraphrasing two texts quoted in the SFT Decision. The first is ‘La qualification juridique des rules autonomes des organizations sportive’ by Jérôme Jaquier, 2004. ‘Inborn characteristics specific to athletes in a particular group can also distort the fairness of competition’, the SFT Decision quotes from Jaquier. ‘When they enact regulations, the objective of sports federations is to ensure fair and equitable competition’.
The context of the second quote, from ‘Sportrecht – Berücksichtigung der Interessen des Sports in der Rechtsordnung’
by Martin Kaiser, 2011, is even more interesting. It is preceded with a
statement from the Swiss Federal Supreme Court, which reads: ‘It is
not for the Federal Court to make, abstractly, comparisons between the
disciplines to assess whether a particular athlete has an advantage that
makes sporting competition meaningless’.
‘It is above all for the sporting federations to determine to
what extent a particular physical advantage is liable to distort
competition’, the SFT Decision quotes from Kaiser. ‘And, if so, to establish legally admissible eligibility rules to remedy this state of affairs’.
Again, such details might be considered as semantics. But – I would
argue – important semantics. Reading the media maelstrom that has
resulted from the SFT Decision, one could be forgiven for assuming that
Semenya has lost her case, and has no chance of ever defending her 800m
title. However, a statement issued by her lawyers reveals that she intends to challenge the ruling in European and domestic courts.
“I am very disappointed by this ruling, but refuse to let World Athletics drug me or stop me from being who I am”, the statement continues. “Excluding
female athletes or endangering our health solely because of our natural
abilities puts World Athletics on the wrong side of history. I will
continue to fight for the human rights of female athletes, both on the
track and off the track, until we can all run free the way we were born.
I know what is right and will do all I can to protect basic human
rights, for young girls everywhere.”
Men vs. Women
World records prove that men run faster and throw further than women.
As explained in the CAS Decision, the IAAF modified the DSD Regulations
to exclude XX athletes from their scope. By doing this, it was able to
frame the DSD Regulations as mitigating any advantage held by ‘biologically male’ athletes in international events run between 400m and one mile in its female category.
Caster Semenya fits the IAAF definition as ‘biologically male’,
as she has one of the five DSDs outlined in the DSD Regulations, and
competes in the Restricted Events. Semenya’s status as a 46 XY DSD
athlete was confirmed by the Swiss Federal Supreme Court on 29 July
2019, when it revoked a supra-provisional suspension of the application of the DSD Regulations to Semenya. ‘Mokgadi Caster Semenya is an “athlete concerned” within the meaning of Article 2.2 of the DSD Regulations’, reads its 29 July interlocutory order (available here in French).
The Semenya case isn’t exclusively about whether men should be able
to line up against women in female events – although the debate has
sometimes been framed that way. Caster Semenya is a woman, who has been
outed as having a DSD by World Athletics’ relentless case against her,
which began when she was 18 (she is now 29). She is a 46 XY karyotype
woman who has been very successfully competing (and this is not
insignificant) against 46 XX karyotype women.
The Semenya case is firstly about whether World Athletics has
conclusively proven that women who are 46 XY DSD karyotype hold a
significant advantage in the events the rules cover. Secondly, it is
also about whether it has proven that such an advantage is so great that
it renders competition between female and DSD athletes in the covered
Such an argument should always be decided scientifically. The SFT
Decision doesn’t do that. There were serious concerns about the
scientific evidence used to support the DSD Regulations both before,
during, and after the CAS Decision. Although we have been through some
of these concerns before, they are worth restating, as they have yet to
There are also concerns about the way in which sport’s rules and
regulations have been moulded and changed in order to accommodate the
DSD Regulations. They have also not been addressed. But, firstly, it is
important to explain what the DSD Rules seek to regulate and why.
The DSD Rules
The DSD Rules, as they have been called since November 2019 (PDF
below), cover athletes with one of five listed DSDs competing in
international events run between 400m and one mile in World Athletics’
female category, if their endogenous (natural) testosterone levels are
above 5nmol/L and have an ‘androgenising effect’ (i.e. if that
testosterone is taken up by their androgen receptors and boosts their
physiology). Athletes who meet these conditions must use hormonal
contraceptives to reduce their testosterone levels to below 5 nmol/L for
six months prior to competing, and must maintain testosterone levels at
below 5 nmol/L in order to continue competing.
Testosterone is a natural, endogenous (internally produced) steroidal
hormone. In the XY karyotype, it is understood that testosterone is the
single primary hormone driving the endocrine system, a chemical
messaging system that regulates the physiology. In the XX karyotype, it
is understood that two primary hormones – oestrogen and progesterone –
perform the same function, along with testosterone in much smaller
The logic behind the DSD Rules – explained
during Semenya’s challenge to them – is that DSD athletes develop an
unfair advantage over XX karyotype women due to the continued action of ‘elevated’ testosterone on their XY karyotype physiology from puberty onwards. I have termed this a ‘legacy advantage’,
since not every DSD athlete will automatically become an elite runner
between 800m and one mile in World Athletics’ female category. Correct
diet, dedication, and training over time is also required.
The DSD Rules seek to reconcile this ‘legacy advantage’ by
requiring medical intervention in the present. It could be argued that
World Athletics is medically handicapping DSD athletes in the present
for an advantage they have strived to develop over time. But as
explained, the SFT was not required to consider that conundrum.
‘Affected athletes can either (a) take a daily oral contraceptive
pill; or (b) take a monthly injection of a GnrH agonist; or (c) have
their testes surgically removed (a ‘gonadectomy’)’, reads Briefing Notes on the Rules published by World Athletics.
‘It is their choice whether or not to have any treatment, and (if so)
which treatment to have. In particular, the IAAF does not insist on
surgery. The effects of the other two treatments are reversible if and
when the athlete decides to stop treatment. Importantly, lowering
testosterone in one of these ways is the recognised ‘gender-affirming’
standard of care for any individual (athlete or not) who is 46 XY but
has a female gender identity.’
As explained above, the SFT couldn’t make any determination about
whether it was ethical to require a 46 XY DSD athlete who is not unwell
to take a contraceptive pill designed for 46 XX karyotype females. The
CAS did recognise this issue, and found that there were serious side
effects on 46 XY DSD individuals who used contraceptive pills designed
for XX females to lower their endogenous (internally produced)
testosterone to below 10 nmol/L (the DSD Rules set an upper limit of 5
‘Ms. Semenya described the negative effects that the testosterone-suppressing medication had on her mental and physical health’, reads para.78 of the CAS Decision. ‘Her
symptoms included becoming hot and sweating profusely each night and
experiencing significant weight gain. She also felt sick constantly,
suffered from regular fevers and had constant internal abdominal pain.
These symptoms also had an “enormous” effect on her mental state,
impeding her mental sharpness and undermining her self-confidence.’
In the XY karyotype, testosterone is the only hormone driving the
endocrine system that regulates an individual’s physiology. Therefore,
it is understood that reducing it is likely to make people unwell. As
the CAS and SFT decisions recognise, XY karyotype individuals typically
have circulating testosterone between 7.7 nmol/L to 29.4 nmol/L.
Of course, reducing this to 5 mol/L will make an XY karyotype athlete
slower. This is because the only natural hormone driving the XY
karyotype endocrine system, which supports their physiology, has been
seriously curtailed. The same effect cannot be replicated in the XX
karyotype, since three hormones drive the endocrine system and a much
lower baseline level of testosterone (0.06 nmol/L to1.68 nmol/L) exists
in the first place.
This is why testosterone deficiency is a recognised as a medical
condition that can make XY karyotype people unwell. DSD athletes are XY
karyotype, as the IAAF made clear during its arguments against Semenya’s
appeal at the CAS. Other XY karyotype athletes, such as Kristen Worley and Sloan Teeple,
have also been made unwell due to sport’s rules on testosterone, as
have certain DSD athletes who underwent a horrific experience ahead of
the London 2012 Olympics. Shockingly, the IAAF used the experience
of these medically damaged athletes as evidential support that the DSD
Regulations are effective in making 46 XY DSD athletes slower!
Unlike XY karyotype individuals who are transitioning to become XY
females, 46 XY DSD athletes usually do not wish to change their
physiology through hormonal modification. Their testosterone levels are
not ‘elevated’, to borrow World Athletics’ description, but are
normal for their karyotype. World Athletics requires them to reduce the
primary stimulus for their endocrine system to levels consistent with
the XX karyotype in order to compete in events run between 400m and one
mile in its female category.
World Athletics requires 46 XY DSD athletes to undergo potentially
damaging hormonal treatment to compete in its female category. Arguably,
it requires athletes to ‘feminise’ themselves.
As explained above, this is likely to make 46 XY karyotype athletes
unwell, although the SFT didn’t have to examine whether the CAS had
assessed this danger sufficiently. Nowhere in the DSD Regulations, or in
the Explanatory Notes, is there any mention of measures taken to
monitor an athlete’s health after her natural testosterone levels are
reduced to below 5 nmol/L.
Show me the science
As detailed in this article,
there were two major pieces of scientific evidence used to support the
DSD Regulations. The first is 2017’s Paper One, entitled ‘Serum
androgen levels and their relation to performance in track and field:
mass spectrometry results from 2127 observations in male and female
athletes’. Paper Two, published in 2018, is ‘Circulating Testosterone as the Hormonal Basis of Sex Differences in Athletic Performance’.
Paper One has a number of significant issues, discussed in this article under ‘Scientific evidence on performance advantage’.
In short, the Paper found a correlation between XX karyotype females
with elevated free testosterone and performance at the Daegu 2011 and
Moscow 2013 IAAF World Championships, events which were marred by
doping. Among the 1,332 female observations in the study, just nine were
46 XY DSD.
Paper Two also has a number of significant issues, detailed under ‘The 2018 Study’ in this article. In short, evidence for increases in muscle mass and strength appear to come from a 2014 Study
performed on 62 XX karyotype post-menopausal women (mean age, 53) who
had undergone a hysterectomy; it references several other studies in
order to support the proposition that DSD athletes benefit from
increases in circulating testosterone that increases circulating
haemoglobin, which in turn translates to an increase in oxygen transfer;
and compares endogenous testosterone levels with increases in muscle
mass and strength.
One of the studies it relies on is a 2017 Study examining women with Congenital Adrenal Hyperplasia (CAH), a condition
in which the adrenal gland can produce more testosterone. The Study
found that in women with CAH, erythropoiesis may be driven by androgens.
The proposition is that as DSD athletes have higher levels of
testosterone (an androgen), they benefit from increased erythropoiesis
(production of oxygen-carrying red blood cells).
On 9 January 2019, shortly before the CAS hearing on 26 February, the
IAAF removed CAH and a CAH variant from the scope of the Regulations.
It did so because, in the IAAF’s words, ‘individuals
with these DSDs only have high testosterone levels if their adrenal
conditions are uncontrolled, in which case they would suffer
side-effects that would make elite sports performance impossible’.
Yet as explained above, a study examining XX karyotype women with CAH
had been used as part of the IAAF’s evidence base in support of the
Regulations. It would appear that by carving XX karyotype women and CAH
out from the scope of the Regulations, the IAAF negated part of its own
There is more information about scientific inaccuracies in the evidence used to support the DSD Rules here; here; and here.
In addition, as previously mentioned, World Athletics used data from
athletes medically damaged by its Hyperandrogenism Regulations – the
forerunner to the DSD Rules – to prop up the DSD Rules.
The issue is not that World Athletics hasn’t proven that 46 XY
karyotype athletes can run faster or throw further than 46 XX karyotype
athletes. Anybody with access to Wikipedia can do that. It is whether
World Athletics has proven that by virtue of the effects of testosterone
on the 46 XY DSD physiology from puberty onwards, 46 XY DSD athletes
have been able to develop an advantage that is so significant that it
should be considered unfair in the specific international female events
that World Athletics targets. It is here that scientists argue World
Athletics falls short (see the Twitter threads here and here).
Moving the goalposts
As already mentioned, today’s DSD Rules are not the same as the DSD
Regulations that Semenya challenged. The IAAF amended the DSD
Regulations both before and after the CAS heard Semenya’s case against
them. The result was that shortly before the CAS hearing, the DSD
Regulations applied to five disciplines rather than the seven referred
to in the CAS judgment.
World Athletics even sent a lawyer to Play The Game 2019. The lawyer didn’t participate in a debate about the science underpinning the DSD Regulations, but distributed a pre-prepared Paper attacking the presenters and their arguments. Anyone interested in whether World Athletics succeeded should read this article.
The World Athletics Paper references ‘recent research’
involving the administration of 10mg of testosterone cream daily to
athletes. The research found that athletes who administered the cream
performed better. Of course they did. This is doping.
A person doped with testosterone is getting something extra.
Testosterone doesn’t discriminate. If you administer testosterone, an
athlete’s physiology has something that it didn’t have before. Everyone
knows this. It is the reason why the application of exogenous (external)
testosterone is prohibited in sport.
The same is not true for 46 XY DSD athletes. Their testosterone levels are endogenous (internal), and are their hormonal normal.
The forerunner to the DSD Rules were the Hyperandrogenism Regulations. The CAS allowed
the IAAF to terminate Dutee Chand’s case against them by promulgating
the DSD Regulations. That the CAS would allow a serious grievance to be
terminated by simply promulgating new Regulations should ring alarm
bells for anyone interested in jurisprudence.
The CAS Decision also raised questions about whether athletes had
given their consent for samples collected for anti-doping purposes to be
used for gender verification purposes. As previously reported,
the 2021 World Anti-Doping Code has been amended to allow anti-doping
samples to be used in this way. Up until 2019, the World Anti-Doping
Agency’s International Standards (ISL) prohibited such use.
The Hyperandrogenism were promulgated in May 2011. Article 6.3 of the World Anti-Doping Agency’s (WADA) 2012 International Standard for Laboratories
(ISL) mandates that written consent is required from any athlete for a
sample collected for anti-doping purposes to be used in any other way. ‘No Sample may be used for any purpose other than as described in Article 6.2 without the Athlete’s written consent’, it reads. ‘Samples
used for purposes other than Article 6.2 shall have any means of
identification removed such that they cannot be traced back to a
Such a prohibition was repeated in the 2015 ISL, but is not present in the 2019 ISL. However, Annex 2.1 of the 2019 ISL mandates: ‘The
Laboratories and WADA-Approved Laboratories for the ABP shall follow
the Helsinki Accords and any applicable national standards as they
relate to the involvement of human subjects in research. Voluntary
informed consent shall also be obtained from human subjects in any drug
administration studies for the purpose of development of a Reference
Collection or proficiency testing materials.’
‘In medical research involving human subjects capable of giving
informed consent, each potential subject must be adequately informed of
the aims, methods, sources of funding, any possible conflicts of
interest, institutional affiliations of the researcher, the anticipated
benefits and potential risks of the study and the discomfort it may
entail, post-study provisions and any other relevant aspects of the
study’, reads Article 26 of the World Medical Association’s (WMA) Helsinki Declaration. ‘The
potential subject must be informed of the right to refuse to
participate in the study or to withdraw consent to participate at any
time without reprisal. Special attention should be given to the specific
information needs of individual potential subjects as well as to the
methods used to deliver the information.
‘After ensuring that the potential subject has understood the
information, the physician or another appropriately qualified individual
must then seek the potential subject’s freely-given informed consent,
preferably in writing. If the consent cannot be expressed in writing,
the non-written consent must be formally documented and witnessed.’
The IAAF’s Competition Medical Guidelines (click here
to download) also emphasise that they comply with the Helsinki
Declaration. The CAS Decision in Semenya’s case highlights serious
questions as to whether athletes provided consent for their anti-doping
samples to be used in Paper One. ‘The IAAF relies on the initial consent provided for doping control purposes’, reads the Decision.
‘ASA repeatedly asked the IAAF to disclose copies of the signed consent
forms provided by the athletes whose samples and data form the basis of
the analysis in BG17 [Paper One]. The IAAF has declined to do
so. The Panel considers that it can therefore be inferred that no such
forms exist, or that if they do exist they do not assist the IAAF on
It would therefore appear that World Athletics relied on evidence
obtained from athletes in breach of WADA’s ISL, its own Competition
Medical Guidelines and the WMA’s Helsinki Declaration in order to
support the DSD Rules. This would also appear to invalidate part of its
evidence base, but the CAS Panel didn’t consider this to be important,
and the SFT didn’t assess the reliability of the evidence in support of
The United Nations, Human Rights Council, and the WMA itself have
already expressed concern about this. In September 2018, the Human
Rights Special Procedures body of the United Nations wrote
to Sebastian Coe, President of World Athletics. Three UN Special
Rapporteurs for physical and mental health; torture; and discrimination
against women highlight ‘serious concerns’ that the DSD Regulations:
• Contravene human rights standards and norms;
• do not present evidence justifying that they pursue a legitimate aim;
• are not reasonable and objective;
• do not demonstrate proportionality between their aim and effects.
World Athletics’ response was to accuse the UN of not understanding its Rules. ‘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
for Sport’, wrote World Athletics in a statement to the BBC, after the UN Human Rights Council reiterated its concerns in March last year. ‘There
are many generic and inaccurate statements contained in the motion
presented to the UN Human Rights Council so it is difficult to work out
where to start’.
In July this year, the Human Rights Council urged
UN Member States to prohibit the enforcement of the DSD Rules. Its
Report was unequivocal that the DSD Rules represent an infringement of
the right for athletes with a DSD to compete. ‘The implementation of
female eligibility regulations denies athletes with variations in sex
characteristics an equal right to participate in sports and violates the
right to non- discrimination more broadly’, it outlines.
In May last year, the WMA reiterated its advice to physicians not to implement the DSD Rules. “We have strong reservations about the ethical validity of these regulations”, said WMA President Dr. Leonid Eidelman. “They
are based on weak evidence from a single study, which is currently
being widely debated by the scientific community. They are also contrary
to a number of key WMA ethical statements and declarations, and as such
we are calling for their immediate withdrawal.”
“Caster’s legal defeat is not a victory for World Athletics, nor
does it legitimize the CAS or global sport’s ‘system of justice’”, said Brendan Schwab, Executive Director of the World Players Association (WPA), in a statement. “Despite
the World Athletics eligibility regulations being condemned as a
violation of the human rights of athletes by authorities as eminent as
the United Nations High Commissioner for Human Rights
(UNHCHR), Caster’s human rights could not be properly considered at any
stage of the process. In the same report the UNHCHR has identified how
sport’s justice system systemically denies athletes of their right to an
effective remedy where their human rights have been violated.
“World Athletics flagrantly maintains that, as a private body, it has no responsibility to respect
Caster’s internationally recognised human rights. It argued that her
rights are to be primarily determined in accordance with the
Constitution of World Athletics and the Olympic Charter of the
International Olympic Committee (IOC), neither of which uphold the human
rights of athletes.”
Herein lies the problem. Sport’s closed arbitration system allowed
World Athletics to avoid all of these serious issues, raised by major
international bodies, and to welcome the SFT’s inability to consider
them as a victory.
Thin end of the wedge
Nobody is arguing that World Athletics shouldn’t be able to exclude ‘male’ athletes from certain ‘female’
categories. World Athletics clearly thinks is approach to its DSD Rules
is in line with this proposition, otherwise it wouldn’t have spent so
much time, effort, and money defending it. If ‘male’ athletes
were inclined to compete in female sport, they would dominate it
(although there is no evidence that anyone who identifies as a ‘man’ has ever sought to compete in ‘female’ sport).
Given what we know about determination to win and doping, it isn’t
unreasonable to assume that unscrupulous coaches would seek out DSD
athletes in order to win, as Paula Radcliffe highlighted.
World Athletics is right to point to the prevalence of DSD athletes in
the Restricted Events as evidence that they may hold an advantage over
XX karyotype athletes who have not benefitted from testosterone’s action
on their physiology from puberty onwards.
But is such an advantage ‘unfair’? World Athletics thinks so. It is ‘category defeating’, to borrow its grandstand term. But it doesn’t appear to have done any other research as to how ‘unfair’
the advantage is compared to other advantages within the Restricted
Events. The playing field is never level in any sporting event. Does
height or stride length also confer an advantage in the Restricted
Nobody is saying that World Athletics shouldn’t be free to exclude ‘male’ athletes from its ‘female’
categories. However, the danger is that by pegging rules on who can
compete in its female category to natural testosterone levels, World
Athletics risks making people ill. World Athletics is effectively saying
to a 46 XY DSD athlete: use medication not designed for your physiology
to reduce your natural hormonal levels, otherwise you cannot compete
internationally in our restricted events as a female.
In addition, some of the Restricted Events appear to be arbitrary,
leading to conjecture that the DSD Rules are designed to target Caster
Semenya. World Athletics refused to listen to the CAS when it asked
it to consider deferring the application of the Rules to the 1,500m and
one mile events, due to lack of evidence. But this didn’t trouble the
‘Although the CAS has expressed concerns about the inclusion of
these two test events in the DSD Rules and indicated that the IAAF might
consider deferring the application of this rule to such events, it
nevertheless considered that the IAAF had provided evidence for all
“covered events”, as well as a rational explanation as to how this
category was defined’, reads the SFT Decision. ‘In these circumstances, this result cannot be qualified as contrary to public order’.
The problem is that the pegging of eligibility rules in female
categories to natural testosterone levels doesn’t end with events run
between 400m and one mile, or with the DSD Rules. The CAS Decision
permitted World Athletics to add further events to the Rules in the
future. ‘The majority of the Panel observes that it may be that, on
implementation and with experience, certain factors, supported by
evidence, may be shown to affect the overall proportionality of the DSD
Regulations, either by indicating that amendments are required in order
to ensure that the Regulations are capable of being applied
proportionately, or by providing further support for or against the
inclusion of particular events within the category of Restricted Events’, read an Executive Summary of its Decision.
Transgender females are currently not permitted to use testosterone
at levels above 10 nmol/L if they are to be permitted to compete in
female sport. Now that World Athletics has got its DSD Rules over the
line, they also face the possibility that permissible limits will be
reduced, potentially making them ill.
This is why nothing has changed with the SFT ruling. Realistically, I
don’t think that anybody expected Caster Semenya to prove that the CAS
Decision violates Swiss public policy.
What the SFT decision has highlighted, for athletes, is that
appealing such issues through sport’s closed arbitration system is
pointless. The CAS allowed the IAAF to amend the DSD Rules before,
during, and after its hearing. It held that the Rules are discriminatory
and despite this, the IAAF was able to ignore its warning about the
inclusion of the 1,500m and one mile events due to lack of evidence
without repercussion. The SFT held that none of this qualifies as a
threat to Swiss public policy. Case closed.
Kristen Worley was only successful
in her appeal that International Olympic Committee (IOC) policies had
infringed her human rights by taking her case outside of sport’s closed
arbitration system. Claudia Pechstein was only partially successful
by taking her case to the European Court of Human Rights (ECHR), which
forced the CAS to open its hearings to the public. This has not gone well so far.
It would appear that World Athletics doesn’t want to face similar battles to the Semenya case in the future. ‘The decision of the CAS will be final and binding on all parties, and no right of appeal will lie from that decision’, reads Article 5.5 of the DSD Rules.
‘All parties waive irrevocably any right to any form of appeal, review
or recourse by or in any court or judicial authority in respect of such
decision, insofar as such waiver may be validly made’. Perhaps World Athletics knows that the CAS provides a sensitive ear.
The SFT decision doesn’t bring us any closer to ascertaining whether
it is ethical for World Athletics to require 46 XY DSD females to self
medicate their natural biology in order to be eligible for certain
international female events. Caster Semenya was brought up as a woman,
lives as a woman and is legally recognised as a woman, as the DSD Rules
require. The action of testosterone on her XY karyotype has provided her
with a distinct advantage, but it is an advantage she has had to work
on throughout her life, just as other athletes play to their strengths.
Is it right to penalise all DSD women for her success?