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Opinion The Caster Semenya decision and how sports regulate gender

Cyclist Kristen Worley trains at the Velodrome in London, Ont., on Aug. 30, 2007.

GEOFF ROBINS/The Globe and Mail

Kristen Worley is a transitioned XY female athlete, and a gender-diversity adviser to organizations that include the Commonwealth Games Federation. She has just published Woman Enough: How a Boy Became a Woman and Changed the World of Sport. This article was written with Andy Brown, editor of the Sports Integrity Initiative

Last week, Caster Semenya won the women’s 800-metre race at the Diamond League season opener in Doha, Qatar, with a time of 1 minute, 54.98 seconds. In the 800 metres, the South African holds the fourth-fastest time in history. Out of the 10 best times ever recorded, she is the only woman to accomplish such a time in the past decade.

But rather than being celebrated, Ms. Semenya’s performances have been scrutinized. This is because the International Association of Athletics Federations (IAAF) argues that Ms. Semenya’s natural testosterone levels give her such an unfair advantage over other female athletes in running events between 400 metres and one mile that, if she is to compete fairly, she must take medication to reduce those levels, or be excluded from international competition

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The IAAF rules in question are the Eligibility Regulations for the Female Classification (Athletes with Differences of Sexual Development). Ms. Semenya launched a challenge to the DSD regulations – as they have become known – last June.

Gender tests were first conducted on her 10 years ago, after she won gold at the Berlin 2009 IAAF World Championships, when she was 18.

“She is a woman, but maybe not 100 per cent,” Pierre Weiss, secretary general of the IAAF, told the news media at the time. “We have to see if she has an advantage from her possibly being between two sexes compared to the others.”

I am an XY female-transitioned cyclist, who has battled sport’s attempts to prevent me from competing in female sport for almost 20 years. When I first heard Mr. Weiss’s quote back in 2009, I realized that Ms. Semenya would face similar issues. As in my case, Ms. Semenya’s involves human-rights issues that need to be settled outside of sport.

On May 1, the international Court of Arbitration for Sport (CAS) dismissed Ms. Semenya’s application for arbitration, ruling that her legal team had failed to demonstrate that the DSD regulations are invalid. Ms. Semenya has lost her case and the CAS has upheld the DSD regulations, but the CAS’s wording is crucial. That wording suggests that its focus was on whether the IAAF’s purpose in regulating this area is valid, rather than on whether the DSD regulations stand up to scientific and ethical scrutiny.

The World Medical Association (WMA) doesn’t think they do stand up, and has twice urged medical practitioners not to implement them. “It is in general considered as unethical for physicians to prescribe treatment for excessive endogenous testosterone if the condition is not recognized as pathological,” it warned on April 25, ahead of the CAS decision. “The WMA calls on physicians to oppose and refuse to perform any test or administer any treatment or medicine which is not in accordance with medical ethics, and which might be harmful to the athlete using it, especially to artificially modifying blood constituents, biochemistry or endogenous testosterone.”

On May 2, after the CAS decision, the WMA reiterated that warning.

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In September of last year, the United Nations also issued a warning that the DSD regulations contravene international human-rights norms and standards.

I have faced similar discrimination and serious health issues after being forced to lower my testosterone to levels incompatible with my XY phenotype, due to similar regulations that were produced by the International Olympic Committee (IOC). Although Ms. Semenya’s case is different from mine, both concern regulations that require a healthy XY female athlete to lower natural testosterone levels.

In very general terms, females have two types of the same chromosome (XX) and males have two distinct chromosomes (XY). However, many variations on this basic theme are possible. Although my case didn’t concern the IAAF, it is significant because, on July 18, 2017, the Ontario Human Rights Tribunal recognized that similar policies originating from the IOC had infringed on my human rights.

The CAS decision in Ms. Semenya’s case illustrates why the arbitration body is not competent to deal with such disputes. The CAS was established by international sports bodies to make rulings on whether sporting rules have been correctly applied. The CAS is mandated to rule on sporting disputes, and not human-rights issues, as in cases such as Ms. Semenya’s, where IAAF rules demand that she achieve a testosterone limit that is too low for her XY phenotype, which could cause her medical harm.

The CAS knows that, due to the autonomy of sport, it can get away with this: Sport’s closed jurisprudence system ties athletes to arbitrating all disputes at the CAS, preventing recourse to ordinary courts of law.

That’s why my own case was so important – and why the IOC was so concerned about losing it: It literally wrote that a successful application on my part would damage the Olympic movement and the autonomy of sport.

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The last line of the CAS statement on Ms. Semenya’s case notes that its decision may be appealed to the Swiss Federal Tribunal – Switzerland’s Supreme Court – within 30 days. But the Tribunal can rule only on very limited grounds.

And you won’t get a different result inside the sporting system. Toronto’s Superior Court of Justice rejected litigation by the IOC that aimed to prevent my case being heard in a human-rights tribunal. The IOC later successfully argued that my application was out of time, leaving other sporting bodies to take the hit for IOC policies they had implemented.

The World Anti-Doping Agency did litigate its way out of my case on a technicality. The actions of both it and the IOC showed they did not want to appear in a forum where they could be held liable for human-rights violations. They fear that a civil process outside the CAS would delegitimize the CAS, threaten the “autonomy of sport," and that the IOC could be led into bigger, civil, legal issues, which could lead to a class-action lawsuit.

However, under my settlement agreement, the International Cycling Union, the Ontario Cycling Association and Cycling Canada committed to advocating for the establishment of standards and guidelines relating to XY females based on scientific research – the suggestion being that they were not doing so originally. It also committed Canadian sport authorities to put forward such information to the IOC and WADA in order to promote a review of the IOC’s Transgender Guidelines.

When examining Ms. Semenya’s case, my case is significant because many of the same people that authored scientific research in support of the Differences of Sexual Development regulations were also members of the panel that advised the IOC on its Transgender Guidelines. Serious flaws have been identified with the scientific data that underpins the DSD regulations, and with a study published by medical physicist Joanna Harper, in support of the Transgender Guidelines.

It is understood that the IOC was awaiting the outcome of the Semenya case before deciding whether to amend its Transgender Guidelines for the 2020 Olympics in Tokyo. The Transgender Guidelines are likely to have a larger impact on XY female athletes than did the DSD regulations, because they advise that international federations should apply testosterone limits to XY female athletes across sport – not just in certain track-and-field events.

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This is a concern because the health of those athletes could be compromised.

And the health impact to the individuals is significant – I’ve lived it. My therapeutic use exemption (TUE) for testosterone took three years to grant, and was too low for my XY physiology for me to maintain ordinary health.

I am a cyclist. On a long ride, an athlete usually loses water, then starts to burn fat. I would normally lose about eight pounds on a 120-kilometre-to-140-km ride. This is because during that ride, the muscles weaken and the brain sends a message to the sex organs to send more testosterone. As I am an XY-transitioned athlete, I have no sex organs, so that message wasn’t being responded to. It would take me four days to recover from a ride; as well, I couldn’t build any muscle and my body temperature varied wildly.

My TUE allowed 40 milligrams of testosterone, once daily. It was not enough for my body to maintain health. On June 25, 2011, I had to admit that my TUE wasn’t working at the Canadian Road World Championships, when my body shut down and I left the velodrome in Brampton, Ont., in tears after recording a DNF (Did Not Finish).

The CAS itself has admitted that the health impact of forcing XY DSD athletes to lower their natural testosterone is not fully understood. “The side effects of hormonal treatment, experienced by individual athletes could, with further evidence, demonstrate the practical impossibility of compliance which could, in turn, lead to a different conclusion as to the proportionality of the DSD Regulations,” reads its recent statement in the Semenya case.

I felt abandoned by Canadian sporting bodies after they attempted to insert a clause into Bill C-279 – a bill that was attempting to prevent discrimination based on gender identity; the clause would have exempted those sports bodies from the bill. “If you want to come to the Games, you play by my rules,” I was told by the IOC’s then-medical and scientific director, Patrick Schamasch. “I can do anything I want.”

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Because of sport’s attitude, I had to turn around the years of anger I felt, and the harm I suffered in my head, in order to channel it for the benefit of future athletes. I realized that in order to protect such athletes from conjecture and abuse, sport’s regulations in this area need to be challenged outside its closed jurisprudence system. But to do this, I had to sacrifice my sporting career.

I would hope that a legacy of my battle is that Ms. Semenya does face a future in female sport, even if she is confined to international female running events that are longer than one mile.

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