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Sports Semenya’s battle against the IAAF has become a rallying cry for human-rights activists

When Caster Semenya crossed the finish line to win the gold medal in the 800 metres at the 2016 Olympic Games in Rio, she didn’t get the customary hugs and handshakes from her beaten rivals.

Instead those trailing in her wake, including Canada’s Melissa Bishop, who came fourth, embraced each other and coolly stood aside while Semenya awkwardly reached out. "Everyone can see that it’s two separate races, so there is nothing I can do,” said Britain’s Lynsey Sharp, who finished sixth. That paled in comparison to what Italy’s Elisa Cusma once said after being beaten by Semenya: “These kinds of people should not run with us. For me, she is not a woman. She is a man.”

Semenya has been dogged by comments similar to that since she burst on the scene in 2009 as an 18-year-old phenom who took gold at the world athletics championships in the 800 metres with the fifth-fastest time in history. Since then she’s won two Olympic golds, two more world titles and come close to setting the world record. Her success has raised questions about sports, race, gender, fairness and where we draw the line when it comes to women competing against women.

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Next month the Court of Arbitration for Sport will take the debate even further when it decides whether the governing body of track and field, the International Association of Athletics Federations (IAAF), can impose a limit on the maximum level of testosterone female athletes can have in order to run in IAAF-sanctioned events, but only in races between 400 metres and 1,500 metres. Anyone who doesn’t meet the threshold must either compete as a man or take drugs to reduce their testosterone.

Semenya is at the centre of the case and with the help of two Canadian lawyers she could set a precedent for how sports organizations treat women such as her who have differences in sexual developments, or DSDs, which cause high levels of testosterone. She could also open the door for transgender athletes to participate in more sports and compete at the 2020 Olympic Games in Tokyo. “It’s an extraordinarily significant case,” said Bruce Kidd a former Canadian Olympian and former principal of the University of Toronto Scarborough. ”Because it’s triggered by an official’s gaze on body type, it affects every woman in the world." Kidd said that the IAAF ruling creates a chill among female athletes "because of the expectations it creates. If you don’t look like a real woman you’ll be tested.”

The IAAF insists that it’s not targeting Semenya or judging women with DSDs. It simply had to draw a line somewhere. The organization has “a responsibility to ensure a level playing field for athletes,” said IAAF president Sebastian Coe, a former world-record holder in the 800 metres and 1,500 metres. According to the IAAF, high testosterone gives DSD athletes a 6-per-cent advantage. And it says the number of DSD competitors at the elite level in track is 140 times higher than in the general population. “It’s nothing to do with racism, feminism, or the genetic advantage of a single person,” tweeted Britain’s Paula Radcliffe, who holds the world record in the women’s marathon. "The effects of elevated testosterone on performance can’t be ignored.”

Many others disagree and argue that there’s no scientific evidence proving that DSD runners have a major advantage. The only significant study was done by the IAAF in 2017, and it was torn apart last year by a group of researchers who found so many data errors they concluded that up to 32 per cent of the results were flawed. “If this research is used as the basis for anything, any sort of regulation, it’s a huge setback for athletes and for international sport,” said Roger Pielke, a doctor and the director of the Sports Governance Center at the University of Colorado, who reviewed the IAAF’s work. The IAAF has countered that while some mistakes were made, the study’s conclusions remained the same, that female athletes with high testosterone have a 1.8-per-cent to 4.5-per-cent competitive advantage in middle-distance races and events such as the hammer throw and pole vault. Other research has put the advantage higher, the organization maintained.

Semenya’s battle against the IAAF has also become a rallying cry for human-rights activists and made her a national hero at home. It has galvanized South African politicians, sports organizations and media commentators because it pushes some of the county’s hottest of hot-button issues: race, gender, justice, freedom and a growing belief that Africans are persecuted on the world stage. Sports minister Tokozile Xasa has denounced the IAAF’s actions “as tantamount to modernizing barbarism” and she said it wasn’t a coincidence that the rule targeted Semenya’s events. “The regulations were designed to exclude her,” Xasa said. The South African government has gone all out for Semenya, providing financial and legal support to her appeal and complaining to the United Nations Human Rights Council, which recently adopted a resolution denouncing discrimination against women and girls in sport. Others voicing their support include tennis legend Billie Jean King and AthletesCAN, which represents Canadian national team members. “No woman should be required to change her body to compete in women’s sport,” King said in an open letter to the IAAF signed by 60 athletes.

While Semenya’s case has generated global attention, it’s not entirely new. The IAAF and the International Olympic Committee have spent decades policing female bodies and trying to verify who is, and isn’t, female.

The earliest case surfaced during the 1936 Olympics, less than a decade after women were allowed to compete in track and field. The IAAF and IOC feared men would masquerade as women in order to scoop up medals and they kept a watchful eye out for any imposters. They got their first scare when Stella Walsh lined up against fellow American Helen Stephens in the 100-metre final. Both women faced accusations they were really men because of their masculine appearances, and officials forced them to undergo medical examinations before the race. They passed and finished first and second with Stephens taking gold. After Walsh died in 1980 an autopsy determined she had DSD.

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The IAAF and IOC adopted mandatory sex examinations in the 1960s, forcing female athletes to appear with their pants down in front of a panel of judges who issued “certificates of femininity” to those who passed. The “nude parade” was eventually replaced by a sex test that could detect X and Y chromosomes. A positive result meant the athlete had XX chromosomes and was female while a negative score revealed XY chromosomes, indicating a male. Critics said the test was misleading because it couldn’t account for women with a common DSD called androgen insensitivity syndrome or AIS. People with AIS have XY chromosomes, but their bodies didn’t respond to male hormones during development. While they don’t have a womb or ovaries, they usually have undescended testes located in their pelvis or abdomen and their genitalia looks male, female or a combination of both.

It took the case of Maria Jose Martinez-Patino, an AIS hurdler from Spain, to end the sex test. Patino was tearing up the track in the 1980s and she passed the test in 1983 with an XX showing. But when she arrived at the 1985 World University Games in Japan, she’d forgotten her certificate of femininity and had to take the test again. This time it showed XY. Patino was immediately barred from competing and lost her athletic scholarship. Spanish track officials also erased her results from the country’s record books. Patino’s life fell apart. “I felt ashamed and embarrassed,” she later wrote. Instead of fading away, Patino fought back. She spent years trying to clear her name and explain AIS. "When I was conceived, my tissues never heard the hormonal messages to become male,” she wrote. “I could hardly pretend to be a man; I have breasts and a vagina. I never cheated.” She eventually won her appeal and was reinstated in 1988 but she never lived up to her earlier promise and retired in 1992, turning to coach and a career in academia. The IAAF and IOC abandoned the test in the late 1990s and for the first time since 1964, women were not subject to any mandatory sex verification at the 2000 Olympics.

The issue didn’t go away. The IAAF and IOC began pondering new regulations and they reserved the right to pursue ad hoc cases. That led them to Semenya.

By 2008 Semenya had won medals at the world junior championships, the Commonwealth Youth Games and the African junior championships where she set the national record in the 800 metres. She was a rising star who had come out of nowhere, born in a remote corner of the northern Limpopo province in a home that had no running water or electricity. By the time she reached the 2009 world championships in Berlin the IAAF was already suspicious and demanded she undergo medical tests. The IAAF claimed her rapid improvement – 25 seconds in the 1,500 metres and eight seconds in the 800 metres – raised questions about doping, but the organization’s real concern was whether she was female. Soon after her victory in Berlin, Semenya was banned from competing. In July, 2010, the IAAF issued a statement clearing her to compete and adding cryptically; "The process initiated in 2009 in the case of Caster Semenya has now been completed.” That process is believed to have included testosterone-reducing drugs.

A year later, the IAAF announced a new policy. From now on the determining factor in female testing would be testosterone and the IAAF set the bar at 10 nanomoles a litre. The organization argued the level was reasonable since the typical female range for testosterone is between 0.12 to 1.79 nmol/L while for men it’s 7.7 to 29.4 nmol/L. The consequences for Semenya were profound. While it’s not clear what steps she was forced to take by the IAAF, her times dipped noticeably.

Meanwhile in India a teenage sprinter was raising eyebrows in track circles. Dutee Chand had grown up much as Semenya did, in a rural village with no running water. She won three golds as an 18-year-old at the Asian junior athletics championships in 2014, but her masculine look caused suspicion. When she returned home, India’s track officials demanded she undergo a “gender-verification test … so as to avoid any embarrassment to India in the international arena at a later stage.” She went through a series of examinations that included questions about her body hair, menstrual cycle and hobbies. In the end she was banned from competing and the national body cited the IAAF’s testosterone rule. “I was born a woman, reared up as a woman,” she said in a statement to track officials. “I identify as a woman and I believe I should be allowed to compete with other women.”

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Her case caught the attention of Payoshni Mitra, an athletes’ rights activist in India who quickly reached out to help. “When I met Dutee she thought only had two options; quit or take medical steps. I told her there is a third option: challenge,” Mitra recalled. She called her friend Bruce Kidd, who she knew from international gatherings, as well as Katrina Karkazis, an expert on global health justice at Yale University. They agreed that Chand should challenge the IAAF rule at the CAS. Kidd happened to be at a Commonwealth sports ministers meeting at the time and he pressed the Indian delegates to take up the cause. They agreed but asked Kidd to find a lawyer. He contacted Jim Bunting, a young lawyer at Davies Ward Phillips and Vineberg in Toronto who got his start in sports law by helping a friend remain on the Canadian alpine ski team after he’d been cut because of an injury. Bunting agreed to take the case pro bono and brought in his colleague Carlos Sayao.

The lawyers argued the IAAF regulation was discriminatory and based on a lack of scientific evidence. They said there were so many factors that determined athletic performance – such as training facilities and genetic abnormalities such as extra height and higher lung capacity – that it was impossible to say high levels of natural testosterone made any real difference. The arguments won over the CAS and in 2015 it suspended the IAAF rule, saying that it was ”not self-evident that a female athlete with a level of testosterone above 10 nmol/L would enjoy the competitive advantage of a male athlete.” The panel said it would revisit the issue if the IAAF returned within two years with new research.

Chand was reinstated and qualified for the 2016 Olympics, while Semenya re-emerged as a powerhouse. But the IAAF came back, releasing its study on testosterone in 2017 and announcing a new rule in 2018 that dropped the allowable testosterone level to 5 namol/L. Now it was Semenya’s turn to appeal and she asked Bunting and Sayao for help. Last month the CAS held a week-long hearing on the case behind closed doors in Lausane, Switzerland. Bunting and Sayao declined comment, citing the confidentiality of the proceedings.

One of the IAAF’s witnesses was Joanna Harper, a doctor and transgender runner in Oregon who’s also a medical adviser to the IOC. She argued the IAAF’s new level was appropriate. “If you’re a sports-governing body and you’re trying to create categories in which one would have meaningful and equitable competition, then this is a reasonable approach to take,” she said in an interview. She added that if Semenya wins, it will have widespread ramifications. “There is no doubt that what will happen next is a trans athlete will sue in whatever sport she competes in, she will sue with the CAS for the right to compete in women sports without undergoing hormone therapy,” she said. And because the number of transgender people is much higher than those with DSDs “you’re talking about a hundred-fold larger potential impact on women sports.”

Harper was part of an IOC panel that recently recommended the same 5 nmol/L level for the Olympics. The recommendation was based on new testing techniques and it took into account various DSD conditions. She’s also convinced there are far more DSD athletes in track than most people realize. That’s based on a study she did that looked at female athletes she assumed had DSDs. They captured 30 medals in middle-distance events at world championships and Olympic Games in the past 25 years, Harper said. “The numbers [of DSD athletes] are bigger than you might think,” she said.

Patino too has come out in favour of testosterone limits. She supported the IAAF during the Chand case and told the panel that the federation’s restriction was necessary “in order for athletic competition to be carried out equally”.

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The CAS ruling is expected by the end of April and whatever the result Semenya won’t stop running. She’s kept largely silent about the controversy but in a rare outburst last year she let her feelings out. “I just want to run naturally, the way I was born,” she said. “It is not fair that I am told I must change. It is not fair that people question who I am. I am Mokgadi Caster Semenya. I am a woman and I am fast.”

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