The recent Court of Arbitration for Sport (CAS) ruling which will force athlete Caster Semenya to take medication to significantly reduce her testosterone levels in order to run internationally in events between 400m and one mile, will have far-reaching implications – not just for Caster but for other transgender and intersex people in sport.
The ruling, which the CAS admits is discriminatory and will be difficult to implement, sets a deeply concerning precedent by regulating how people who are different in terms of biology can participate in sports.
As stated in Sonke’s press statement of 20 February 2019, a ruling that requires a woman to change her body in order to compete, discriminates on the basis of gender and sex and is a clear contravention of the right to equality and non-discrimination, the right to physical and bodily integrity – among other human rights afforded to all under international law.
We note a recent United Nations Human Rights Council resolution on the Elimination of discrimination against women and girls in sport, which: “Expresses concern that discriminatory regulations, rules and practices that may require women and girl athletes with differences of sex development, androgen sensitivity and levels of testosterone to medically reduce their blood testosterone levels contravene international human rights norms and standards, including the right to equality and nondiscrimination, the right to the highest attainable standard of physical and mental health, the right to sexual and reproductive health, the right to work and to the enjoyment of just and favourable conditions of work, the right to privacy, the right to freedom from torture and other cruel, inhuman or degrading treatment and harmful practices, and full respect for the dignity, bodily integrity and bodily autonomy of the person.”
We fully agree with The International Lesbian, Gay, Bisexual, Trans and Intersex Association (Pan Africa ILGA) who have stated: “This policy is based on gender essentialism which assigns gender according to biology. This is exclusionary as it excludes various identities.”
There is no one way to be female and this ruling illustrates the CAS and the International Association of Athletics Federations’ deeply flawed, binary and racist understanding of gender. As cultural anthropologist and bioethicist, Katrina Karkazis writes in The Guardian: “…to reduce sex to a single trait is to profoundly mischaracterise decades of research into sex biology. The science is clear: there is no single physiological or biological marker that allows for the simple categorisation of people as male or female.”
It is alarming that the three-judge CAS panel admits that the ruling is discriminatory but that: “…such discrimination is a necessary, reasonable and proportionate means of achieving the IAAF’s aim of preserving the integrity of female athletics in the Restricted Events.”
“There is nothing ‘reasonable’ about this type of discrimination,” says Bafana Khumalo, Sonke’s Acting Co-Executive Director. “In ‘preserving the integrity of female athletics’, the CAS has decided then the rights of some – in this case the minority of female athletes with differences in sexual development (DSD), are less important that the rights of others, the majority of female athletes without DSD – and this is deeply problematic.”
Sonke stands with Caster Semenya and all transgender and intersex people who will be affected by this discriminatory ruling.