Sonke Gender Justice joins the South African government, the Foundation for Human Rights, the Commission for Gender Equality, the Women’s Sport Foundation and the many other South African and international organisations and individuals who advocate for human rights, in expressing support for Caster Semenya and Athletics South Africa (ASA), as they appeal the International Association of Athletics Federations (IAAF) ruling on testosterone levels this week at the Court of Arbitration for Sport (CAS) in Lausanne, Switzerland. The IAAF ruling states Semenya must lower her natural testosterone levels if she is to keep competing in women’s athletics.
According to the IAAF, the limit which it intends to introduce on 26 March 2019 is to, “empower girls and women”. Under the policy, Semenya, the two-times Olympic 800m champion, will have to use medication to artificially lower her natural testosterone levels to five nanomoles per litre for at least six months in order to be allowed to compete as a woman. According to the IAAF this is necessary to, “ensure fair competition for all women”.
In 2011, the IAAF introduced regulations which placed a limit on testosterone levels for female athletes. This was suspended by CAS in 2015 after an appeal by Indian sprinter Dutee Chand. CAS gave IAAF two years to produce scientific evidence to justify its claim that high levels of testosterone in female athletes enhances their performance and gives them an unfair advantage.
In a recent statement, the IAAF has said it, “is confident that the scientific basis by which it has defined the limits of the category – limits which will apply equally to all competitors – will stand up to challenge in the CAS.” To this end the IAAF have called on three professors of endocrinology, a sports law expert and a transgender medical physicist to support its testosterone limit at the CAS this week.
However, along with other human rights advocates, Sonke notes that the IAAF ruling is deeply problematic for a number of reasons:
1. Defining a ‘normal’ range of testosterone is arbitrary. Why should the IAAF get to decide what is normal and what isn’t?
2. The regulation is discriminatory. 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. Discrimination based on gender and sex is prohibited under every human rights treaty – including the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, which under their common article 3 provide for the rights to equality between men and women in the enjoyment of all rights. The Convention on the Elimination of Discrimination Against Women (CEDAW) is specifically dedicated to the realisation of women’s human rights. This logically infers that IAAF too, is bound by these practices.
3. The scientific evidence remains lacking. While the IAAF believe they have solid scientific basis for their regulation, experts are far from united on the topic. Andrew Gelman, a professor of Statistics at Columbia University has described the analysis as, “such a mess that I can’t really figure out what data they are working with, what exactly they are doing, or the connection between some of their analyses and their scientific goals”. As an article in The Guardian states, “Gelman is a rare voice in all this, one without any emotional investment, or even an interest in the sport. His only concern is the work. And he found it lacking.” In addition, South African law professor Steve Cornelius resigned from his position on the IAAF Disciplinary Tribunal in May 2018 in protest over the IAAF rules saying, “Sadly I cannot in good conscience continue to associate myself with an organisation which insists on ostracising certain individuals, all of them female, for no reason other than being what they were born to be.”
4. These regulations appear to be aimed at unfairly disadvantaging Semenya and other hyperandrogenic athletes and/or those with differences of sexual development (DSD). Gender Classification Regulations republished by IAAF in 2018 only apply to distances between 400m and one mile – including 400 metres, hurdles races, 800 metres, 1 500 metres, one mile races and combined events over the same distances – these are events that Semenya runs.
A statement issued this week by Semenya’s legal team states Semenya believes, “she and other women affected by the regulations should be permitted to compete in the female category without discrimination.” And that they should be, “celebrated for their natural talents as are all other athletes with genetic variations.” The statement continues, “The IAAF’s regulations do not empower anyone. Rather, they represent yet another flawed and hurtful attempt to police the sex of female athletes.”
Like other exceptional athletes competing today, Caster Semenya has been born with natural talents. These gifts should not be grounds for blatant discrimination and the abuse of fundamental human rights.
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