Discrimination to Protect Discrimination: The CAS’s Decision on Semenya & ASA vs. IAAF

By Anna Posbergh

A year ago, I wrote about the concerns regarding the International Association of Athletics Federations’ (IAAF) newest policy on testosterone regulation and the science “supporting” their policy. In this piece, I critiqued the IAAF’s proposed policy around testosterone regulation of athletes with higher levels of naturally occurring testosterone. Specifically, I focused on the discriminatory nature of this policy and failure of the science behind it to corroborate the IAAF’s assertion that endogenous testosterone unfairly benefits female athletes.

Since then, three scientists have published a peer-reviewed article, further detailing the violation of scientific validity in this study. Yet, on Wednesday, the Court of Arbitration for Sport (CAS) upheld the IAAF’s 2018 policy, stating that the IAAF’s testosterone regulation was a “necessary, reasonable, and proportionate means of achieving the legitimate objective of ensuring fair competition in female athletics in certain events and protecting the ‘protected class’ of female athletes in those events.” It is now set to go into effect on May 8, requiring all female athletes with higher levels of testosterone competing in events with lengths between the 400m and the mile, to suppress their endogenous hormonal levels through hormonal contraceptives.

This ruling is highly concerning, and several organizations have already spoken out against this ruling, from the UN Human Council to the World Medical Association. And for good reason. Between violating medical ethics, impinging on human rights, and failing to uphold scientific integrity, there is not much reason to support or even like this new policy. As Dr. Katrina Karkazis and Dr. Rebecca Jordan-Young point out in their New York Times op-ed, the IAAF has “already caused immense harm by reinforcing outdated and misguided ideas about testosterone,” particularly the idea that testosterone causes performative success. This is not true, and is outlined in the very study on which this policy is based. In several cases, female athletes with lower/the lowest levels of testosterone ran faster, jumped higher, and threw farther than female athletes with higher/the highest levels of testosterone. Madeleine Pape at the University of Wisconsin-Madison further reiterates this point: using testosterone as the end-all-be-all for sex segregation substantiates myths around this hormone and validates discrimination as a means of “protecting female athletes.”

The word “discrimination,” appears in the CAS executive summary. Specifically, in literally labeling this policy as “discriminatory,” they state:

The Panel unanimously concludes that the [Differences of Sex Development (DSD)] Regulations are prima facie discriminatory since they impose differential treatment based on protected characteristics. In particular, since the DSD Regulations establish restrictions that are targeted at a subset of the female/intersex athlete population, and do not impose any equivalent restrictions on male athletes, it follows that the Regulations are prima facie discriminatory on grounds of legal sex. Similarly, the DSD Regulations create restrictions that are targeted at a group of individuals who have certain immutable biological characteristics (namely a 46 XY DSD coupled with a material androgenising effect arising from that condition), and which do not apply to individuals who do not have those characteristics. It follows that the Regulations are also prima facie discriminatory on grounds of innate biological characteristics.

Hence, across the board, the three-person CAS panel (Dr. Annabelle Bennett, Australia; Honorable Hugh L. Fraser, Canada; and Dr. Hans Nater, Switzerland: all white judges) labeled the policy as discriminatory. Between the differential treatment of athletes with DSD, lack of imposed regulation on male athletes, and the naturally occurring nature of this testosterone level, the CAS unanimously deemed this policy as discrimination. However, a majority of the panel (two of the three) deemed this discrimination necessary on the premise of “fair play.”

Let’s be real now: “fair play” does not exist.

“Fair play” is impossible to achieve in sport. Cheryl Cooky and Shari Dworkin wrote on this very concept in 2013, explaining:

Sport studies scholars have noted the ways in which sport is not a level playing field; rather, it is a site wherein broader forms of social inequality are accepted, tolerated, and ignored. The historic and contemporary structure and culture of sport institutions often reproduces hegemonic masculinity, racism, classism, gender inequalities, and nationalism…In Western societies, sporting institutions have been organizationally structured to benefit the interests of dominant groups (i.e., White, male, economically affluent) (p. 107)

Considering the income and socioeconomic status disparity between athletes, access to resources, racism, sexism, homophobia, nationalism, colonialism, and transphobia, “fair” simply does not exist in the world of sport. To assume otherwise is to erase the lived experiences of athletes of color, trans athletes, gay athletes, working class athletes, and athletes from the global South, and to ignore the incredibly iniquitous history of sport. Additionally, when we consider the different framing of “genetic advantages” between male and female athletes, “fairness” becomes further obfuscated.

Caster Semenya’s existence and success in sport is at the epicenter of these systemic oppressions. Her black muscular body and identities as a black queer female athlete from the global South, disrupt the dominant female body (white, feminine, from the global North) that the IAAF attempts to privilege. The CAS’s decision is a disaster for sports law, decolonial and postcolonial scholars, feminists, critical race scholars, body theorists, and queer scholars alike, considering the power dynamics between the CAS decision and Semenya (three white judges from the global North deciding her fate), lack of scientific integrity behind the original 2017 study, and discriminatory nature of the policy. In a six-page document, the CAS decision reifies the myths and problematics fueling the IAAF policy that scholars from these fields have spent decades attempting to deconstruct. Moreover, the issues around this policy bridge the positivist and constructivist, quantitative and qualitative, objective and subjective, realms when considering the faulty science behind these regulations. Even the World Medical Association raised concerns, releasing a statement last week:

It is in general considered as unethical for physicians to prescribe treatment for excessive endogenous testosterone if the condition is not recognized as pathological. 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.

Requiring the use of hormonal contraceptives to reach an intended hormonal level, without regard for the side effects on an athlete (especially when those contraceptives have not thoroughly been tested) is a violation of medical ethics. Temporarily ignoring the socio-cultural implications of the IAAF policy, the regulations have the potential to inflict irreversible physical damage on the athletes affected by this policy. Re-factoring in the ethical and historical contexts of this policy, leaves little to support the IAAF’s policy and the CAS’s decision.

Thus, even a year later, we can conclusively state that this policy is, and continues to be, an abomination.

Thank you to Dr. Sam Clevenger and Brandon Wallace for their insightful feedback and edits on earlier drafts.