'Serious problems with the policy': U of T's Bruce Kidd on the ruling against Caster Semenya

Caster Semenya, the South African 800-metre Olympic and world champion, recently lost her landmark legal case against the International Association of Athletics Federations (IAAF), a global regulatory body.

The ruling by the Court of Administration for Sport (CAS) means Semenya will have to take medication to reduce her testosterone if she wants to run internationally at events between 400 metres and one mile.

The University of Toronto’s Jelena Damjanovic spoke to Professor Bruce Kidd from the Faculty of Kinesiology & Physical Education about the highly contentious case. In 2015, Kidd helped initiate Indian sprinter Dutee Chand’s successful appeal, at CAS, of the IAAF’s previous attempt to legislate natural testosterone in female athletes.

As a result of that ruling, both Chand and Semanya competed in the Rio Olympic Games without restriction.

What was your response to Caster Semenya losing her case against the IAAF? Were you surprised?

I was devastated, and completely surprised. From my point of view, the IAAF policy mistakes the science, flies in the face of best practice in policy-making, overrides human rights and will cause tremendous anxiety and even harm among the female athletes in the world, particularly those in the Global South. Even the CAS decision cautions that there are serious problems with the policy, including the potential for harm it will cause among women it targets.

What is the counter-argument to IAAF’s position that high testosterone in female athletes gives them an unfair advantage when competing in women’s sport?

There are two main counter-arguments. The first speaks to the values of sports. High natural testosterone occurs as the result of a genetic mutation, and, in that way, it’s no different than the hundreds of other genetic mutations, such as exceptional height, reach and ability to draw oxygen into the bloodstream that advantage other top athletes. Moreover, the most consistent factor determining performance is personal and national income because of the advantages they can buy such as better training facilities, the best food, top coaches, medical assistance, and so on. No effort is made to balance out these other factors. Except for performance-enhancing drugs, the culture applauds athletic excellence regardless of determinations. So why single out this one factor? CAS went out of its way to emphasize that Caster was not cheating, and that she should be admired for her athleticism and courage.

The second is practical. Natural testosterone is not a reliable measure; it does not play out in the predictable, mechanical way that the IAAF assumes – its effects can vary tremendously, even in the same individual, in response to other factors. As CAS cautioned, it will be very hard – if not impossible – for IAAF to monitor natural testosterone without a highly invasive regime that will trample athletes’ rights.

How will the CAS ruling affect transgender athletes preparing to compete at the 2020 Olympics in Tokyo?

It’s expected that the IOC will use the CAS ruling to establish testosterone levels for athletes transitioning from male to female at the level set by the IAAF for Caster, i.e. five nanomoles. The Canadian Centre for Ethics in Sport recommends that there should be no such requirement.

What happens next?

That, too, is an open question. Caster and her legal team have 30 days to decide to appeal to the Federal Supreme Court of Switzerland, but since appeals are limited to procedural matters, the chances of success are slim.

CAS said that the evidence for applying the policy to the 1,500 [metre] and one mile is weak, so Caster might enter one of those races and, if barred, launch another appeal. She may simply step up to the 5,000, which some top middle-distance runners have done in the past, and circumvent the policy altogether.

Certainly, the application of the policy will be closely monitored by the athletes and human rights groups who have fought against this policy. If, as has happened frequently in the past, abuses occur, they can launch another challenge at CAS. As CAS itself suggested, the issues are far from over.