Olympic gold medalist runner Caster Semenya must lower her testosterone levels if she wants to defend her 800 meter title in Tokyo next year, a Swiss court <a rel="noreferrer noopener" href="https://apnews.com/bd69bc7ea983d9a1959813402d3d3472" target="_blank">ruled</a> Tuesday, bringing an end to Semenya’s long legal battle against her sport’s governing body that brought controversy and heated debate to the role hormones play in athletic performance.



<h4 class="wp-block-heading">KEY FACTS</h4>



Semenya, who hails from South Africa, identifies as female and was judged to be female at birth, but has naturally higher levels of testosterone and XY chromosomes due to being born with a sex development disorder.



Tuesday’s&nbsp;<a href="https://apnews.com/bd69bc7ea983d9a1959813402d3d3472" target="_blank" rel="noreferrer noopener">ruling</a>&nbsp;by Switzerland’s supreme court dismissed Semenya’s appeal of a 2019&nbsp;<a href="https://www.nytimes.com/2019/05/01/sports/caster-semenya-loses.html" target="_blank" rel="noreferrer noopener">decision</a>&nbsp;that ordered her—and athletes with similar hormonal conditions—to suppress testosterone levels in order to compete.



Testosterone levels can be lowered either through medication or surgery, according to the&nbsp;<a href="https://apnews.com/bd69bc7ea983d9a1959813402d3d3472" target="_blank" rel="noreferrer noopener">Associated Press</a>.



The International Association for Athletics Federation, the governing body for running,&nbsp;<a href="https://www.nytimes.com/2019/05/01/sports/caster-semenya-loses.html" target="_blank" rel="noreferrer noopener">maintains</a>&nbsp;that athletes with “differences of sexual development,” and more specifically female athletes with higher levels of testosterone, have an advantage in some events due to additional muscle mass, more strength and the ability to take in more oxygen. &nbsp;



“I am very disappointed by this ruling, but refuse to let World Athletics drug me or stop me from being who I am,” Semenya said in a&nbsp;<a href="https://www.nortonrosefulbright.com/en-za/news/8ee6fb77/caster-semenya-remains-determined-to-fight-for-human-rights" target="_blank" rel="noreferrer noopener">statement</a>, adding, “I will continue to fight for the human rights of female athletes, both on the track and off the track, until we can all run free the way we were born.”



In its ruling, Switzerland’s supreme court said the country’s Court of Arbitration for Sport was allowed to “uphold the conditions of participation issued for female athletes” with differences in sexual development “in order to guarantee fair competition for certain running disciplines in female athletics.”



<blockquote class="wp-block-quote has-text-align-center is-layout-flow wp-block-quote-is-layout-flow">“This decision is a call to action–as a society, we cannot allow a sports federation to override the most fundamental of human rights,” <cite>said lawyer Dorothee Schramm, who led Semenya’s appeal, in a <a rel="noreferrer noopener" href="https://www.nortonrosefulbright.com/en-za/news/8ee6fb77/caster-semenya-remains-determined-to-fight-for-human-rights" target="_blank">statement</a>.</cite></blockquote>



<h4 class="wp-block-heading">CHIEF CRITIC</h4>



Athletics South Africa, the country’s governing body for running that backs Semenya. The group&nbsp;<a href="https://www.nbcnews.com/news/sports/caster-semenya-can-t-compete-her-best-olympics-events-without-n1000531" target="_blank" rel="noreferrer noopener">previously called</a>&nbsp;the IAAF’s testosterone policy “discriminatory, unnecessary, unreliable and disproportionate.”



<h4 class="wp-block-heading">KEY BACKGROUND</h4>



Semenya’s biology has been the subject of controversy since she burst onto the international running scene in 2009. Her victories at the time raised questions about her sex, leading the IAAF to&nbsp;<a href="https://www.theguardian.com/sport/2009/aug/23/caster-semenya-athletics-gender" target="_blank" rel="noreferrer noopener">perform</a>&nbsp;a sex verification test on her. She was also forced to take medication to reduce her testosterone in order to continue competing. In 2011, the IAAF announced new rules that would tighten the upper limits of testosterone levels in female athletes. The rule was dropped in 2015 when Indian sprinter Dutee Chand&nbsp;<a href="https://www.nytimes.com/2015/07/28/sports/international/dutee-chand-female-sprinter-with-high-male-hormone-level-wins-right-to-compete.html" target="_blank" rel="noreferrer noopener">convinced</a>&nbsp;Switzerland’s Court of Arbitration for Sport that there wasn’t enough evidence to prove that elevated testosterone levels increased athletic performance. Then, in 2018, the IAAF&nbsp;<a href="https://www.theguardian.com/sport/2018/apr/25/iaaf-testosterone-rules-caster-semenya" target="_blank" rel="noreferrer noopener">announced</a>&nbsp;the policy upheld in Tuesday’s court decision, which applies to runners in three events, and narrow enough for critics to say it was designed to target Semenya.&nbsp;



<h4 class="wp-block-heading">TANGENT</h4>



Transgender athletes have been keeping tabs on Semenya’s case.&nbsp;<a href="https://www.wired.com/story/the-glorious-victories-of-trans-athletes-are-shaking-up-sports/" target="_blank" rel="noreferrer noopener">Similar arguments</a>&nbsp;are made about transgender athletes having an advantage over biological women. Different governing organizations have different policies, as well. The NCAA, for example, allows transgender women to compete on women’s teams after completing a year of hormone suppression treatment. But for the Women’s Flat Track Derby Association, which oversees&nbsp;<a href="https://resources.wftda.org/womens-flat-track-derby-association-statement-about-gender/" target="_blank" rel="noreferrer noopener">roller derby</a>, “an individual who identifies as a trans woman, intersex woman, and/or gender expansive” can compete on women’s teams.



<h4 class="wp-block-heading">FURTHER READING</h4>



<a href="https://www.nytimes.com/2019/05/01/sports/caster-semenya-loses.html" target="_blank" rel="noreferrer noopener">Caster Semenya Loses Case to Compete as a Woman in All Races</a>&nbsp;(New York Times)



<a rel="noreferrer noopener" href="https://apnews.com/bd69bc7ea983d9a1959813402d3d3472" target="_blank">Semenya loses at Swiss supreme court over testosterone rules</a> (Associated Press)



-Lisette Voytko, Forbes Staff

Athletics – Commonwealth Games Day 9

Caster Semenya Can’t Defend Olympic Title Unless She Lowers Testosterone, Court Rules

Early last year the&nbsp;<a href="https://www.iaaf.org/home" target="_blank" rel="noreferrer noopener" aria-label=" (opens in a new tab)">International Association of Athletics Federations</a>(IAAF) introduced regulations requiring South African 800m Olympic champion&nbsp;<a rel="noreferrer noopener" aria-label=" (opens in a new tab)" href="https://www.theguardian.com/sport/caster-semenya" target="_blank">Caster Semenya</a>&nbsp;– and other middle distance runners with differences of sex development – to lower their naturally high levels of testosterone.



In February 2019 Semenya’s legal team argued that the policy was invalid. But in May the&nbsp;<a href="https://www.tas-cas.org/en/index.html" target="_blank" rel="noreferrer noopener" aria-label=" (opens in a new tab)">Court of Arbitration for Sport</a>&nbsp;<a href="https://www.theguardian.com/sport/2019/may/01/caster-semenya-loses-landmark-legal-case-iaaf-athletics">ruled</a>&nbsp;that discrimination in sport is legal provided it is justified.



The way in which the IAAF has gone about dealing with Semenya raises serious legal and ethical concerns. And Semenya isn’t the only athlete involved. This is an issue that goes beyond just the difference of sex development. It goes to the fundamental root of human dignity, of privacy of every athlete who participates at the World Championships.



There are ethical concerns about the way in which the research was conducted that led to the decision. The legal concerns revolve around serious fundamental rights concerns, in particular in the way a number of female athletes have been treated.



In a&nbsp;<a href="https://www.sportsandtaxation.com/2017/01/you-can-play-as-long-as-you-dont-win-legal-perspectives-on-the-regulations-pertaining-to-the-participation-of-women-with-hyperandrogenism-in-womens-athletics/">paper</a>&nbsp;I wrote two years ago – “You can play as long as you don’t win: Legal perspectives on the regulations pertaining to the participation of women with hyperandrogenism in women’s athletics” – I explored the big ethical and legal problems I believe are involved in Semenya’s case, as well as those of dozens of other women.



My view is that some women are being singled out because they are different. If Semenya looked different, if she was a blonde bombshell or if she didn’t win, we wouldn’t be having this debate today.



My big concern is that if this ruling by the Court for Arbitration in Sport remains unchallenged, this way of thinking and behaving might filter into the&nbsp;<a href="https://www.olympic.org/the-ioc" target="_blank" rel="noreferrer noopener" aria-label=" (opens in a new tab)">International Olympic Committee</a>, the overarching body that regulates sport. That, in turn, will affect all its affiliations. These include the national Olympic committees and international federations like the IAAF and Fifa and the national associations under them.



That’s fundamentally wrong.



<h2 class="wp-block-heading">The ethics question</h2>



The first problem lies in the way in which the&nbsp;<a href="https://www.wada-ama.org/" target="_blank" rel="noreferrer noopener" aria-label=" (opens in a new tab)">World Anti-Doping Authority</a>&nbsp;has behaved. The World Anti-Doping Authority and national anti-doping authorities – which operate parallel to the other sporting bodies – are supposed to be independent. The World Anti-Doping Authority should be a completely separate, independent body that checks on the sports federations to ensure they enforce anti-doping measures uniformly and in a correct manner.



In reality, this isn’t the case.



This is how it works. At an event like the World Athletic Championships, it will be responsible for conducting the anti-doping tests. It will set up its own anti-doping control stations; collect the samples.



As part of the process athletes who enter agreements to participate in World Athletic Championships will also give consent to the World Anti-Doping Authority to conduct these tests. Part of that consent is also that the agency will, in terms of the rules, keep these samples for up to 10 years. They can re-test later for substances but they can also conduct research on anti-doping matters.



That’s important.



What happened in practice was that in 2011 and 2013 the IAAF instructed athletes to give both urine and blood samples. The reason given was that they were developing what is called a biological passport. This is an athlete’s biological profile that’s developed over a period of time. A sudden anomaly could indicate that there’s a doping or some other issue.



The problem is that IAAF passed these samples onto its medical team, the medical commission, which conducted its own research to determine the hormone levels of the athletes.



The argument being forwarded by the IAAF is that this is about doping. But the World Anti-Doping Agency ruled that the regulations on hyper-androgenism or difference of sex development have nothing to do with anti-doping.



This raises the question: if biological samples that have been collected for one purpose by one entity are passed onto another entity to do research for which consent has not been given, is this a lawful use of that sample?



The basis of modern ethical biological research and medical treatment is the&nbsp;<a href="https://www.wma.net/policies-post/wma-declaration-of-helsinki-ethical-principles-for-medical-research-involving-human-subjects/" target="_blank" rel="noreferrer noopener" aria-label=" (opens in a new tab)">Declaration of Helsinki</a>. Though not an internationally legally binding document, it’s nevertheless set the standard for a lot of countries, including South Africa, that have developed their own biomedical laws.



In South Korea – where the tests took place – the Helsinki Declaration led to the adoption of the Bioethics and Safety Act. This states that to conduct any form of biomedical research you need the informed consent of the individuals. But none of the athletes – and I have spoken to a number who have participated at these championships – have been informed these samples could be used on hormone research.



Lots of countries have similar rules. For example Monaco, where the IAAF is based, has a strong requirement that there must be proper, informed consent.



One thing all of these laws have in common is that the consent can be withdrawn at any stage and there should be no penalty for that. And it’s a criminal offence if one does not obtain the proper, informed consent.



This issue has been raised repeatedly with the IAAF throughout the process. But to no avail.



I’m still to see that there is a single form or indication that any athlete has been properly informed of the nature of the research conducted, who will conduct the research, what the possible consequences are, what it means for the athlete and how their identity is being protected in the process.



The IAAF has not been able to produce any of this. And the Court of Arbitration for Sport dismissed these arguments and considered all the evidence that had been collected in spite of the lack of informed consent.



<h4 class="wp-block-heading">Human rights</h4>



The second major issue relates to massive human rights concerns.



The rights I’m referring to are set out in the&nbsp;<a href="https://www.echr.coe.int/Documents/Convention_ENG.pdf" target="_blank" rel="noreferrer noopener" aria-label=" (opens in a new tab)">European Convention on Human Rights</a>, in particular Articles 2 and 8.



Let me begin with Article 8 which I believe should have been applied and was in fact raised before the court. It provides that everyone has the right to respect for private and family life. In the case of&nbsp;<a href="https://swarb.co.uk/solomakhin-v-ukraine-echr-15-mar-2012/" target="_blank" rel="noreferrer noopener" aria-label=" (opens in a new tab)">Solomakhin v Ukraine</a>, for example, the European Court of Human Rights ruled that any compulsory medical intervention, even if it was of a minor importance, constituted an interference with this right.



Effectively coercing a healthy athlete into taking hormone treatment is certainly a compulsory medical intervention. They can argue that she has the choice. But there is no choice.



For its part, Article 2 of the European Convention on Human Rights and Biomedicine provides that the interest of welfare of each human being takes precedence over the interest of society.



Even the IAAF’s&nbsp;<a href="https://www.iaaf.org/about-iaaf/documents/constitution">constitution</a>, in article 3, gives a commitment to human rights with ethical values, while the Olympic Charter is against any form of discrimination and is for the promotion of women, equality of men and women, sport for all.



These have all been laid bare as empty promises.



-Steve Cornelius; Professor of Private Law, University of Pretoria



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caster1

Caster Semenya: The Legal And Ethical Issues That Should Concern Us All

Caster Semenya has released a list of experts she will call in her appeal hearing at the Court of Arbitration for Sport (CAS) this week in her fight against regulations aimed at lowering the testosterone levels of hyperandrogenic athletes like her. 



The South African 800-metres double Olympic champion on Monday expressed her disappointment after the International Association of Athletics Federations (IAAF) revealed the names of their five witnesses for the proceedings in Lausserne.



She called it a breach of confidentiality rules ahead of a five-day appeal that could have far reaching consequences for sport. The IAAF deny any wrong-doing.



She will call on a range of experts from various fields, and used the announcement of their names, through her lawyers, to reiterate her stance on the IAAF’s proposed regulations.



READ MORE | <a rel="noreferrer noopener" aria-label="‘From Zero to Hero’: The Queen Of The 800 meters Caster Semenya (opens in a new tab)" href="https://www.forbesafrica.com/woman/2018/12/27/from-zero-to-hero-the-queen-of-the-800-meters-caster-semenya/" target="_blank">‘From Zero to Hero’: The Queen Of The 800 meters Caster Semenya</a>



“The IAAF regulations do not empower anyone,” the statement said. “Rather, they represent yet another flawed and hurtful attempt to police the sex of female athletes.



“Ms Semenya’s courage and perseverance in her fight to run free is an inspiration to young athletes in her home country of South Africa and around the globe.”



The IAAF regulations stipulate that women with elevated testosterone take medication to reduce their level before being allowed to compete, but only in the middle-distance events of between 400- and 1500-metres where it is claimed the advantage is most felt.



IAAF President Sebastian Coe told reporters on Monday that the regulations are aimed at leveling the field between hyperandrogenic athletes and those with normal levels of testosterone.



The IAAF’s previous attempts to regulate testosterone in female athletes fell foul of a CAS ruling in 2015 following an appeal on behalf of Indian Dutee Chand, who had been banned from competing because of her high levels.



CAS claimed in their judgment that the IAAF had not provided sufficient evidence that hyperandrogenic athletes gained a significant advantage due to their testosterone count.



A verdict could take up to a month, according to CAS.



The experts who will testify in support of Semenya are listed as:



<ul><li>Prof Veronica Gomez-Lobo, Obstetrics and Gynecology at Georgetown University and the Director of the DSD (Differences of Sexual Development) Clinic at the Children’s National Health System in Washington‚ DC.</li><li>Dr Alun Williams, Director of the Sports Genomics Laboratory at Manchester Metropolitan University.</li><li>Professor Eric Vilain, specialist in gender-based and endocrine genetics‚ including DSD, who has consulted to the International Olympic Committee (IOC).</li><li>Professor Roger Pielke Jr, director of the Sports Governance Center at the University of Colorado.</li><li>Professor Dankmar Böhning, Chair in Medical Statistics at the University of Southampton.</li><li>Professor Richard Holt, expert in Diabetes and Endocrinology at the University of Southampton.</li><li>Professor Anthony C Hackney, University of North Carolina‚ with joint appointments in the Department of Exercise and Sport Science and the Department of Nutrition School of Public Health.</li></ul>



Emotional scenes as Vonn, Djokovic and Biles win Laureus Awards



<ul><li>Dr Lih-Mei Liao, clinical and health psychologist in the United Kingdom who has worked extensively with women diagnosed with a range of DSD conditions.</li><li>Dr Payoshni Mitra, teaches Sport Sociology at Birkbeck College‚ University of London and works closely with athletes with hyperandrogenism and DSD from the Southern Hemisphere.</li><li>Ashley LaBrie‚ Executive Director of AthletesCAN‚ an independent organization that represents the interests of all national team athletes in Canada. &#8211;Reuters</li></ul>



-Nick Said

Tag: IAAF

FORBES AFRICA SOCIAL MEDIA

Caster Semenya Can’t Defend Olympic Title Unless She Lowers Testosterone, Court Rules

Caster Semenya: The Legal And Ethical Issues That Should Concern Us All

Caster Semenya Releases List Of Experts For Battle With IAAF At CAS