Caster Semenya testosterone ruling: Common sense prevails, but we must have sympathy

At first glance, “necessary discrimination” seems such an ugly, oxymoronic term. How can discrimination – which by its most common definition carries connotations of injustice and prejudice – ever be necessary or justified?

It was that term, “necessary discrimination,” which was referred to on Wednesday by the Court of Arbitration for Sport (CAS) in dismissing the challenge from South African runner Caster Semenya against the International Association of Athletics Federations’ (IAAF) rules that limit natural testosterone for female athletes. 

READ MORE: Caster Semenya loses CAS appeal against IAAF in pivotal testosterone case

Double Olympic 800m champion Semenya, 28, had launched her appeal in a bid to prevent rules that would demand that she and other female athletes with DSD (differences of sexual development), many of whom are born with internal testes, take pills to reduce testosterone levels to below 5 nanomoles per liter of blood, should they wish to compete in women's events at distances from 400m up to a mile.

The rules, which would require DSD athletes to take medication for six months before competing, had initially been due to come into force in April 2018, to be implemented in November that year, but were delayed after Semenya’s challenge.

In its statement on Wednesday, CAS said “the [IAAF’s] DSD regulations are discriminatory, but the majority of the panel found that, on the basis of the evidence submitted by the parties, 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."

That, in essence, is the argument: preserving the integrity of female athletics in the designated events through “necessary discrimination.” 

The principle – and the one defended by the IAAF – was that the large majority of female athletes needed to be protected against a minority of DSD athletes who enjoyed a potentially decisive advantage.

We are perhaps oversimplifying what is a complex case, and which raises issues on how sport treats athletes with non-binary definitions of what many traditionally perceive as ‘male and female’.

It will also no doubt throw up questions such as where exactly limits on testosterone levels should be imposed, or whether other physical traits should be restricted, or even applied to male sports.

But in the end, a line, even if such a blurred one, does have to be drawn – which is what the IAAF is doing.  

© Reuters / Athit Perawongmetha

By its very nature, this was a case in which there could never really be any winners. Someone was always going to end up being victimized.

Semenya, let’s remember, has not cheated in any way. She has not taken performance-enhancing drugs, she has not artificially boosted her testosterone levels.

To reach the pinnacle of her sport – winning Olympic gold medals in 20102 and 2016, as well as three world titles – she has trained as hard as any other athlete.

She clearly has an abundance of natural talent, but is now forced to make a cruel choice: take measures to alter her testosterone levels, switch distances to the ones not covered by the ruling, or compete with the men.    

It is not known what will happen to her performance levels should she comply with the rules, but it seems clear that whichever way she turns, she stands to lose significant sums in prize money.

© Reuters / Siphiwe Sibeko

Semenya and Athletics South Africa (ASA) rightly feel aggrieved at the situation.

In a statement, the latter said it was “deeply disappointed and profoundly shocked,” and could pursue action against the ruling – as could Semenya.

"[That] CAS does not only condone discrimination but also goes to lengths to justify it, only undermines the integrity that this body is entrusted with,” the ASA added.

The South African government has also expressed its disappointment at the outcome. 

But CAS was presented with a “lesser of two evils” scenario: back Semenya and potentially discriminate against thousands of female athletes, or back the IAAF and discriminate against a much smaller number of DSD competitors.

“Discrimination” is an ugly word in one sense, but can also mean recognizing and understanding differences; if there are degrees of it, then surely it is better to take the least damaging of those?

Semenya herself responded on Wednesday by tweeting a “shrugging shoulders” emoji along with the message: “Sometimes it's better to react with no reaction.”  

The South African has frequently contended that this case is primarily targeted at her – and how could it not be, as the most high-profile example of a DSD athlete affected by the ruling?

Let’s not forget that she has had to contend with a decade of swipes, sniggers and outright hostility since bursting onto the scene and winning the 800m world title in Berlin in 2009 when she was just 18.

© AFP / John MacDougall

After that race, Italian runner Elisa Cusma Piccione, who finished sixth, said: “For me, she is a man.”

Those are the kind of comments that Semenya has had to bear for the past 10 years, but none the less she has largely done so with grace and humility.

She also has strong support from numerous specialists who question the validity of the evidence that the IAAF has based its case on.

The World Medical Association (WMA) are among those to state that the rules are unethical, while the United Nations has also vocally backed Semenya.

In issuing its ruling on Wednesday, the Switzerland-based CAS even stated there was a “paucity of evidence” to apply the new rules to 1,500m and 1-mile races – although the IAAF looks set to ignore those concerns.

Ultimately, though, Semenya is left with a difficult choice to make on where she goes from here, and on Thursday prompted speculation with a cryptic social media reading: "Knowing when to walk away is wisdom. Being able to is courage. Walking away with your head held high is dignity."

It is gut-wrenching that anyone should have to consider walking away from an area of sport through no fault of their own, and Semenya deserves our sympathy and respect.

Likewise, some of the scare-mongering and arguments that ruling in Semenya's favor could open the door to thousands of abuses of the system are ludicrous. 

We are talking about a small number of athletes who are likely to be affected. 

But that, in essence, is the case: “necessary discrimination” to protect the many really does make more sense than compromising the integrity of sport to protect the few.     

By Liam Tyler