INSIGHT: Discrimination in Athletics—Eligibility of Intersex Runner a Prime Example

On May 1, the Court of Arbitration for Sport, headquartered in Lausanne, Switzerland, announced a decision banning middle-distance intersex runners, (i.e., those with both male and female characteristics) from international competition unless they take hormones to lessen their testosterone levels. The discriminatory decision raises more questions than it answers.

Perhaps some of those questions will be answered by the as yet unpublished 165-page decision. That is doubtful, however, because of a contrary 161-page decision in a case about another intersex runner issued by the CAS less than four years ago.

That case involved a 100-meter sprinter from India named Dutee Chand. She challenged the “Hyperandrogenism Regulations,” which banned her from competing, issued by the International Association of Athletic Federations, which governs track and field events.

The CAS issued an interim decision in 2015 invalidating those regulations, but gave the IAAF two years to come up with more evidence supporting the regulations. The IAAF was not able to come up with such evidence that would apply to the 100 meters event, and Chand has been allowed to compete internationally.

In particular, the CAS 2015 decision stated that “while the evidence indicates that higher levels of naturally occurring testosterone may increase athletic performance, the Panel is not satisfied that the degree of that advantage is more significant than the advantage derived from the numerous other variables which the parties acknowledge also affect female athletic performance: for example, nutrition, access to specialist training facilities, and coaching, and other genetic and biological variations.”

2018 Regulations Apply Only in Middle Distance Races

The IAAF then issued new regulations in 2018, “The IAAF Regulations for Female Classification (Athletes with Differences of Sex Development).” These regulations, which prohibited intersex athletes with naturally high testosterone levels from competing internationally unless they took hormones to decrease their testosterone levels, did not apply to all female athletes. They applied only to middle-distance events, from 400 to 1500 meters, which affected the current female Olympic gold medalist in the 800 meter event, Caster Semenya.

Semenya has been classified female from birth and was brought up as a female. She is from South Africa, which legally considers her female. She also competes in the 1500 meter race, but she is ranked only 22d in the world in that event by the IAAF.

Like Chand before her, Semenya challenged the new IAAF regulations at CAS. The May 1 CAS press release stated that the CAS Panel, by a 2-1 vote, “found that the [IAAF] DSD Regulations are discriminatory,” but that “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 [middle distance] events.”

Nowhere is it explained why only middle distance events are affected, but not other track and field events, particularly events that require strength, like the shot put. One would think that if naturally produced testosterone were a difference-maker, then intersex athletes with more than the average amount of testosterone appearing in females should be banned from all events, including the 100 meters, in which Chand is now allowed to compete.

Indeed, there is no explanation why naturally produced testosterone makes Semenya first in the world in the 800 meters but only 22d in the 1500 meters.

Sexual Stereotyping in Play

In my opinion, there will never be a scientific explanation of these phenomena because the real reason behind the new IAAF regulations is sexual stereotyping. Semenya, who has legally been a woman since birth and who has done nothing artificial to change that, simply does not fit the stereotype of a woman held by the IAAF.

Some women are taller or heavier than others, some have a faster metabolism, some have more testosterone and so on for all the traits that contribute to athletic performance. Indeed, most world-class athletes have some natural-born trait that sets them apart, which is an important reason why they are world-class athletes. There is simply no reason to single out one of these traits—naturally produced testosterone—and to discriminate against those with that trait through no action or choice of their own.

I look forward to reading the full 165-page decision. Like other justifications for discrimination, I am certain that it will not bear scrutiny in the light of day.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

Author Information

Ronald S. Katz, a co-author of the book Sport, Ethics and Leadership, was an expert witness for Caster Semenya in the proceedings referenced above. He is Of Counsel with GCA Law Partners LLP, Mountain View, Calif.