Bloomberg Law
June 5, 2019, 8:01 AM

INSIGHT: Would Ban on Intersex Runners Hold Up in U.S. Courts?

Ronald S. Katz
Ronald S. Katz
GCA Law Partners LLP

This past April 30, the Court of Arbitration for Sport, a private arbitration body, issued a ruling supporting regulations of the international association governing track-and-field that banned runners in middle-distance events with naturally-elevated testosterone levels from competing in middle-distance races from 400 meters to one mile.

In particular, this ruling affected the current Olympic gold medalist in the women’s 800-meter race, South African intersex runner, Caster Semenya.

On June 3, however, it was announced that the Swiss Federal Supreme Court has provisionally suspended these regulations of the International Association of Athletics Federations, giving the IAAF until June 25 to respond to the court’s provisional ruling.

What will happen after that filing is unknown, but, if U.S. law and public policy on sex discrimination is a guide, Caster Semenya has an excellent chance of prevailing. Because regulations like those of the IAAF, and its affiliate, USA Track and Field, would be deemed arbitrary and discriminatory by long-standing, well recognized bodies of U.S. law, they could not withstand a legal challenge in the U.S. (See related article analyzing the CAS decision)

This is not an academic exercise, because the IAAF stages important track meets in the U.S. For example, on June 30, Caster Semenya is scheduled to compete at the Prefontaine Classic at Stanford University.

All the Greats Have an Advantage

Why one trait that can enhance athletic performance—testosterone—was singled out is not at all clear from what the CAS has released to date. Virtually all elite athletes have some genetic advantage; in that sense, there is truly no level playing field.

Furthermore, it is not at all clear what is the appropriate level of testosterone for a female. There is no generally accepted standard for this.

Purported Science Not Admissible in U.S. Court

U.S. courts have strict standards regarding evidence submitted by experts, including whether the evidence can be tested, whether it has been subject to peer review, and whether it is generally accepted. The expert scientific evidence submitted by the IAAF to CAS has not been made public, but the IAAF has touted two published articles to support its position. These articles meet none of the legal criteria for the admissibility of evidence cited above.

First, both articles are co-authored by an IAAF employee, who cannot make any claim to objectivity. Second, a significant percentage (17% to 33%) of the data on which the first article was based has been challenged by reputable scientists, and the IAAF has acknowledged the correctness of the challenge.

The second article co-authored by the IAAF employee claims, however, the remaining data is sufficient to support its conclusions, a claim discounted by one of the challenging scientists, a professor at the University of Colorado: “I think everyone can understand that if your data set is contaminated by as much as one-third bad data, it’s kind of a garbage-in, garbage-out situation.”

The first article claims, as one would expect in a scholarly publication, to be “externally peer reviewed.” Interestingly, however, the second article states only that it was “internally peer reviewed,” a contradiction in terms.

Third, the articles themselves acknowledge that they contain no cause and effect analysis: “Our study design cannot provide evidence for causality between androgen levels and athletic performance.” Nor could it, because of ethical and legal problems preventing experimentation on humans with a controlled substance like testosterone for purposes related to athletic performance.

Finally, as is obvious from the above, there is no consensus on the conclusions of the articles. Indeed, since the CAS decision, the World Medical Association has stated that physicians should not honor the IAAF regulations because “Medical treatment for the sole purpose of altering the performance in sport is not permissible.”

Arbitrary and Capricious

Even if the IAAF’s evidence was admissible, the association’s regulations are arbitrary and capricious because they run afoul of U.S. anti-discrimination law.

U.S. law prohibits sexual stereotyping. The leading case on this subject came from the U.S. Supreme Court, and it involved a female accountant who was not promoted at a major accounting firm because, in the opinion of the firm’s partners, she was not sufficiently feminine. The Supreme Court resoundingly vindicated the female accountant’s claim of sex discrimination.

Just as the accounting firm acted illegally by stereotyping how feminine a female could be according to the accounting firm stereotype, the IAAF has violated U.S. law by mandating an amount of naturally-produced testosterone that a woman should have according to the IAAF stereotype.

The IAAF has no generally accepted basis for its position, because there is no standard anywhere authoritatively stating how much naturally-produced testosterone a woman must have in order to be a woman. Just as some women are taller or heavier than others, some have more testosterone, but that does not change the fact that they, like Semenya, are legally recognized as women.

Indeed, men have varying levels of testosterone, some having four times as much as others. No one has suggested, however, that men with high testosterone should not be permitted to compete against men with average or low testosterone levels because such competition is not fair.

Indeed, the fact that such analysis is not applied to males by the IAAF, but it is applied to females, is another reason that it would be discriminatory under U.S. law.

Another Supreme Court case supports this point. In that 1991 case a company prohibited females of child-bearing age from certain jobs involving lead exposure but did not similarly prohibit males. Again, the Supreme Court resoundingly struck down that discriminatory policy, stating that the company’s “policy is not neutral, because it does not apply to the reproductive capacity of the company’s male employees in the same way as it applies to that of the females.”

Furthermore, the IAAF regulations discriminate against women with high levels of naturally produced testosterone in favor of women with low levels of such testosterone. This discrimination violates the 14th Amendment of the U.S. Constitution, which mandates the basic “equal protection of the law” principle that like cases should be treated alike. If the IAAF pled in a U.S. court that the two types of women are not “like,” the IAAF would not be able to prove that because, as noted above, of the inadmissible nature of the IAAF’s evidence.

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.