By a 2-1 margin, a panel of three arbitrators sided with the IAAF, allowing the sport’s international governing body to maintain its restrictions on athletes such as Semenya, a female competitor who is believed to have an intersex condition that causes her body to naturally produce testosterone at levels much higher than most women.
In issuing its decision, the court agreed that the IAAF rules are discriminatory in nature, “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,” the court said in its executive summary.
The controversial case had cast a spotlight on issues of women’s rights, fairness in sport and human rights, dividing many in the track and field world. At stake was whether the rule was fair to Semenya, one of the world’s most dominant middle-distance runners, and whether allowing Semenya to race with a demonstrative biological advantage was fair to her competitors.
“It is not possible to give effect to one set of rights without restricting the other set of rights,” the panel wrote.
Semenya, 28, has become a lightning rod of sorts on the track. She won gold in the 800 at the past two Olympics and is a three-time world champion but has faced scrutiny, suspicion and skeptical whispers since she won her first world title at age 18.
"I know that the IAAF’s regulations have always targeted me specifically,” Semenya said in a statement Wednesday. “For a decade the IAAF has tried to slow me down, but this has actually made me stronger. The decision of the CAS will not hold me back. I will once again rise above and continue to inspire young women and athletes in South Africa and around the world.”
She did not say whether she intended to comply with the IAAF rule to defend her world title later this year and potentially compete at the 2020 Olympics in Tokyo. Her lawyers said in a statement they will consider appealing the panel’s decision.
“Ms. Semenya believes that women like her should be respected and treated as any other athlete,” the statement read. “As is typically the case across sport, her unique genetic gift should be celebrated, not regulated.”
Semenya still can appeal to the Swiss Federal Tribunal within the next 30 days. If she chooses to compete in the world championships, which begin in September in Doha, Semenya must submit a valid sample with acceptable testosterone levels within the next week. While the IAAF rule applies to the 400-, 800-, and 1,500-meter events — Semenya’s primary races — the CAS judges say the IAAF should not yet apply the rules to the 1,500 “until more evidence is available.”
The much-anticipated decision drew a strong reaction from many corners with some celebrating balanced competition at the starting line and others condemning the ruling and saying Semenya’s rights have been violated.
“Forcing athletes to undergo medically unnecessary interventions in order to participate in the sport they dedicate their lives to is cruel and a violation of their human rights,” said Hudson Taylor, the executive director of Athlete Ally, a nonprofit LGBTQ athletic advocacy organization. “This fight is not over.”
The issue has never been a simple one around the track with many focused on the rights of Semenya’s competitors to a fair race. Paula Radcliffe, the British long distance runner, said: “I understand how hard a decision this was for CAS and respect them for ruling that women’s sport needs rules to protect it.”
Several other prominent athletes, including Billie Jean King and soccer star Abby Wambach, expressed their support for Semenya on Wednesday. Martina Navratilova called the CAS decision “dreadfully unfair to her and wrong in principle.”
“She has done nothing wrong, and it is awful that she will now have to take drugs to be able to compete,” the retired tennis star said. “General rules should not be made from exceptional cases and the question of transgender athletes remains unresolved.”
In issuing its ruling, the court acknowledged the matter “involves a complex collision of scientific, ethical and legal conundrums. It also involves incompatible, competing rights.”
“Natural human biology does not map perfectly onto legal status and gender identity,” the panel said in its executive summary. “The imperfect alignment between nature, law and identity is what gives rise to the conundrum at the heart of this case.”
For five days in February, the arbitrators heard from experts in ethics, genetics, gynecology and andrology, among other fields, trying to sort out the complex gender issues and IAAF’s rule proposal. Among those who met with the panel was Anthony Hackney, a professor of exercise physiology and nutrition at the University of North Carolina Chapel Hill, who spoke on Semenya’s behalf. In an interview Wednesday, Hackney said he and other experts argued “the association of testosterone to improved athletic performance is not a perfect linear relationship.”
“Our counter-argument was: You are making the assumption that this relationship is extremely strong and robust,” he said. “There is ample research to say that is not the case.’”
The ruling marks just the latest twist in a years-old tug-of-war between the IAAF and CAS. The court had previously suspended an IAAF rule in June 2015, eliminating any caps on acceptable testosterone levels but giving the IAAF an opportunity to further explore the issue.
The IAAF then commissioned a scientific study and last April announced the controversial new regulations. The governing body sought to require any athlete who has a difference of sexual development (DSD) to lower her testosterone levels to compete against women in the world’s biggest track and field events.
“The IAAF is grateful to the Court of Arbitration for Sport for its detailed and prompt response to the challenge made to its Eligibility Regulations for the Female Classification for athletes with differences of sex development,” the governing body said Wednesday in a statement, “and is pleased that the Regulations were found to be a necessary, reasonable
proportionate means of achieving the IAAF’s legitimate aim of preserving the integrity of female athletics in the Restricted Events.”
The IAAF contended that it had compiled data showing testosterone “either naturally produced or artificially inserted into the body, provides significant performance advantages in female athletes.” The organization said heightened testosterone levels could improve performance by 5 percent or more.
Athletes impacted by the rule must lower their testosterone levels to below 5 nmol/L and maintain that reduced level continuously for at least six months before a competition.
Semenya had long been the public face of the issue and the subject of much media speculation. She’s a three-time world champion in the 800 and took gold at both the 2012 London Olympics and the Rio Games four years later, facing questions at nearly every stop. Last June, racing in Paris, Semenya posted her best 800 time — a blistering 1:54.25 mark that was the fastest any woman had run in nearly a decade and stands fourth on the all-time list.
Along with her national federation, Semenya challenged the rule last June, which many in track circles took as confirmation that she has an intersex condition that causes her body to produce high levels of testosterone.
Semenya has said little publicly about her condition but in protesting the matter to CAS, she issued a statement, saying, “I am very upset that I have been pushed into the public spotlight again. I don’t like talking about this new rule. I just want to run naturally, the way I was born.
Her legal team characterized the rule as “discriminatory, irrational, unjustifiable,” and Semenya challenged the IAAF on multiple grounds, saying the organization’s rules “continue the offensive practice of intrusive surveillance and judging of women’s bodies which has historically haunted women’s sports.”
The panel’s full 165-page decision was not released Wednesday, but a six-page executive summary was made available. In issuing its ruling, the panel of arbitrators, who were not made available for comment, did note some concerns with the application of the IAAF’s rule, including medical side effects of hormone treatment and the potential that athletes simply are unable to remain in compliance.
The panel expressed appreciation in its summary for Semenya’s “grace and fortitude throughout this process,” stressing that the runner has done nothing wrong.
“This is not a case about cheating or wrongdoing of any sort,” they wrote. “Ms. Semenya is not accused of breaching any rule. Her participation and success in elite female athletics is entirely beyond reproach, and she has done nothing whatsoever to warrant any personal criticism.”
Barry Svrluga contributed to this report.