Featured in the provocative ‘Women are Crazy’ advertisement recently released by the sports brand Nike, Caster Semenya has instigated a global campaign for equal rights for all people in sport. Semenya is a middle distance runner from South Africa who presents intersex characteristics. In February of this year, she took a case against the International Association of Athletics Federations (IAAF) to allow her race in a female category without having to take drugs to limit her naturally high testosterone levels. As a result of the case brought by Semenya, the debate has extended as to include all genders, biology, and identity; what should define who can race in which category?

Born in South Africa in 1991, Semenya won gold at both the 2012 Summer Olympics in London and the 2016 Olympic Games in Rio de Janeiro. In 2009, Semenya won gold in the World Championships 800m race with a time of 1:55.45 and beat her own record in 2017 with a time of 1:55.16, again winning gold. After her win in the 2009 World Championships, at the age of eighteen, questions arose regarding Semenya’s exponential improvement in her performance. Just a month earlier, her personal best in an 800m race was four seconds slower. Having confirmed no doping was involved, she was subject to a sex verification test by the International Association of Athletics Federations (IAAF).

Semenya is a cisgender woman. A cisgender person is someone whose gender identity matches the sex that they were assigned at birth. However, upon being tested apropos of her unusual natural ability, it has emerged that Semenya possesses intersex characteristics. Semenya has hyperandrogenism, a medical condition in which the cisgender woman possesses an unusually high level of androgens (male sex hormones, such as testosterone).

When undergoing tests to understand her surprising improvement, Semenya was not informed that it was to determine her gender but rather that it was just routine. Semenya only became aware of the true nature of the testing upon the publication of the results. This was not officially released by the IAAF but instead leaked to the media. In November of the same year, three months later, South Africa’s sports ministry released a statement deciding to allow Semenya to retain her title and medal. It took a further eight months, until July 2010, for Semenya to be allowed to compete again in international women’s competitions.

In 2015, the IAAF suspended the policy on hyperandrogenism as the Court of Arbitration for Sport found that possessing unusually high levels of testosterone does not improve female athletic capability. On the contrary, hyperandrogenism has many negative side-effects including acne, seborrhea, and hair-loss on the scalp. This ruling came about when questions were raised over Dutee Chand’s eligibility to race in a women’s category. Chand is an Indian female athlete who, like Semenya, has an excess of androgen, and possesses unusually high levels of testosterone. Also mirroring Semenya’s experience, Chand’s case was treated very insensitively, with little regard for the personal ramifications. “Think about how much she would have suffered” Santhi Soundarajan, another Indian athlete is quoted saying; “She is not from a wealthy or powerful family; just another ordinary family… Even if she gets help from the State Association, can she stay in peace in her village?”

Between 2012 and 2017, Semenya continued to win races all over the world. However, in April of 2018, the IAAF re-opened discussions on the hyperandrogenism policy. The IAAF has emphatically rejected the claim that they wish to classify Semenya’s gender. Speaking to The Guardian, the IAAF said that they “accepted [Semenya’s] legal sex without question.” Yet this stance does not seem to follow through as the IAAF wanted the Court of Arbitration for Sport to bring in a ruling which required athletes with a so-called “Differences in Sexual Development (DSDs)” – sometimes coined “Disorders of Sex Development” instead – to have their testosterone levels lowered to an ‘appropriate’ level to ensure fairness when competing against other females. It was then announced that new rules would be introduced requiring female hyperandrogenous athletes to take medication to lower their natural testosterone levels. This caused major controversy, especially within intersex advocate groups. The rules exclusively apply to female athletes competing in the 400m, 800m, and 1500m. In 2017, the IAAF produced scientific evidence, published in the British Journal of Sports Medicine, to show the effect that increased testosterone levels can have in races ranging from 400m to a mile. Female athletes with increased testosterone were found to have a 1.8% to a 4.5% advantage over their counterparts with lower testosterone levels. Despite including results from 2127 observations of male and female performance, many feel that the introduction of this condition would appear to specifically target Semenya.

In February of this year, Semenya took a challenge against the Court of Arbitration for Sport (CAS), countering the argument that she should be required to take testosterone neutralizing supplements. The medication in question that Semenya would be required to take was a particular form of the contraceptive pill. The IAAF has defended its position by arguing that “if a DSD athlete has… male levels of testosterone, they get the same increases in bone and muscle size and strength and increases in haemoglobin that a male gets when they go through puberty, which is what gives men such a performance advantage over women. Therefore, to preserve fair competition in the female category, it is necessary to require DSD athletes to reduce their testosterone down to female levels before they compete at an international level.”

Public opinion generally believes that Semenya should be allowed to race in a women’s category, without having to take medication to lower her natural testosterone levels. If Semenya does have to take testosterone-lowering medication it is predicted that her average time will increase by between five and seven seconds in the 800m race. Rather than winning Olympic gold, Semenya would probably not even make the final were this to be true. The United Nations’ Human Rights Special Procedure Body has petitioned to have the IAAF drop the case as they feel it “contravene[s] international human rights.” Semenya stated in court that this is who she is, how she was brought up and that she is a clean athlete. She argued that it would be highly unfair to force her to take testosterone suppressants to be allowed to compete. It is a rare medical condition that gives her an advantage over her opponents. Surely this argument can be used in regard to any Olympic athlete; to achieve gold one must have an advantage over everyone else. However, the inclusivity extended to allow Semenya to race with her natural ability does not appear to extend equally to the trans community. The importance of the decision on the Semenya case lies not alone in the ramifications for hyperandrogenic athletes, but in the consequences it will have on the gender distinction of all categories in athletics, and furthermore sport in general.

In an open letter to the IAAF, the Human Rights Watch women’s rights director Liesl Gerntholtz stated; “The IAAF eligibility regulations for the female classification discriminate against women on the basis of their sex and their sex characteristics. Women with intersex variations have the same rights to dignity and bodily integrity as all women”. How are women who have been born with testes (as hyperandrogenous women have) but raised as female any different to transgender women? “Surely that [transgender] woman should have exactly the same rights” David Walsh, Chief Sports Writer with the Sunday Times commented as heard in an interview on the Today with Sean O’ Rourke show. He went on, however, to relay the story of two transgender athletes in Connecticut who recently finished first and second in the state championships, acquiring scholarships to university as part of their prize. “Is that fair on all the [cisgender] females who have been competing in those races?” he questioned, “it makes it extremely difficult for women with normal female levels of testosterone to ever win”. Sara R Philips, Chair of the Transgender Equality Network Ireland, agreed during the same radio broadcast that transgender women competing in a female category becomes a problem when competing, prior to medical intervention. However, she felt that it was the responsibility of each individual sporting body to devise its own rulings. The tribunal is taking place in Lausanne, Switzerland and has heard that the ruling will be “one of the most pivotal CAS [decisions].”

As it stands, there are few official rulings regarding the inclusion of transgender people in sport. Anyone can compete in the Olympics as a woman providing their testosterone is at a certain level for a year. However, the level required by the IOC is significantly higher than that proposed by the IAAF. Martina Navratilova, a Czechoslovak-born American former professional tennis player, and gay rights activist, has come out and defended the IAAF position in a column, in which she wrote that transgender women should not be allowed to compete in women’s sport and that it was a form of cheating. She later apologised and commented that she was solely referring to a “notional case in which someone cynically changes gender, perhaps temporarily, to gain a competitive advantage.”

Of course, Semenya is not an anomaly. She became the focal point of this controversy due to the mismanagement of her personal medical results. The gold, silver and bronze positions in the 2016 Olympic 800m race went to Semenya, Francine Niyonsaba and Margaret Wambui respectively – all of whom face questions regarding their testosterone levels. Many female athletes running in the same category as Semenya support the introduction of obligatory lowering of testosterone-lowering medicine in hyperandrogenous athletes. Notably, the British athlete Lynsey Sharp said; “everyone can see there are two different races happening here” after coming sixth in the same 2016 Olympic 800m race. The IAAF lawyer for the Semenya case, Jonathon Taylor has also commented; “[If] the IAAF is not permitted to require athletes of female legal sex who have testes and consequently male levels of testosterone to reduce those levels, then DSD and transgender athletes will dominate the podiums and prize money in sport, and women with normal female testosterone levels will not have any chance to win.”

There are murmurings of a third category in sport being proposed; in which all athletes who don’t conform to the ‘male’ or ‘female’ characteristics would compete. However many feel that this would be discriminatory, and serve only to highlight the ‘otherness’ of athletes competing in the third category. It could also pose problems for athletes in countries where being openly intersex is seen as ‘wrong’ or even criminal. Other proposals include defining categories exclusively by weight, height or testosterone levels like in other sports.

The International Olympic Committee is reserving judgement on testosterone limits for female athletes in the 2020 Japan Olympics until a ruling has been made in the Semenya case. If the IAAF are successful and win the case, Semenya and other intersex athletes will be required to administer testosterone-lowering medication for exactly six months before competing in the 2019 World Championships in Athletics in Doha, Qatar in September of this year. “On one hand we have to think of equality and equal rights, and on the other inclusivity and civil rights” Niall Moyna, Professor of Health and Human Performance in DCU, said, “it is very difficult”.

The Court of Arbitration for Sport is due to sit again on March 26th to give its verdict.