Eleven years after Caster Semenya became world champion in the women’s 800-meter—a feat that made her an international star and also sparked crude questions about whether she was a woman—the two-time Olympic gold medalist’s quest to compete at the 2020 Olympics has likely ended. On Sept. 8, the Swiss Federal Supreme Court dismissed Semenya’s appeal of a ruling that forbids her from competing unless she alters her body chemistry. While Semenya’s attorneys say they are exploring their options, there is no clear path to changing the outcome.
Semenya, 29, was born with the rare genetic variant 46 XY DSD, which means that she has both X and Y chromosomes, a sequence ordinarily found in men. Her testosterone level is extremely high for a woman and falls in a range normally detected in men. These characteristics have led to widespread disagreement over whether the South African native possesses an unfair biological advantage and whether excluding her on the basis of a genetic variant constitutes unlawful discrimination.
The core of Semenya’s case rests in the International Association of Athletics Federation’s issuance of so-called “Athletes with Differences in Sex Development” regulations. The regulations, which came into force two years ago, only apply to female athletes who have 46 XY DSD and only those who compete in the 400-meter, 800-meter or 1,500-meter. In order to be eligible, these athletes must lower their testosterone level for six months prior to a competition. The regulations, the IAAD stresses, are premised on expert findings that testosterone—which helps to build muscle mass and enhance cardiovascular health—has a considerable effect on athlete performance. IAAF’s president Sebastian Coe maintains the regulations “ensure a level playing field [and] fair and meaningful competition.”
Semenya argues the regulations violate both the Olympic Charter and basic human rights. She emphasizes that they blatantly discriminate on the basis of biological traits, which athletes “have possessed since birth and over which they have no control.” Semenya also maintains that labeling women with 46 XY DSDs as “biological males” is “itself a form of discrimination based upon a sex characteristic.” In addition, she rejects segregating “women with stereotypically male” traits from those with “stereotypically female appearances.” Semenya also objects to becoming “a human guinea pig” for “experimenting” how medications might adjust testosterone levels.
Last year the Court of Arbitration for Sport (CAS) rejected Semenya’s appeal. While it agreed the regulations are discriminatory on their face, it did not regard that factor as determinative. Instead, CAS reasoned the regulations are a “necessary” means “of achieving the aim of . . . the integrity of female athletics.”
The Swiss Supreme Court concurred, finding that the regulations are focused on “fairness in sport.” The Court also highlighted that Semenya will not undergo hormone therapy or take testosterone-lowering drugs “against [her] will.” Semenya is “free to refuse treatment”—though, by doing so, she can’t compete. Still, in light of Semenya having a choice, the Court reasoned that Semenya’s dignity as a human is preserved.
Semenya issued a statement sharply critical of the ruling, saying the regulations are “on the wrong side of history.” She also signaled she does not intend to medically alter her body “to stop me from being who I am.” Semenya could compete in the 200-meter, which falls outside the regulations.
Semenya’s legal controversy is the most prominent one involving sex, biology and sports, but there are others worth watching. In Connecticut, for example, there is an ongoing legal battle over the state’s athletic association allowing transgender high school girls to play on girls sports teams.
Four cisgender high school track athletes argue that having to compete against transgender athletes violates Title IX, which generally guarantees that women have an equal athletic opportunity to participate in school sports. The plaintiffs charge that “permitting boys who are males in every biological respect to compete in girls’ athletic competitions” will result “in boys displacing girls in competitive track events.” The plaintiffs say they’ll lose out on opportunities to win medals and attract college scholarships.
Attorneys for the transgender girls reject these arguments, stressing their clients “were assigned a male sex at birth but are young women.” These athletes have also undergone medical transitions that have led to hormone levels “comparable to the hormone levels of non-transgender girls.” The attorneys further highlight that “the overwhelming majority of high school athletic associations have policies allowing boys and girls who are transgender to play on the same teams as other boys and girls.” The case is currently before a federal court in Connecticut.