Every law school student hears, early in their first year of classes, that “hard cases make bad law.”
The narrative of a particular case, the facts involved and the stakes can lead to decisions which do not follow the logic of the law, but produce some tortured conclusion that ends up creating more problems that are solved.
That is what the three-member panel of the Court of Arbitration for Sport considering the appeal of Athletics South Africa and two-time women’s Olympic 800 m champ Caster Semenya against the rules for female eligibility adopted by the International Association of Athletics Federations (IAAF) tried hard to avoid.
While the full, 165-page decision has not been made public yet, the Court did provide – as promised – a six-page summary of its findings. This document clearly demonstrated the anxiety that the panel felt, especially over a 2-1 decision, that ended up upholding the IAAF’s regulations. The decision states, in part, “[T]his case involves a complex collision of scientific, ethical and legal conundrums. It also involves incompatible, competing rights.”
So how did they come to their conclusion?
The path to the decision is made clear in the summary – although some like me will welcome the chance to scour the full text – and it’s a step-by-step march through the logic of competitive sport.
● Step 1: Why there are separate competitions for men and women
This is the key to the entire decision and must be understood with clarity in order to see why the majority came to its conclusion:
“The Panel considers that, once it is recognised that the reason for organising competitive athletics into separate male and female categories rests on the need to protect one group of individuals against having to compete against individuals who possess certain insuperable performance advantages derived from biology rather than legal status, it follows that it may be legitimate to regulate the right to participate in the female category by reference to those biological factors rather than legal status alone.” (Emphasis added.)
The panel stated repeatedly that the issue at hand was not whether a specific athlete who would be impacted by the IAAF’s regulations was considered a man or a woman. The question was whether, if an athlete wished to compete in the women’s division, the IAAF’s regulations appropriately identified specific biological characteristics that identified whether the athlete should be allowed to compete in that division.
That’s what this was all about. And both sides agreed that there should be separate divisions for men and women.
● Step 2: The biological basis of the advantage of male athletes vs. women athletes
Here the Panel was clear and unanimous and stated the issue with clarity:
“It was common ground between the parties that there is a substantial difference in elite sports performance between males and females. It was also common ground that (a) the normal female range of serum testosterone, produced mainly in the ovaries and adrenal glands, is 0.06 to 1.68 nmol/L; and (b) the normal male range of serum testosterone concentration, produced mainly in the testes, is 7.7 to 29.4 nmol/L. On the basis of the scientific evidence presented by the parties, the Panel unanimously finds that endogenous testosterone is the primary driver of the sex difference in sports performance between males and females.”
Are all these numbers right? Is the difference in testosterone levels between men and women that great?
Looking at a standard endocrine laboratory reference chart for the body’s chemical norms, the typical values for total testosterone range from 0.3-2.1 nanomoles per liter (nmol/L) for women and 10.4-41.6 for men, a bit higher than what the Panel quoted, but in the correct area.
The IAAF’s regulations limited competition in the women’s division to athletes with testosterone level of 5 nmol/L or less, or 298% of the Panel’s quoted upper limit for women, or 238% of the lab reference number. Those are the measurements that are being disputed.
● Step 3: Are regulations for high-testosterone women necessary for fairness?
The Panel’s review of the biology made clear its view – and that of the parties – that there should be different competitions for men and women. Now came the question posed by Athletics South Africa and Semenya, that the regulations were (a) scientifically invalid and, in any case, (b) discriminatory.
The testosterone numbers showed the scientific concept of the regulations to be valid. What came next was the question of discrimination, and here, the Panel strained to be as precise as possible, writing that:
“It follows that the Regulations are also prima facie discriminatory on grounds of innate biological characteristics.
“15. The conclusion that the DSD Regulations are prima facie discriminatory is merely the starting point of the Panel’s legal analysis. In particular, it is common ground that a rule that imposes differential treatment on the basis of a particular protected characteristic is valid if it is a necessary, reasonable and proportionate means of attaining a legitimate objective.” (Emphasis added.)
Where the IAAF succeeded in this case vs. its loss in the 2014 case brought by Indian sprinter Dutee Chand was in its study of the specific impact of women with high testosterone levels in each track & field event. The IAAF’s original regulations from 2011 applied to all competitors in all women’s events. The new regulations created requirements for lowered testosterone only in events from 400 m to the mile – the 400-800-1,000-1,500 m/Mile-400 m Hurdles – comprising four of the 21 individual events contested in the IAAF World Championships.
This was specifically noted as a tailored, proportional response to the issue of biological advantage:
“The majority of the Panel observes that the evidence concerning the performances and statistical over-representation of female athletes with 46 XY DSD in certain Relevant Events demonstrates that the elevated testosterone levels that such athletes possess creates a significant and often determinative performance advantage over other female athletes who do not have a 46 XY DSD condition.”
And it was that level of precision in the regulations that made the difference for the IAAF in this case.
The reference to “46 XY DSD” is to the situation in which Semenya and others find themselves in. The human female chromosome structure is usually 46 XX, while men are 46 XY. Women who have the 46 XY arrangement – about 1 in 80,000 – are identified for the purposes of the IAAF’s regulations as women with “differences in sex development” or “DSD.”
● Postscript: The IAAF regulations are valid, but they are still troubling
The Panel noted, at some length in the Summary, its concern that the IAAF’s regulations – even as tightly drawn as they are – will be problematic. It worried about an affected athlete being able to continuously maintain testosterone levels below 5 nmol/L, and whether the evidence really showed an advantage in the 1,500 m or mile, asking the IAAF to defer implementation of the regulations on that event and gathering more evidence (which the IAAF has declined to do). There was also a clear statement that continuing research is needed to validate the regulations going forward.
The Summary also lauded the 28-year-old Semenya on a personal basis and the Panel “expresses its profound gratitude for her dignified personal participation and the exemplary manner in which she has conducted herself throughout the proceedings.”
The final paragraph of the summary further underscored the difficulty of the case: “The Panel also stresses that while much of the argument in this proceeding has centred around the “fairness” of permitting Ms. Semenya to compete against other female athletes, there can be no suggestion that Ms. Semenya (or any other female athletes in the same position as Ms. Semenya) has done anything wrong. This is not a case about cheating or wrongdoing of any sort. 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.”
This was a very difficult case for the arbitrators and they said so plainly. But they also followed a logical process that many others would care not to argue in favor of other factors.
There will be far-reaching impacts to this decision. While Athletics South Africa agreed last June to respect the CAS’s decision, it is now considering appealing to the Swiss Federal Tribunal. It has 30 days to decide whether to do so.
The case may also impact the continuing regulation by the International Olympic Committee on participation in the Olympic Games by transgender athletes. Its 2015 guidelines specified that “total testosterone level in serum must remain below 10 nmol/L throughout the period of desired eligibility to compete in the female category.” In view of the IAAF’s requirement of 5 nmol/L, the IOC’s testosterone level could be revisited.
The entire CAS decision needs to be reviewed for more information about its deliberations and where the majority and minority separated in their thinking. With a possible appeal ahead and remembering that the IAAF is only one of the many International Federations, it’s likely that the holding is only a single step in a much longer process.