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Caster Semenya’s case about having athletes who live with hyperandrogenism or DSD continues (Differences in Sexual Development). It has now been referred to the Grand Chamber of the European Court of Human Rights (ECHR). The ECHR will hear the case for a final ruling following a referral request from the Swiss government.

Semenya’s dilemma

Back in 2016, the biggest controversy in athletics was all about what to do with Sout African Caster Semenya. The 800-metre gold medallist from the 2016 Rio Olympic Games self-identifies and chooses to compete as a woman while living with hyperandrogenism.

Fast forward seven years, she is now a two-time Olympic gold medallist, three-time World Champion and the South African record holder in the 800-metre event and five other distances. Now, though, she is fighting for her participation in the sport, as well as for generations to come.

Semenya is intersex. Non-official medical records indicate that she produces a significantly higher concentration of testosterone than other women. Back in 2016, the governing body of track, World Athletics, according to the Court of Arbitration for Sport (CAS), did not adequately prove that endogenously (naturally occurring) elevated testosterone is a performance enhancer.

The organization apparently failed to do so during their defence against the case of India’s Dutee Chand, who appealed their ruling that women with hyperandrogenism must take testosterone-limiting medication.

Unlike drug cheats, Semenya is not at fault for her condition. However, hyperandrogenism likely gave her an advantage over the athletes that she competed against. At the time, there was not enough research on the subject to prove how much she benefited.

While Semenya’s sex verification test results that the World Athletics (the IAAF at the time) ordered in 2009 were not officially released, some information was leaked. Semenya has internal testes, no ovaries or womb and endogenously produces at least three times
the testosterone in comparison to the average woman 99 times out of 100.

Many of her competitors were frustrated by her so-called advantage. Some were unkind. Elisa Cusma Piccione of Italy said, “For me, she is not a woman… It is useless to compete with this, and it is not fair.”

Britian’s Lynsey Sharp said after being easily defeated in Rio, of racing Semenya that “it is out of our control and how much we rely on people at the top sorting it out. The public can see how difficult it is with the change of rule but all we can do is give it our best.” She also suggested in that interview that her feelings about Semenya’s unchecked testosterone levels were echoed by other 800m runners who finished off the podium.

Canada’s Melissa Bishop-Nriagu was not one of them. Although at times Bishop has avoided discussing the subject with the media, she did tell Ottawa Citizen Journalist Mohammed Adam, “No one in the race has control over this. Me missing the podium is because I didn’t run fast enough, not because of who was in the race.”

Bishop-Nriagu finished as the first woman who does not live with hyperandrogenism, but fourth overall. The top three, as it came out later, are athletes with Differences in Sexual development or DSD.

Semenya stormed onto the track

Semenya stormed onto the track scene in 2009. In just one year, she dropped her bests from 2:04.23 to 1:55.45 as a teenager, an unheard-of performance improvement, which prompted World Athletics to put her through a sex verification test. Tactless as it was at the time, it revealed Semenya’s hidden advantage. She was subsequently ordered to take testosterone-limiting medication.

During the time that she was receiving the testosterone-controlling protocol, her performances plummeted. From 2009 to 2016 she ran annual seasonal bests at well under 2:00. Except during 2014, when she could manage just 2:02.66; a big drop in performance.

The CAS in 2015 ruled that World Athletics did not adequately prove that elevated testosterone in hyperandrogenous women is a performance enhancer. So they subsequently overturned the requirement to have her T-levels governed through medication. The CAS also called it a human rights violation, all in the case of Chand’s appeal of the ruling. Chand was a sprinter, who competed in the 2016 Rio Games.

When the CAS overturned the policy, the governor was lifted and Semenya was back to near-world record form.

Unsurprisingly, Semenya was once again dominant in 2016. She easily ran her personal best, and again the fastest time of the year in the world at 1:55.28.

But by doing so, Semenya demonstrated anecdotally that elevated T-levels are indeed a performance enhancer. Science has proven — long before the CAS ruling — that elevated levels of testosterone in women can provide an increase in performance. This is why the World Anti-Doping Agency banned the use of testosterone, and surely it is impossible for the CAS to deny it is not clearly a performance enhancer.

In fairness, Canadian physiologist Trent Stellingwerff made it clear that there is not enough information regarding how much of a performance enhancement exists when elevated levels of testosterone are naturally produced in hyperandrogenic women. The results may be very different than for those who acquire the hormone exogenously.

The only way that women (the vast majority) can elevate their testosterone to the levels of hyperandrogenous women is to take performance-enhancing drugs. In other words, they would have to cheat. This creates a paradox: do you force a small minority of athletes to take inhibiting drugs in order to maintain the parameters of what is “female,” or do you open up doping? Semenya is going to try to help find the answer to that question through the courts.

The latest ruling

In March 2023, World Athletics ruled that DSD athletes must now have hormone-suppressing treatment for six months before being eligible to compete in all-female events.

“For me, I believe if you are a woman, you are a woman,” said Semenya.

Semenya ran in the 5,000m at the 2022 Eugene World Athletics Championships but failed to qualify for the final. She is forced to use the testosterone-limiting medication in order to compete.

In July, the European Court of Human Rights (ECHR) ruled in her favour in a case related to testosterone levels in female athletes.

The case at the ECHR was w against the government of Switzerland for not protecting Semenya’s rights which dates back to a Swiss Supreme Court ruling from 2019.

The ECHR found the Swiss government did not protect Semenya from being discriminated against when its Supreme Court refused to overturn a decision by the CAS, which upheld the World Athletics apparent findings that they proved she does hold an unfair advantage.

The case has now been referred to the Grand Chamber of the ECHR for a final ruling following a referral request from the Swiss government.

Heading back to court

Semenya said recently she was turning her attention to “winning battles against the authorities” rather than collecting medals, with competing at the Paris 2024 Olympics no longer a goal.

She said it was about “fighting for the upcoming generation because there are a lot of kids affected by the same ruling.”

In an interview with BBC Semenya said:

  • She felt she was “different” from the age of five but “embraces” her differences
  • She will not conform “to be accepted”
  • She wants to empower women to “have a voice”
  • “Leaders” in sport are “turning women against women”

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