High-profile sports events are invariably divided into female and male categories, but human beings do not always fit into one of those categories.
The United Nations High Commissioner for Human Rights estimates that between 0.05 and 1.7 per cent of the population is born with intersex traits, also known as differences of sex development (DSD).
So, what happens to athletes who fall somewhere between the male and female categories?
The question is not just a 21st-century social justice issue, it’s a technical question that has troubled sports administrators for decades.
Despite great advances in biological science and Wednesday’s ruling by the Court of Arbitration for Sport (CAS), we seem to be no closer to a truly fair solution.
In fact, when ruling by a majority of 2-1 to reject the appeal of athlete Caster Semenya and Athletics South Africa, the CAS panel of three judges said the disputed regulations are “discriminatory, unnecessary, unreliable and disproportionate.”
However, the CAS judges also said they made the ruling because the regulations are a “justified and proportionate means of ensuring consistent treatment and preserving fair and meaningful competition within the female classification.”
In other words, for now, this will have to do.
The rules in question were initially proposed for introduction by the International Association of Athletics Federations (IAAF) on Nov. 1, 2018 but were delayed pending the CAS appeal. They concern female athletes with DSD competing in distances between 400 metres and one mile (1,609 metres).
The DSD regulations now require these women to take hormone suppressants to reduce their levels of testosterone “for at least six months prior to competing.”
Aside from the judges’ significant reservations, another indication of the lack of confidence in the regulations comes directly from the organization that formed them.
The IAAF describes its DSD regulations as a “living document,” subject to change as track and field’s governing body sees fit.
A history of imperfect solutions
In the 1936 Olympics, there was much conjecture about the sex of athletes Stella Walsh (Stanisława Walasiewicz) of Poland and Helen Stephens of the U.S.
After Walsh was murdered in a robbery in 1980, an autopsy showed she had male sex organs and that her chromosomes were mostly male.
In the 1960s, the International Olympic Committee introduced what it called “gender verification” tests (technically, “sex” tests).
This involved the humiliating practice of female athletes having to show their genitals to a panel of doctors.
In 1968, science took over, with athletes providing saliva samples for a chromosome test.
Usually, women have XX chromosomes and men have XY.
Thirteen women failed that test between 1972 and 1984.
Princess Anne was reportedly the only woman to be excused from the verification when she competed in the three-day equestrian event at the 1976 Olympics in Montreal.
However, the chromosome test was found to be flawed when Spanish hurdler Maria José Martínez-Patiño was told she was not a woman.
Her test showed she had the XY male chromosome — a result she appealed, showing that it was the result of a genetic condition.
In 1999, the unreliable test was eventually scrapped.
In 2009, South African athlete Semenya, then 18, easily won the 800-metre world title in Berlin.
After her win, it was revealed that she had undergone a sex test before the event, although she had thought it was a normal drug test at the time.
The results were never made public, but there were reports that Semenya’s test showed both male and female characteristics.
The South African went on to win the 800-metre Olympic title in London 2012 and Rio 2016.
In 2015, Indian sprinter Dutee Chand challenged and overturned a decision to ban her from competition after she was found to have testosterone levels typically found in men.
Between 2011 and 2013, the IAAF had been gathering evidence on how testosterone affects the performance of female athletes.
In 2017, they said their data suggested testosterone only had an effect on female athletes in events between 400 metres and one mile.
Hence the rule, which affects Semenya but not sprinters or long-distance runners.
The problem many scientists have with the supposed correlation between testosterone and performance is that, although high testosterone can certainly improve performance, it alone is not enough.
“I think that if testosterone was the only cause for this improvement in performance that we would see women with DSDs, who have high levels of testosterone, achieving and being able to compete alongside men,” said Prof. Richard Holt, endocrinology expert at the University of Southampton in England.
“That’s never occurred, and if we actually look at Caster Semenya’s own personal times, we see that the maximum that she has beaten other women is in the order of about one and a half to two per cent so you can see there’s a huge difference between the elite male and the elite female times and the differences between Caster Semenya and other women so, to my mind, it suggests that there (aren’t) just the issues relating to testosterone, and there are probably other issues as well.”
Semenya can appeal the CAS decision within 30 days, but if she wants to compete in this year’s World Championships in Qatar, she will be obligated to take hormone suppressants starting May 8.
Her somewhat ambiguous tweet on Wednesday said: “Sometimes it’s better to react with no reaction.”
If Semenya chooses to neither appeal the CAS decision nor take the medication, it could spell the end of her career.