By: Chakradhar Reddy

[i]The Verdict by Swiss federal tribunal upholding the Court of Arbitration of Sport verdict has received a largely mixed response, with many women athletes hailing the decision as a step towards right direction in maintaining an equal playing field in Women sports. While Caster Semenya argued on the basis that DSD regulations are discriminatory, IAAF based its arguments on scientific, legal and ethical foundations. The Swiss Federal Tribunal concluded in its ruling "Based on these findings, the CAS decision cannot be challenged. Fairness in sport is a legitimate concern and forms a central principle of sporting competition. It is one of the pillars on which competition is based”.

[ii]New eligibility regulations which were being questioned were introduced by IAAF in 2018 which clearly mandated women athletes to not have more than 5 nanomoles per litre of testosterone to ensure a level playing field among women athletes.

The CAS Panel had earlier dismissed the arguments of Caster Semenya that the DSD regulations were invalid and denied the request for arbitration. It had also observed that the even though the regulations were discriminatory in nature, it was necessary and reasonable to protect the equality and integrity that exists in women sports. Semenya had argued that the DSD Regulations unfairly discriminate based on at least five grounds: natural physical, genetic or biological traits, sex, gender, physical appearance and what events a woman competes in. She also submitted that these new regulations would result in a violation of the IAAF Constitution, the Olympic Charter, international human rights laws including those that apply in Monaco (the governing law of the IAAF) and the domestic laws of many countries in which the IAAF has members and holds international competitions.

The judgment has highlighted the role of scientific studies in ensuring Women sports stay equally competitive and fair.  Higher testosterone levels for intersex track athletes with XY chromosomes would mean a complete disadvantage for their competitors. Generally, women athletes have testosterone levels between 0.12 to 1.79 nmol/L. [iii]Female athletes with testosterone levels of 5nmol/L or above are considered either to be DSD or doped athletes. There is evidence that exogenous doses to increase women’s circulating testosterone to 7.3 nn101/L resulted in 4.4% increased muscle mass 12-26% increased muscle strength and the increasing endogenous testosterone from 0.9 to  5, 7 and 10 nmol/L increased circulating haemoglobin by 5.5%, 7.5% and 8.9% respectively.

This advantage that arises for intersex athletes from these factors is of the biggest concern. This required them to comply with the regulations where testosterone levels must be decreased. This verdict here would require Semenya lower her testosterone to a level specified by the international track body for at least six months before competing if she wants to participate in any races of 400 meters to a mile. The IAAF has justified its regulations throughout the prolonged legal battle by committing to the idea that 46 XY DSD athletes wishing to compete in women sport do so in fair and safe manner. The verdict could mean IAAF and various sports bodies could bring in many more reforms on the basis of scientific evidence to ensure that majority women athletes with XX chromosomes are not discriminated.

Next recourse for caster Semenya would be the European court of Human rights but with Olympics being just a year away, one does not expect any relief before the games begin. However, she can participate in either sprint races (200 meters) or long distance races (more than one mile) which don’t fall under the protected category as per [iv]IAAF regulations based scientific analysis measuring the impact of testosterone.