Semenya case highlights need for level playing field

Caster Semenya won a case in the European Court of Human Rights this month Picture: AFP

Have you ever wondered what it’s like to be an elite athlete in a sport that treats anti-doping seriously? Say you’re a world-class 1500m runner, an Olympic swimmer or a cyclist trying to win the Tour de France, what do you imagine is involved? If you’re at an elite level you are obliged to become part of the World Anti-Doping Agency’s Registered Testing Pool (RTP). With this come obligations, some of which negate the athlete’s right to privacy.

Being in the RTP means providing “whereabouts” information to the anti-doping authorities, thus allowing drug testers daily access to you. So, every quarter, the athlete provides a home address, an email address, a phone number and details of where they intend to be every day for the next three months.

If, during that quarter, the athlete is not going to be at the home address given, details of the new location must be provided.

The athlete must also identify a daily 60-minute window during which they will be available for testing. Should plans change at the last minute, the onus is on the athlete to inform the authorities of that change. Three missed tests in a 12-month period can be considered a doping violation.

Years ago I went for an early morning run with an RTP athlete. During that run, the athlete’s wife called to say the testers had arrived and he needed to get back home as soon as he could.

He’d changed his hour of availability the night before but the information hadn’t been passed on to the testers and they arrived an hour earlier than expected.

Still, he hightailed it back pretty quickly.

This process is, of course, a violation of athletes’ right to privacy. They must agree to strangers walking into their homes, asking them to provide a urine sample and then watching them while they urinate. When they go on holidays or to their partner’s house at the weekend they must provide details. It is difficult to imagine anything more intrusive, and yet it is necessary. The athletes’ right to privacy is secondary to sport’s right to integrity.

This is how it is. And how it should be. With this in mind, consider the latest development in the Caster Semenya case. From the moment the 18-year-old Semenya won the 800m gold medal at the 2009 World Championships in Berlin, the arguments about her right to compete in the female category have been divisive and unrelenting. It began with the International Association of Athletics Federations, now known as World Athletics, behaving with gross insensitivity in Berlin and subjecting the teenage athlete to a sex test soon after her victory.

That was wrong, even if the results showed that Semenya was a DSD (difference in sex development) athlete who had internal testes and produced testosterone at typically male levels. Any athlete in a female category who produces male-level testosterone is going to have a significant advantage over athletes with much lower female-level testosterone. Since Berlin, it’s been 14 years of argument and counterargument. At one point the Court of Arbitration for Sport (CAS) said it was unconvinced by the evidence that elevated testosterone levels provided a significant competitive advantage and World Athletics had to put to one side the obligation for DSD athletes to take a hormone suppressant that lowered their testosterone to female levels. That meant Semenya was free to compete at the 2016 Olympics in Rio without the obligation to take a hormone suppressant.

She won the 800m in Rio, ahead of Burundi’s Francine Niyonsaba, who won silver, and Kenya’s Margaret Nyairera Wambui, who took bronze. All three are DSD athletes who naturally produce male-level testosterone. For the general population, the number for those with DSD is one in 20,000.

In elite female athletics, it is seven in every 1000. “Everyone can see there’s two separate races, so there’s nothing I can do,” the British athlete Lynsey Sharp, who finished sixth, said.

Soon World Athletics showed CAS that testosterone levels seriously affected performance and the world body was allowed to reimpose the ruling that athletes in women’s events from 400m to one mile needed to be within the normal female range for testosterone.

To compete at 800m, Semenya and other DSD athletes again needed to take a contraceptive pill that brought their testosterone level into the female range.

Semenya challenged this at CAS and lost. She then went before a Swiss federal panel and lost again. Something Christina Kiss, chairwoman of that panel, said in her summing-up struck me as getting to the heart of things: “It is impossible to implement some rights without restricting others.”

It can be argued that Semenya, considered female at birth and raised as a female, should have the right to compete without having to take a hormone suppressant she doesn’t need.

But so too the huge majority of female athletes with female-level testosterone have the right to compete on a level playing field. This is the raison d’etre for having a female category.

Twelve days ago the European Court of Human Rights announced that it had found in Semenya’s favour in her case against the Swiss government, whose Federal Tribune had ruled against Semenya in an action taken against the CAS judgment. Seven of the 17 judges at the Court of Human Rights heard the case and on a 4-3 majority concluded that Semenya’s rights had been violated. They awarded her $100,000 in damages.

The Swiss government can appeal the judgment and then the case would be heard before all 17 judges in the European chamber. This is not likely to happen anytime soon. If there is no appeal, Semenya may be able to take her case back to CAS. In the interim, World Athletics is not changing its rules anytime soon.

Semenya hasn’t competed since June 2019 and unless the rules change, that’s likely to remain the case. In its judgment, the European Court insisted that a comparison between DSD and transgender athletes is “inappropriate” as the two cases are “very different”, because the advantage of the latter over women “derives from their initial biological constitution”. This makes no sense.

Women with internal testes producing male-level testosterone possess the same key advantage in female competition that transgender athletes enjoy.

Individual sports bodies have to be allowed to decide the rules for their competition because it is their responsibility to ensure fairness for the majority of participants. World Athletics has got this right.

The Times