A few weeks ago, I was quite disappointed to see that the Swiss Supreme Court had denied Caster Semenya’s appeal of the Court of Arbitration for Sport (CAS) decision to require her (and other female athletes with excess testosterone) to medically modify their hormonal makeup with either drugs or surgery.
We have written previously about the trials Semenya has faced and what it means for women in sport. This post looks at sex tests, this one is a round up of arguments and opinion pieces about the research used to support the CAS and other sports agencies’ decisions, and this one looked at Semenya’s future as a runner in her chosen race length. Back in 2016, Tracy Isaacs looked at the issue from the perspective of body policing and sports performance.
There’s been a lot written about Semenya. Curiously, while the courts and the governing bodies rule against Semenya, there are many in the sports world as well as the community at large who see the decisions taken against Semenya as clear, transparent examples of sexism and racism. I would also argue that underlying these decisions is a fear of successful women, and the way these sports bodies manage that fear is to other-ise and marginalize those who do not fit an outdated image of women in sport through legal challenges and unfounded medical policies.
We can start with Semenya’s own statement about the decision. She says she “refuse(s) to let World Athletics drug me or stop me from being who I am. Excluding female athletes or endangering our health solely because of our natural abilities puts World Athletics on the wrong side of history. I will continue to fight for the human rights of female athletes, both on the track and off the track, until we can all run free the way we were born. I know what is right and will do all I can to protect basic human rights, for young girls everywhere.”
The Canadian Centre for Ethics in Sport released a very strong statement Sept. 23, 2020 condemning the decision and echoing Semenya’s position. Paul Melia, the CCES president and CEO, said “I think it is time for the sport community to reexamine its approach to sport categorization. When we ignore what we know about the broad spectrum of human experience in the area of biological sex and gender identity we risk violating the human rights of the people who do not fit an obsolete definition of a biological female. We cannot then turn around and justify the harm in the name of fairness.”
Semenya has once before used contraceptives to adjust her hormone levels and she has said the medications affected her performance and her general well being. She has said she will not consider further medical intervention including surgery. Individuals wishing to use such drugs to manage contraceptive needs or to manage hormone levels are well advised to consider the risks associated with birth control pills, including stroke and other cardio vascular events, as well as increased risk for certain cancers.
Medically and ethically speaking, why is it appropriate to subject an athlete to medically unnecessary treatment solely to meet an arbitrary benchmark for hormone levels?
David Epstein, writing for Slate, describes in this recent piece the evolution of his thinking about Semenya and the decisions to keep her out of certain track and field events unless she agrees to medical alteration to reduce what the World Athletic organization has determined is an unfair advantage against other women. Initially Epstein supported the arguments put forth by the WA; today he says he is not so sure.
Epstein says: “Our society—and, as a consequence, our sports—hasn’t been set up to accommodate gender-nonconforming individuals. That is not fair or just, and it puts us in the impossible position of selecting which kind of unfairness and injustice we believe is the least harmful to the fewest individuals.”
Epstein notes the processes used by the WA to categorize athletes has been abysmal and inhumane and he argues for more balance and flexibility. Even the Court of Arbitration for Sport understands its ruling is fundamentally unfair to athletes like Semenya. The CAS says “such discrimination is a necessary, reasonable and proportionate means of achieving the legitimate objective of ensuring fair competition in female athletics in certain events and protecting the ‘protected class’ of female athletes in those events.”
But is it really fair? No, it is not. It is also a violation of Semenya’s human rights. Human Rights Watch added to the debate with its post Sept. 8, 2020 saying, “Men athletes are subject to no such surveillance or compelled medical tests. There is no clear scientific consensus that women with naturally occurring higher-than-typical testosterone have a performance advantage in athletics. For these women athletes, being compelled to undergo a medical examination can be humiliating and medically unnecessary, as well as disrespectful of their rights. The post reported the Swiss Court recognized it was violating Semenya’s rights, but insisted upholding the track and field agency’s discriminatory practices was not inconsistent with Swiss public policy.
Marcie Bianco, writing for NBC, says the decision against Semenya is discrimination. Bianco went further and characterized the decision as abuse: “Legislated, medicalized, regulated — these various forms of systemized control are nothing short of abuse and absolutely impugn Semenya’s “human dignity,” contrary to the Swiss court’s gaslighting claim that its ruling did not undermine the runner’s “guarantee of human dignity.””
Bianco also goes on to say the decision by the Swiss Court is a form of gaslighting, one which weaponizes the language of fairness, equality, and protection for women. She points out the key contradiction in the Swiss decision: “The language of “fairness” is stunning since competition is not fair, and fairness is not the objective of any competition. (Why, for example, was Olympic swimmer Michael Phelps not barred from competition for his various “physical advantages,” including his disproportionate wingspan, double-jointedness, and low lactic-acid levels?)”
Michael Phelps is a good example. Other people have argued that Phelp’s can’t help his height, or other physical attributes, but no one has suggested he medically alter his low lactic acid levels medically to level the playing field.
The fact is Phelps is white and Semenya is black. Bianco points out most clearly the racist underpinnings of the arguments against Semenya: “When women — especially Black women — are too good, when their excellence threatens men, these men will do anything to steal that power, including positioning themselves as the saviors of “equal rights” and “fairness” for white women. This language is about dehumanizing black women in order to delegitimize their excellence, no matter their testosterone levels — if the decades of racist dog-whistling against Serena William’s excellence isn’t a firm case-in-point.”
Dawn Ennis, writing for Forbes, said the launch of the #LetHerRun movement is focused on pressuring the WA to change its policies. Led by the first Brazilian gold medalists , Jackie Silva and Sandra Pires, the movement was launched with a film, #LetHerRun documenting the sexism and abuse of sex testing and body inspections. Silva said “Caster’s case deserves our attention because it affects the destiny of dozens of other athletes who will have their careers ended prematurely simply because they were born out of the standards imposed by technocrats from a regulatory agency. (…) Why hasn’t the natural hormone production invalidated any male career ever? Has anyone stopped to compare Usain Bolt’s levels of testosterone to those of Justin Gatlin, for instance?””
Forcing women who don’t conform to stereotypical expectations of femaleness to alter their physiology is abuse. Being selective about the research used to support an approach reveals inherent biases and supports discriminatory practices on the basis of sex and race. Caster Semenya’s legal battles will continue to influence the trajectory of women in sport as the decision by the Swiss Court still leaves many questions unanswered.
-MarthaFitat55 writes from St. John’s, Newfoundland and Labrador.