Tuesday 21 May 2019

Tommy Conlon: 'Ten Solomons could not harmonise the scales of justice in Semenya case'

The Couch

Caster Semenya. Photo: AP
Caster Semenya. Photo: AP

Tommy Conlon

On Friday evening Caster Semenya called on God to be her source of wisdom, King Solomon having left the building two days earlier.

On Wednesday in Switzerland, the Court of Arbitration for Sport (CAS) made public its landmark ruling on her uniquely complex case. The tribunal consisted of an Australian former federal judge, a Swiss judge and a Canadian lawyer. They had sat for five days in February listening to a raft of specialist evidence, and to competing arguments from lawyers for the International Association of Athletics Federations (IAAF) on the one hand, and from a legal team representing Semenya that had been drawn both from Canada and her native South Africa.

The tribunal's full 165-page ruling has not yet been published. But in an executive summary released on Wednesday, it found against Semenya by a 2-1 majority. CAS agreed with the IAAF that the exceptional levels of testosterone that naturally occur in female athletes with hyperandrogenism - "differences in sexual development" (DSD) - gives them an unfair advantage. In April 2018, the IAAF announced that female athletes with DSD would have to reduce their testosterone levels to a maximum of 5 nmol/L - five nanomoles per litre of blood. CAS upheld this rule in its verdict last week.

Semenya therefore, and potentially other peers such as Francine Niyonsaba of Burundi and Margaret Wambui of Kenya, will have to start taking hormone medication similar to the contraceptive pill in order to reduce their testosterone to the required level. The ruling currently applies only to events ranging from 400m to the mile. Semenya won Olympic gold at 800m in 2012 and 2016; she won three World Championships, in 2009, 2011 and 2017. Niyonsaba and Wambui finished second and third behind Semenya at the Rio Olympics.

At a Diamond League meet in Qatar on Friday, Semenya finished first in the 800m with Niyonsaba again in second. Asked afterwards if she would take the testosterone-reducing medication, she replied: "Hell no." There had been speculation that Friday's race might be her last. Again she was defiant: "How am I going to retire when I'm 28? I still have ten years or more in athletics. It's up to God, God has decided my life, God will end my life. God has decided my career, God will end my career. No man, or any other human, can stop me from running."

In truth, if ten Solomons had been presiding at the CAS hearing, they wouldn't have produced a verdict that could harmonise the scales of justice after listening to a kaleidoscope of evidence that encompassed biology, genetics, endocrinology, sociology, psychology and medical ethics, among other subjects.

The IAAF was essentially arguing that in order to protect the majority of female athletes, the few with DSD would have to compromise. They said that 99 per cent of women have around 0.12-1.79 nmol/L of testosterone in their bodies while those with DSD are in the male spectrum of 7.7-29.4 nmol/L. It has been widely reported that Semenya does not have ovaries or a womb and has internal testes. Sports scientists have calculated that if she reduced her testosterone levels to the IAAF threshold, it would cost her some seven seconds over 800m; it would send her tumbling down the world order.

The CAS panel in its executive summary admitted that the IAAF rule was "discriminatory" - but necessarily so. "It was common ground between the parties," they write, "that there is a substantial difference in elite sports performance between males and females. On the basis of the scientific evidence presented by the parties, the Panel unanimously finds that endogenous testosterone is the primary driver of the sex difference in sports performance between males and females . . . The IAAF submitted that if the purpose of the female category is to prevent athletes who lack that testosterone-derived advantage from having to compete against athletes who possess that testosterone-derived advantage, then it is necessarily 'category defeating' to permit any individuals who possess that testosterone-derived advantage to compete in that category. The majority of the Panel accepts the logic of the IAAF's submission."

Many female athletes, former and current, have welcomed the CAS decision. Paula Radcliffe had previously warned that if testosterone limits were not applied, sports agents working in track and field would actively seek out athletes with DSD for their earning potential. Jonathan Taylor, a lawyer representing the IAAF, has said they would "dominate the podiums and prize money." This Pandora's box, as they see it, might also include male-to-female transgender athletes muscling in on the action, as it were.

When Semenya first made international headlines in 2009, one couldn't but feel sympathy for this schoolgirl from a rural village who was being subjected to humiliating speculation, and invasive examination of her intimate physiology. Fellow athletes openly declared "she's not a woman, she's a man."

Ten years later, she is a superstar of her sport, holder of two Olympic gold medals, wealthy and influential; she has become an ambassador for African women and for the marginalised community who find themselves outside of the binary male and female norm. Whilst she suffered a great deal of ignorant treatment herself, Semenya's decade in the public eye has helped to humanise this tiny, vulnerable cohort of people. She paved the way.

The CAS tribunal in its report made a point of commending her "grace and fortitude" and "dignified personal participation" in the hearing.

The panel also expressed "serious concerns" about DSD athletes being forced to take testosterone suppressants, and the ethical implications of such a rule. CAS and the IAAF admit that the current set of regulations are a "living document", which is to say they are not set in stone. Last week's ruling was just a milestone on a much longer road.

Her legal team has less than 30 days to lodge an appeal with the Swiss Federal Tribunal. Like Semenya herself, this is a case that promises to keep on running.

THECOUCH@INDEPENDENT.IE

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