Caster Semenya files appeal over ruling that limits testosterone in female athletes

Open this photo in gallery:

South African runner Caster Semenya has launched a new legal challenge to a move by the global governing body for track and field to restrict testosterone levels for some female athletes.

Semenya announced on Wednesday that she will appeal a recent ruling of the Switzerland-based Court of Arbitration for Sport (CAS), which upheld a testosterone regulation adopted by the International Association of Athletics Federations.

The IAAF regulation came into force on May 8 and it sets a specific testosterone level for female athletes competing in races from 400 metres to one mile. If a runner exceeds the level set by the federation, she must take drugs to lower her testosterone or compete against men. The ruling has been closely watched by other sports organizations and the International Olympic Committee, which is considering introducing a similar threshold for transgender athletes competing at the 2020 Olympics in Tokyo.

Semenya, a two time Olympic champion in the 800 metres, has differences of sex development, or DSD, which causes her to have a high level of testosterone. She has been battling the IAAF for years over the issue and has vowed to ignore the new regulation.

“I am a woman and I am a world-class athlete. The IAAF will not drug me or stop me from being who I am,” she said in a statement on Wednesday.

The appeal has been filed in Switzerland’s Federal Supreme Court and Semenya’s lawyers will argue that the IAAF’s regulation violates “widely recognized public policy values, including the prohibition against discrimination, the right to physical integrity, the right to economic freedom, and respect for human dignity." The IAAF’s rule goes against the “principles of Swiss public policy,” her lawyers said in a statement.

"In the race for justice, human rights must win over sporting interests,” added Dorothee Schramm, a Geneva-based lawyer who is part of Semenya’s legal team, which also includes Toronto lawyer James Bunting. It’s unclear whether Semenya’s lawyers will seek a court order suspending the implementation of the IAAF regulation while the appeal is being heard.

The IAAF has long argued that testosterone is a key determinant in athletic performance because it helps build muscle and bone mass. In its decision, the CAS panel found by a 2-1 majority that while the IAAF’s mandatory threshold for the hormone was discriminatory, that discrimination was necessary and reasonable to ensure “fair competition in female athletics in certain events.”

It also said that while many factors go into athletic performance – such as training facilities, coaching and other genetic attributes – DSD athletes have testosterone levels approaching the male range, which gives them a significant performance advantage over other female athletes. However, the panel also raised questions about how the IAAF policy will be implemented and whether taking drugs will work.

The ruling caused an outcry in South Africa and the government had promised an appeal would be launched. The World Medical Association, which represents national medical organisations in 114 countries, condemned the decision and called on doctors to refuse to co-operate with the IAAF in implementing the regulation.

The WMA said medical treatment “is only justified when there is a medical need,” and it added: “The mere existence of an intersex condition, without the person indicating suffering and expressing the desire for an adequate treatment, does not constitute a medical indication.”

In Canada, the governing body for track and field, Athletics Canada, said it would not implement the IAAF regulation for domestic competitions and the Canadian Centre for Ethics in Sport called the ruling discriminatory and noted that no similar restriction exists for men.

The IAAF has stood by the regulation and several high-profile athletes, including marathon world record-holder, Paula Radcliffe, have said the CAS decision will help protect women’s sport. The IAAF has also insisted that the rule is based on several studies and “observations from the field” during the past 15 years. And it said that it is not uncommon for some DSD women to lower their level of testosterone as a health precaution by taking contraceptive pills since some types of DSD carry a greater risk of cancer.