The Decision Against Caster Semenya is Flawed
Paul Melia, CCES president and CEO
Last week, a Swiss federal tribunal determined that the decision by the Court of Arbitration for Sport (CAS) that World Athletics’ policy for athletes with differences in sexual development (DSD) is necessary to ensure fair competition in women’s sport does not violate Swiss public policy. This allows the CAS decision to stand. I feel strongly that CAS’s decision was wrong as it was based on a false choice between fairness and inclusion and I am bewildered and disappointed by the Swiss court’s ruling.
The decision by CAS was based on the outdated concept that sex and gender are one and the same binary categories and that elevated levels of naturally occurring testosterone, separate and apart from all of the other naturally occurring advantages possessed by high performance athletes, proffer an unfair advantage for female athletes. This is evidence that sport is locked in an old paradigm that believes sex is binary – athletes are either male or female – and they have chosen to narrow in on the hormone testosterone as the great divide between the two categories.
We now understand that sex and gender are not one and the same. Gender identity is a personal sense of who you are. It might be male, female, some combination of both or neither one. It is complicated.
The most high profile athlete to be affected by this decision is South African middle-distance runner and Olympic and World champion, Caster Semenya. Caster is a woman, has always identified as a woman, and refuses to use medication to suppress her naturally high testosterone that World Athletics believes should be regulated. At one time, Caster did use medication to lower her testosterone, but it had side effects and she decided not to continue with it and to challenge the regulations imposed on female athletes with DSD instead. Under these new regulations, she will not be able to defend her titles if she won’t medicate.
I can’t imagine how confusing and disorienting it would be to have an international court tell me that I’m not who I know myself to be. Caster has been sex and gender policed for over a decade – told repeatedly that she’s not a woman and that it’s not fair for her to compete in the women’s category. She was singled out for sex testing by World Athletics because her appearance is not considered feminine and, if I may, because she is fast.
Federal and Provincial Human Rights legislation in Canada protects individuals against discrimination based on gender identity. As a result, I think that a Canadian court considering such a CAS ruling against a Canadian athlete would have reached a different conclusion to the Swiss tribunal.
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.