New concerns surround the government’s increased use of legislative powers to bypass the parliament and create laws that cannot be amended or overturned. The federal government has embedded special powers in new Covid-19 laws to make unilateral changes to non-pandemic-related legislation, using what are known as ‘Henry VIII clauses’ – named for the unchecked power they involve.
The Caster Semenya ban
Sport and politics. Constant – if secret – bedfellows. Throw in medical and professional disagreements, allegations of racism, challenges to human rights and public outrage, and you’ve got a story for the ages.
Caster Semenya, a South African runner and Olympic champion, is the focus of a divided sporting world; a world that has become more complicated more quickly than the authorities can keep up with.
Put simply, this is a story of a runner being discriminated against. Even this month’s Court of Arbitration for Sport (CAS) decision, which found in favour of a new rule that banned her, described the rule as “discriminatory” yet “necessary, reasonable and proportionate”.
In more nuanced terms this is a story of the intersection between sex determination, gender, human rights and disputed scientific evidence.
Semenya is recognised as female in every aspect of her life except in her chosen profession – sport. She was born female, was raised female and is legally recognised as female. Although she does not publicly identify as intersex, this broad term has been used to describe Semenya in the media. According to the Office of the United Nations High Commissioner for Human Rights, intersex encompasses several variations in sex characteristics or individuals who “do not fit the typical definitions for male or female bodies”.
The international governing body of world track and field, the IAAF, determined that athletes such as Semenya, with naturally occurring high levels of testosterone, have an unfair advantage over other female athletes and implemented a new rule banning them from certain events.
South Africa’s sports minister, Tokozile Xasa, has now instructed the governing body of athletics in her country to appeal the CAS decision in the Swiss Federal Tribunal. The appeal must be lodged by May 31.
So what’s the big deal over testosterone?
It’s long been the word of choice when it comes to describing masculinity, strength or power. Testosterone is often referred to as the “male hormone”.
Athletes in the past have injected it to heighten their sporting abilities. In Semenya’s case, her elevated levels are natural. She is a non-doping athlete competing in a sport where doping is rife. Yet she is now being asked to medicate herself, or undergo surgery, to reduce her testosterone levels to a more “normal, female range”.
Testosterone is seen as a good thing for male athletes who are not tested to determine how much – or how little – they individually have. But for women it’s described as unfair and the IAAF argues they need to “level the playing field”.
Katrina Karkazis, the author of Testosterone: An Unauthorized Biography, says that as far back as the 1920s scientists discovered testosterone was not limited to boys and men and in fact was needed for normal, healthy functioning bodies that were both male and female. “That the hallmarks of ‘T’ have been yoked exclusively to men, and that the hormone’s effects credited as the primary drivers of sexual development and sex differences, are less a function of science than of ideology,” she writes.
Others, who agree with the anthropologist and bioethicist, describe Semenya’s testosterone advantage as no different from any other naturally occurring physical advantage – whether it be Olympic sprint champion Usain Bolt’s longer legs or Olympic swimming champion Michael Phelps’s wider wingspan.
Former 800-metre runner and now professor of law at Duke University Law School Doriane Lambelet Coleman disagrees and says she canvassed a wide range of views from other athletes before testifying for the IAAF at the CAS hearing. Writing for the online magazine Quillette, she says the CAS decision is a victory for female athletes everywhere.
“I did find a few top female athletes who were supportive of ‘women with high T’ in the women’s category,” say Coleman. “But I also found that the terms ‘women with high T’ and ‘women with hyperandrogenism’ have been widely misunderstood to mean ‘elevated levels of male sex hormones … in the female body.’
“When this misunderstanding is cleared up and they learn that the term ‘hyperandrogenism’ has been misapplied to cases of normal T levels in biological males who identify as women, the support disappears and what remains are questions about how and why they were led to think otherwise.”
It appears the IAAF’s case was based on questioning whether Semenya is a woman at all. Sport has traditionally been run in two categories – male and female. Society is no longer bound by that binary, leaving those in charge of sport struggling to keep up.
The science is complicated and disputed. Back in 2017, the IAAF published research it says showed that women with DSDs – differences in sexual development – had a performance advantage of about 3 per cent over other female athletes. That paper has been challenged by other scientists who insist that up to 32 per cent of the data was flawed.
Professor Roger Pielke Jr, a witness for the Semenya team at the CAS hearing, has questioned the ethics of asking a healthy athlete to medicate to be able to compete. Writing in Nature, he says the IAAF is advocating a form of experimental medicine. “Unproven interventions are acceptable only to save life, re-establish health or alleviate suffering. The interventions required by the IAAF fall under none of these categories, and turn otherwise healthy individuals into patients.”
It’s a position supported by the World Medical Association (WMA), which published a notice on its website reiterating earlier advice “not to implement IAAF rules on classifying women athletes”. The WMA also wrote to the IAAF saying: “A medical treatment (with a few legal exceptions, which do not apply here) is only justified when there is a medical need.”
WMA chairman Dr Frank Ulrich Montgomery told the ABC’s The Ticket program the sports governing body was heading into dangerous territory.
“We do think it is extremely serious if international sports regulations demand physicians to prescribe medication – hormonally active medication – for athletes in order to reduce normal conditions in their body,” he said. “If physicians do apply these drugs, they do break ethical codes. The basic ethical code of all medical practice is never do harm, and it is doing harm to a perfectly normal body with just a rather high level of testosterone by administering drugs … in order to make them eligible for women’s sport.”
The IAAF responded with a letter from its board of medical experts, stating, “The IAAF strongly disagrees with the WMA reservations about the ethical validity of the IAAF Eligibility Regulations for the female classification.”
The IAAF asked for the letter to be distributed to all WMA members but, so far, the letter is not published on its website.
Athletics officials in Australia did not wish to comment on the situation although questions have been asked about how athletes with DSDs are to be treated and by whom.
The International Olympic Committee is now establishing a working group to look more closely at the IAAF rules with concerns in some quarters that other sports will adopt similar “discriminatory” rules.
Sports psychologist and athlete Joan Steidinger, writing in Salon, says Semenya’s story is a “triple whammy of discrimination”, because she is “female, black and gay”.
Indeed, a story for the ages.
This article was first published in the print edition of The Saturday Paper on May 25, 2019 as "Advantage points".
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