In the matter of '46 XY DSD' cases: the IAAF is right

In the complex, emotionally charged matter of 46 XY DSD cases: the IAAF is right.

There. I said it.

If you already feel like sending hate mail, roger. But, and for emphasis: the IAAF is right.

Let’s be straight-up: Caster Semenya’s many vocal supporters have sought to focus the story on Semenya alone. That’s not right or fair. There are others similarly situated, including for instance — as was recently acknowledged — the Rio 2016 800-meter runner-up Francine Niyonsaba. So the IAAF is hardly targeting Caster Semenya. 

What seeking to make this matter all about Caster Semenya does, however, is what a great deal if not almost all of the reportage about this matter has done: cast Semenya as the sympathetic if not profoundly empathetic protagonist in a classic narrative, the individual against the institution. 

Caster Semenya at Friday’s Diamond League meet in Doha // Getty Images

Caster Semenya at Friday’s Diamond League meet in Doha // Getty Images

Semenya with Britain’s Lynsey Sharp at the 2017 world championships // Getty Images

Semenya with Britain’s Lynsey Sharp at the 2017 world championships // Getty Images

What’s often missing completely from that storytelling — or buried way down at the bottom, because in today’s overheated social media-driven cauldron of outrage, very few want to speak up — are other voices, those who have their own dreams, too, literally millions of girls and young women around the world, and here is where the IAAF is 100 percent dead-on right to go to court to ask, what about them?

If you, too, dream about winning but when you line up you have no chance, what kind of dream is that? After Friday night’s 800-meter Diamond League season opener in Doha, which Semenya won in 1:54.98, Semenya, the London 2012 and Rio 2016 champion, has now won 30 straight races at that distance.

Look at the podium at the women’s 800 from Rio — it is believed that bronze medalist Margaret Wambui is intersex as well — and ask, again: who can dream to win? Who?

Niyonsaba finished second Friday in Doha. Britain’s Lynsey Sharp, ninth, told the BBC afterward that she had received death threats because of prior comments she had made about Semenya’s “advantage.”

“I’ve known Caster since 2008,” she said. “It’s something I’ve been familiar with over the past 11 years.

“No one benefits from this situation. Of course she doesn’t benefit but it’s not me versus her. It’s not us versus them.

“I’ve had death threats. I’ve had threats against my family and that’s not a position I want to be in. It’s really unfortunate the way it’s played out.

“By no means am I over the moon about this. It’s just been a long 11 years for everyone.”

Let’s be clear about this, too: 

While the IAAF is right, there is no unequivocally, indisputably “right” answer in a case this complicated. This is not a math problem where two plus two makes four. This is law. Therefore — as every first-year law student learns — it necessarily involves a balance of interests. 

Reasonable people can differ. But if you take the overheated emotion out of it — especially the often-unwarranted racial politics and geopolitical overtones — what you’re left with is what the Swiss-based Court of Arbitration for Sport got to: the IAAF is right.

What’s fair? To whom? That’s what this is all about, and it’s not just Caster Semenya.

As CAS made clear in its 2-1 decision this week, this particular case involves not only a “complex collision of scientific, ethical and legal conundrums” but “incompatible, competing rights,” and it is “not possible to give effect to one set of rights without restricting the other.”

Further, this is not — repeat, not — a reflection on Semenya the person. In this regard, having been on-scene at the world championships in Berlin in 2009, when Semenya, then just 18, burst onto the international scene, and after winning but before the rest Semenya was literally held in a box outside the stadium — draw whatever parallels you like — the story has, ever since, been fraught with peril.

For all that, the issue here is elemental, and it’s the one the IAAF pushed for and CAS made plain.

In track and field, there is one category for male athletes and another for female athlete.

That division is binary.


The three-judge CAS panel acknowledged that its decision was “constrained by the accepted, necessary, binary division of athletics,” meaning track and field, “into male events and female events, when there is no such binary division of athletes,” adding, “That binary division has not been challenged.”

That female category, in legal jargon, is what’s called a “protected” class. 

Why? Because men are bigger and stronger. What makes them that way? Testosterone, the hormone that at puberty turns boys into men. It would necessarily be “category defeating” to allow someone who possesses a “testosterone-derived advantage” to compete in women’s events, the IAAF argued, and the majority of the CAS panel agreed.

That a person “is recognized in law as a woman and identifies as a woman” is not determinative.

Why? Because that argument goes to legal status.

This, though, is about biology, and the notion that a person’s body since puberty may have “developed in a different way” and “possess certain physical traits that create such a significant performance advantage that fair competition … is not possible.”

This is crucial: A typical female has XX chromosomes. Caster Semenya has XY chromosomes. As the CAS ruling explains, the IAAF regulations at issue — enacted in April 2018, into force November 1 — are limited to those individuals with what’s called “46 XY DSD,” DSD meaning ‘differences of sex development.” 

XY essentially means intersex. We know Semenya is XY because that’s why there’s a case. That’s — obvious.

Per CAS, athletes with 46 XY DSD have testosterone levels “well into the male range.” 

It’s that simple — and, at the same time, that complex and profound.

Much has been made in a great many of the articles written about the CAS decision that the panel found the IAAF regulations at issue “discriminatory.” 

Of course CAS did, and unanimously. 

This part is straightforward, and here it would help considerably if instead of focusing on the emotional connotation of the word “discriminatory” — which is loaded, obviously — the focus is where it belongs, on the legal analysis. 

As the panel explains in plain English, because the regulations are aimed at a specific subset of the “female/intersex athlete population,” and do not impose any equivalent restrictions on male athletes (duh), they are necessarily discriminatory. 

In the very next paragraph, as the panel goes on to set forth, and this piece has been missing, which is all but journalistic malpractice: 

That the IAAF regs are “discriminatory” is “merely the starting place” because it is “common ground that a rule that imposes different treatment … is valid if it is a necessary, reasonable and proportionate means of attaining a legitimate objective.”

Which, as the ruling spells out, these regulations are — the need here to detail an “objective, fair and effective” means by which to determine who can take part in the protected female category. 

This is why the comparisons to Michael Phelps and his wingspan, or freaky tall basketball players — these fail.

Sports bodies don’t classify people by wingspan or height.

But they do, like the IAAF, classify athletes by male and female. 

It’s not a human rights violation, not in the slightest, to say that Caster Semenya, and others with 46 XY DSD, must now per the IAAF regs lower testosterone levels — via conventional oral contraceptives, as the CAS panel put it straightforwardly — to compete in events from the 400 to the 1500, or change to another distance. 

It’s simply the protection of female sports.

The protection of the dreams of millions of girls and young women all over Planet Earth, literally millions, that they, too, might have a shot.