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Caster Semenya of South Africa, the two-time Olympic track champion with a rare genetic condition that significantly elevated her testosterone levels, on Tuesday lost what appeared to be her final appeal to compete at 800 meters, her signature event, at the postponed Tokyo Olympics next summer. Semenya’s natural testosterone levels are far above the standard female range.
The ruling by the Swiss Supreme Court was a victory for World Athletics, track’s governing body, in a highly charged case about biological sex, gender identity and fair play. The organization had passed regulations in 2018 stating that intersex athletes who have a disorder of sexual development and have both X and Y chromosomes, the standard male pattern, would have to lower their testosterone levels to keep competing in women’s events from the quarter mile to the mile, which combine speed and endurance.
World Athletics has acknowledged that its regulations were discriminatory but said they were necessary to preserve a level playing field in women’s events. Intersex athletes with testosterone in the male range, the governing body argued, have an unfair advantage in lean muscle mass, strength and oxygen-carrying capacity. The lowest level in the male testosterone range is four times greater than the highest level in the women’s range, according to the governing body.
In 2019, the Swiss-based Court of Arbitration for Sport, or CAS, ruled 2-1 in favor of the restrictions placed on athletes in some female track events. Semenya then appealed to the Swiss Supreme Court.
In issuing its final ruling on Tuesday, the Swiss Supreme Court said that CAS had “the right to uphold the conditions of participation issued for female athletes with the genetic variant 46 XY DSD in order to guarantee fair competition for certain running disciplines in female athletics.”
The Swiss court also said that Semenya’s “guarantee of human dignity” was not undermined in agreeing that an athlete’s biological characteristics may supersede a person’s gender identity to protect fair competition.
Semenya, 29, identifies as a woman. According to doctors, people with the 46 XY disorder of sexual development have genitalia that are not typically male or female and can be ambiguous.
Semenya has faced intense scrutiny in her sport for more than a decade. She has refused to undergo hormone therapy to comply with the current regulations. She has suggested that she would attempt to run the 200 meters at the Tokyo Olympics, an event that is not governed by the testosterone restrictions.
In a statement on Tuesday, Semenya said, “I am very disappointed by this ruling, but refuse to let World Athletics drug me or stop me from being who I am. Excluding female athletes or endangering our health solely because of our natural abilities puts World Athletics on the wrong side of history.”
Semenya said she would continue to fight for the human rights of female athletes “until we can all run free the way we were born.”
Lawyers for Semenya said she was still considering her legal options. One of her attorneys, Dorothee Schramm, who led Semenya’s appeal, said in a statement, “This decision is a call to action — as a society, we cannot allow a sports federation to override the most fundamental of human rights.”
Semenya’s supporters include the World Medical Association, which has requested that doctors not implement the World Athletics regulations, questioning the ethics and potential harm of requiring athletes to take hormone therapy not based on medical need.
The Office of the United Nations High Commissioner for Human Rights has also called for the regulations to be revoked. Human Rights Watch has called the regulations “stigmatizing, stereotyping and discriminatory,” saying they amount to “policing of women’s bodies on the basis of arbitrary definitions of femininity and racial stereotypes.”
But World Athletics welcomed Tuesday’s ruling. One of its expert witnesses in the Semenya case, Doriane Lambelet Coleman, a Duke law professor and an elite 800-meter runner in the 1980s, said the rulings by CAS and the Swiss Supreme Court were “the right result in law and in policy.”
Both courts recognized that “sex equality in competitive sport is a legitimate goal” and that “separating athletes in competition by biological sex traits is the only way to achieve this goal, given the physical advantages associated with male puberty and testosterone levels in the male range,” Coleman said in a statement.
The Tokyo Olympics, originally scheduled for July to August 2020, were postponed to next July because of the coronavirus pandemic.
The outcome of Semenya’s case has been widely anticipated for a number of reasons, including the separate issue of transgender athletes who have transitioned from male to female and whether they possess residual physical advantages that might be unfair.
It has been expected that, after the Tokyo Games, the International Olympic Committee will adopt the same testosterone limits for transgender athletes that World Athletics has imposed on intersex athletes.
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