Question 1.
When you look at this picture, are you overwhelmed with protective sympathy for the blonde woman (because its so not fair that she has to race against someone so big and strong and um…..fast?)
Question 2.
Do you feel a similar stirring of sympathy for the black woman (because its so not fair that she has to choose between destroying her career or possibly her health or both through no fault of her own and without any conclusive medical/scientific proof that this is a correct, fair or moral judgment or that it will in fact eliminate an, as yet inadequately proven, advantage?)
If your honest answer was:
- Yes
- No
Do you feel any curiosity about your responses? If so please continue, if not please rather don’t.
I am unsettled by the Ms Semenya situation. Deeply unsettled. And this is what unsettles me: people I know (and some who I even like) are upset by unfairness 1 but are unmoved by unfairness 2. As a lawyer this feels illogical to me. As a human being it feels wrong.
The Court of Arbitration for Sport (CAS) made a ruling earlier this month that from 1 November 2019, female athletes competing in the 400m, 800m and 1500m events (under IAFF rules) who record a level of testosterone higher than 5 nanomoles (wtf is a nanomole even?) per 1 liter of blood will be obliged to take medication (synthetic hormones) to reduce their testosterone to an “acceptable” level. The IAAF apparently get to decide about what’s an acceptable amount of testosterone for women to have. If they are unwilling to do so their options are: not to race at all, or to race against male athletes.
Note that the “normal” range for women is 0.12-1.79 nanomoles per liter (nmol/L) whereas it is 7.9-29.4 nmol/L for men. I am assuming that I (average female athlete) have a middle of the range dose of testosterone of about 1.2 nmol/L and the average male athlete has a similar middle range dose of about 19 nmol/L. That’s a big difference. If testosterone provides such a significant advantage, I wonder why I usually beat at least 2/3 of the average male field when I compete? When they have 18 + nmol/L more testosterone than me? I wonder if it could have to do with training hard and consistently, resting well, having a good mental strategy, being disciplined and any number of other things that I don’t imagine have anything to do with testosterone?
Now I have read everything I can find on the subject and chatted to some medical folk and one or two scientists and this is what I have managed to establish: there is currently no actual conclusive scientific or medical proof that having testosterone higher than this random level of 5 nmol/L (or any level at all) does in fact bestow an unacceptable athletic advantage. Really. Hear me out, I’m not trying to argue that is doesn’t provide an advantage (because there isn’t yet any clear medical/scientific proof, remember?) but we can’t say that it does with any certainty either because there isn’t any evidence. Because nobody has carried out adequate or conclusive tests. Yet. Despite the fact that this whole debate has been going on for 10 years.Plenty of time for detailed research.So, remember that whole marvelous rule of natural justice (that we all claim to embrace) about not punishing someone in the absence of any actual conclusive evidence? I can’t imagine why so many (apparently) perfectly nice people (black and white, male and female) are so keen to ignore the rule, crucify MsSemenya’s career and sacrifice her health in the absence of any evidence that her presence is unacceptably unfair to sweet blonde athletes?
Why not for example just agree that no action should be taken until adequate research has been completed? I imagine its because it just doesn’t feel fair to the cute flaxen haired athletes. Why doesn’t it feel fair? Do we know? (Well no, because there is no actual scientific evidence, but I suspect it may have something to do with bias and prejudice and maybe just a teensy bit of stereotyping?). Maybe, just maybe it has something to do with being racist and sexist and homophobic?
Whenever anyone eloquently points out the possible flaws in the whole “testosterone as a clear and unfair advantage debate” the usual response is: “Ja but did you know what no one is telling you about Caster Semenye? She has XY chromosomes!” (In a horrified stage whisper). (Actually pretty much everyone has been telling the entire world this opinion for a very long time although actually we are not privy to her diagnosis and this (XY diagnosis) is apparently only one of 6 conditions that may be true of Ms Semenya’s case.) Assuming she does have XY chromosomes, what does that mean according to graduates of simplified high school biology?Ms Semenya is a man. What does this mean to actual scientists and doctors? Nothing, really.Or certainly nothing conclusive.Another very grey area. (It sucks doesn’t it? It would just be so much easier if everything was neatly black and white.)
Apparently there’s a whole lot more to maleness and femaleness than X or Y chromosomes. In the USA (and probably everywhere else too) about 1 in 20,000 men have no Y chromosome. They have XX instead. In a similar vein, a good number of women have XY instead of XX chromosomes.
For these folk it seems that their chromosomes are not the only relevant factor.It is the total sum of their genetics along with their life and in-utero experiences (physical, mental, social) that makes them who they are. There are (apparently) at least 30 genes that have been found to play important roles in the development of sex in humans. Of these approximately 30 genes, 3 are located on the X chromosome, 1 on the Y chromosome and the rest are on other chromosomes, (1, 2, 3, 4, 7, 8, 9, 10, 11, 12, 17, 19).
This seems to imply(and most experts in this field appear to agree although I’m not suggesting 100% agreement, another grey area of uncertainty) that sex should be considered not purely a result of our chromosomes, but rather, a product of our total genetic makeup, and of the functions of our genes during development.
So here’s the thing and its uncomfortable: I think if we are all perfectly honest, we may be able to admit to ourselves that we have been conditioned to be more at ease with women (especially exceptional women) who are petite and feminine and non-threatening and white. We prefer women (in general, and black women in particular) who are invisible, demure, apologetic, grateful than those who are musclebound or “blitsvinnig”or dazzling or proud powerful Rockstar Amazon Warriors. The latter sort unsettle us. And when I speak of “us” I include even some (black) women. Because we have all been messed up by centuries of prejudice. Don’t we owe it to our ourselves and to our future success as human beings to find the curiosity and the self-awareness and finally the honesty to consider and unpack this and then to (slowly and painfully), attempt to fix it?
If you are not at all in agreement that Ms Semenya has experienced rather a lot of unjust treatment, here are some additional things to think about:
- In a controversial article published in the British Journal of Sports Medicine and apparently relied upon by the IAAF, Drs Bermon and Garnier stated that female athletes with high testosterone had the greatest advantage in the pole vault and hammer throw. These events were, however, not included in the IAAF’s newly created “restricted events” category. Instead, the IAAF decided to focus entirely on track events such as the 400, 400 hurdles, 800 and 1 500 metres when enforcing the rules around lowered testosterone levels. A number of experts (including the world renown Dr Ross Tucker)have argued that the ruling was essentially contradictory as it meant that athletes like Ms Semenya would be allowed to run races at 200m, 3000m and 5000m without hormone suppressors.(It is worth noting that 400, 800 and 1500 meters are Ms Semenya’s chosen distances.She hasn’t competed in 200, 300 or 5000m. Why choose only those events favoured by Caster Semenya to apply this rule?)
- Many people who support Ms Semenya have used the illogical argument that elite sports are always about genetic outliers dominating. Usain Bolt has really long legs and Michael Phelps apparently produces about half the lactic acid of a typical athlete. So why can’t Ms Semenya have really high testosterone?That’s a poor analogy. Sports bodies don’t classify athletes by leg length or lactic acid percentage, but they do classify athletes by sex. If they didn’t, women wouldn’t have a chance to excel at the very top levels of sport as men’s world record are consistently 10-12% better than women’s world records in sports like track and swimming. But if testosterone provides such a massive and unfair advantage, why is there is no testosterone limit for men? Men are never obliged to reduce their testosterone (if its naturally occurring) even if it’s well over 29 nmol/L. Why? Because having loads of testosterone is fabulous and fortunate if you are a man and cannot be unfair to other men. Huh?
- The ruling of the Court of Arbitration for Sport (CAS) in the case of Caster Semenya was based on evidence that was neither “strong nor trustworthy”, according to world renowned sports scientist Ross Tucker. It’s a pity that he is South African because it probably means that his objectivity will be questioned by the uniformed. Someone of his standing would not risk his international professional reputation for a whim of national loyalty. I don’t think. His opinion should be taken very seriously: “I understand that this is such a complex issue that doing the perfect study is impossible. The good research here is unethical and the ethical research is just not good. But, this research was bad”, Dr Tucker was quoted as saying. He went on to say that the evidence of the study used to defend the IAAF case has inherent flaws such as featuring examples of real times that seemingly never happened. Apparently, when Dr Tucker and some of his colleagues saw the data and compared it to the real events they were supposedly based on they questioned whether some of the data was made-up, a typo or simply a mistake.“We have no idea how you could base a decision on evidence that is so untrustworthy”, he apparently said.
- The CAS judgement was not unanimous. The decision was reached on a two-to-one majority in a case that the court acknowledged was “discriminatory”. If CAS themselves acknowledge that their ruling is discriminatory then that fact surely requires that evidence should be inviolable? I am under the impression, as a lawyer, that a particularly stringent duty of care exists in such a case?|
- On 29 April 2018, Professor Steve Cornelius, Sports Law expert and Head of the Department of Private Law in the Faculty of Law of the University of Pretoria, resigned from the IAAF Disciplinary Tribunal in protest against the rule that could result in female athletes being banned from international participation unless they undergo testosterone-reducing treatment. (Lawyers don’t often resign “just sommer” for moral reasons. Just saying).
In his resignation letter to Seb Coe (President of the IAAF), Professor Cornelius stated: “Sadly, I cannot in good conscience continue to associate myself with an organisation which insists on ostracising certain individuals, all of them female, for no reason other than being what they were born to be. The adoption of the new eligibility regulations for female classification is based on the same kind of ideology that has led to some of the worst injustices and atrocities in the history of our planet.”