What do Oral Contraceptives have to do with Human Rights Abuses in Sport?: Fact-Making in Caster Semenya v IAAF

In 2018 South African Olympic runner Caster Semenya challenged so-called sex testing regulations in the Court of Arbitration for Sport (CAS) arguing they constituted sex/gender discrimination. Under these regulations, women must subject themselves to medically unnecessary interventions to reduce their natural testosterone levels in order to compete, a requirement deeply entangled with normative ideas about sex/gender. In a controversial and widely publicized split decision, the CAS panel found the regulations to be discriminatory, but the majority found that discrimination to be justified. Despite further appeals, including at the Swiss Federal Court (where Semenya lost), and the European Court of Human Rights (where Semenya won), the CAS ruling still stands and thus so too do the regulations. Having accepted the deeply contested evidence on the relationship between testosterone and athleticism, the panel’s decision hinged on the proportionality analysis. While the majority of the panel accepted the regulations as “reasonable and proportionate,” they also expressed “grave concerns” about their practical implementation, which was a reference to how women might lower their testosterone levels to comply with the regulations. Despite myriad ways to lower testosterone (ranging from oral contraceptives to surgery), the panel limited their analysis to the use of oral contraceptives (OC) alone arguing the other interventions would require “a different analysis of proportionality.” In so doing, their analysis hinged on three assumptions: that women athletes will only lower their testosterone with OC; that OC can lower testosterone below the threshold and keep it there; and that OC have minimal side effects. Not only is this a deeply selective reading of the evidence, but they evince errors of logic. Court cases are knowledge-making enterprises that produce and certify facts. This paper show how these facts were created—drawing on dominant logics of expertise and the reification and legitimization of common sense—and ethical and human rights concerns that follow. In 2023 World Athletics issued yet more restrictive regulations than those challenged by Semenya that further, and seriously, undermine the panel’s analysis.