The Semenya Decision: Full CAS report brief thoughts

Last updated on December 2nd, 2022 at 10:27 pm

Estimated reading time: 15 minutes

So the Court of Arbitration for Sport have released their full decision in the Caster Semenya-IAAF case. You can read all 632 points of it here, and then evaluate the arguments offered by both sides in your own time!

It is, as we all know, an incredibly complex case, made all the more so by how polarizing it is. It cuts to what you believe about elite sport’s place in society, attitudes towards fairness (no matter which direction you argue this from!), and ideas about governance and policy and how it should be achieved.

I’ve said and written a ton on this issue, just in the last few months, so I don’t want to repeat all the same themes, but with the full decision now available, i can share a little more insight into my own experiences at CAS and explain how I think the verdict was reached. So this is a relatively short post based on some tweets I shared yesterday on the verdict, but if you want more detail, perhaps consider the following:

[ribbon toplink=true]The CAS Decision: “Home ground advantage” and a difference in framing”[/ribbon]

I was an expert witness in the case. I came to be an expert witness in the case because together with Prof Erik Boye of Norway, and Prof Roger Pielke I had written an academic criticism of the IAAF’s research in about July/August last year. When I first saw the IAAF research, it was my “watershed” moment. I remember thinking “is that it? This is all you got? This policy is now much weaker than the one before it”. And then when we looked more closely at it, we saw so many problems that it was difficult to avoid the realization that this evidence was fatally flawed. Our criticisms of the erroneous data were profiled by the New York Times in July 2018, and then I got a call from the legal team for Athletics South Africa a few weeks later.

I say that upfront as a disclosure, because it sets up my own paradigm and prioritization in this debate, in the sense that my direct involvement with this case was a function of my appraisal of the evidence of this case. And as I shall explain below, I believe the case comes down to evidence vs principle/theory.

So, as you read the CAS Verdict, you may start to notice a clear separation in arguments. Specifically, the issue is framed differently by the opposing parties.

On one side, you’ll see the IAAF arguing forcefully for biological principles of testosterone & performance. To make this argument, they frame it as an issue of men vs women. In this argument, when you strip away the complexity of social factors, it leaves the “simple” conclusion that males should not compete in women’s sport because of androgenization (by Testosterone). This allows them to motivate their position as one that protects women’s sport.

And to be clear, it’s difficult to reject this principle. Indeed, I’d say it’s impossible – they are solid arguments. These same arguments made for a Transgender female (that is, male who reidentifies and wants to compete in women’s sport) are critical, and I would be 100% behind them.

So if you start this debate by asking “Why does women’s sport exist?”, then you head off in a direction that few people can rebut. And so, quite unsurprisingly, the IAAF’s platform is male vs female, and they work very hard to frame this as a PRINCIPLE based argument, using THEORIES of testosterone’s role in determining male vs female performance differences.

But you also see the other side (Semenya/ASA) arguing that the issue should be framed as “Women with DSD vs women without DSDs”. This in turn compels questions to be asked of the research, the magnitude of advantage. They ask: “Where is the evidence? Can the advantage be quantified? How large is it?”.

This was the mandate set by CAS in 2015, after all – go back and look at the CAS decision in the Dutee Chand case. Look at these words:

In effect, what you see there is the “template” for how Semenya would try to win the case – keep brining it back to evidence, because “the numbers matter”. “Degree of advantage is significant”, as per CAS in 2015. This is where Semenya’s case would be strongest. Show that the DSD Regulation lacks evidence, and thus can’t be viewed as necessary given the risks or harm it may cause.

So just as it is predictable and expected for the IAAF to frame their argument as male vs female, so too it was predictable that Semenya’s side would want to frame it as “women vs women with differences”.

Indeed, way back in January, when all the documents and arguments were submitted ahead of the hearing, and all parties had stated their case, I remember thinking it would come down to which of these – principle or evidence – mattered more to CAS? Would biological theory be given more weight than the lack of evidence & poor evidence? Or would CAS, as in 2015, prioritise data, the numbers, the degree of advantage?

I even wrote an email to some people in which I equated this issue as one of “home ground advantage”. In sport, whoever gets to play at home has an advantage, and in my mind, this case was going to come down to whose framing allowed them to “play at home”? Would CAS give credence to the Male vs Female comparison, even though the evidence in DSDs did NOT support it? Or would CAS give priority to the lack of evidence, despite the numerous real challenges in providing that evidence? The former would massively favour the IAAF, whereas if we “played” in the realm of evidence, then Semenya was clearly stronger (because the IAAF’s evidence was that bad).

In the end, the final decision revealed the answer to this question. The IAAF “played at home”, and managed to make a compelling principled argument, despite an appalling scientific/magnitude-based one.

[ribbon toplink=true]Key arguments from CAS[/ribbon]

In this regard, paragraphs 551 & 552 of the Semenya decision stand out. CAS saw, recognised & accepted that good regulatory policy needs good science, & that this was “laudable”, but then say it’s not their place to assess it. I’m not sure how you can divorce the outcome (the Regulations, specific as they are) from the process (the research).

I think that if the Regulations are meant to be an evidence-based document, which they absolutely are – that’s why only the 400m to 1500m are covered by them – and they were produced DIRECTLY as a result of the Bermon study, then it is absolutely crucial that the process by which the evidence is gathered, analysed and applied used is prioritized.

So for CAS to declare “It’s not our problem to evaluate the process by which the rule was created” is quite extraordinary. They instead want to confine their role to deciding whether the Regulations are necessary, reasonable and proportionate. Can you see that they have thus CHOSEN to limit their decision to PRINCIPLE AND THEORY only? The evidence doesn’t matter – it’s important, yes, but it’s not our problem.

[ribbon toplink=true]Tension between theory and evidence, and the inevitable conflation of DSDs and Trans MTF[/ribbon]

This was always the ‘tension’ for me. The IAAF’s theoretical case (Points 285 to 292 in particular, for those who want to understand it) was strongly made, well argued. I’m a supporter of the principle. But the evidence & process supporting the regulations was, and I’m being kind, empty & utterly inadequate to justify the harm it introduces to people.

This is why the IAAF had to downplay the evidence & amplify the theory. It is noticeable in the verdict how little that Bermon study is cited in support of the Regulation. Instead, the IAAF relies heavily on a theoretical review paper by another expert witness, David Handelsman, to make their case. Bermon is relegated to the periphery, out of sight and scrutiny, because that’s where the IAAF were weakest.

On the other hand, Semenya/ASA played up the evidence & avoided the theory. Rather talk more Bermon, less Handelsman! So the verdict ends up looking like two monologues, rather than a debate where A & B directly address one another. It was, actually, a frustrating process. Even in the group debate sessions (the so-called Hot Tubs), we often didn’t reach consensus because two separate agendas were being debated.

[ribbon toplink=true]Transgender concerns and DSDs in the crossfire[/ribbon]

Another major factor that I believe drove the verdict (compared to 2015 Chand) is best summed up in these points, highlighting how the growing concern around transgender females (MTF, so this is men who re-identify and then compete in women’s sport) may have impacted the decision.

What you’re reading above is really crucial, in my opinion, to understand how the “wind direction changed” between 2015’s Chand decision and now. This witness, Lambelet Coleman, was asked whether a victory for Semenya in this case, the DSD one, would have implications for the transgender regulations. She said, without hestitation, “yes”. So too did a number of other witnesses in Lausanne, and I remember sitting in that room thinking “this is not a good sign”.

Why? Because the conflation of DSDs with Transgender MTF is a sign that the thinking has moved across to Men vs Women, where the IAAF “plays at home”, rather than women with differences. The reason the two Regulations overlap, by the way, is that both DSD Regulation and Transgender MTF Regulation require that the athlete reduce their testosterone levels in order to be eligible to compete. So when the question kept getting asked, and when the IAAF kept framing it as an issue of “males competing in women’s sport”, it was becoming clear which way the wind was blowing – you will not find any such language in the Dutee Chand case of 2015.

Now, this “shift” is in part because the IAAF were so much better at making the case this time around. But I think it was undoubtedly driven by a growing unease that the transgender male to female athlete is going to be a really big issue for sport in the coming years. And so there was a natural, albeit false conflation of the two concepts. It happened outside the courtroom even more, in the leadup to the case. Sometimes out of ignorance, sometimes malice, people were quite happy to say DSDs and Trans females in the same sentence, creating this perception of a ‘tsunami’ of men coming to destroy women’s sport.

But in the courtroom, what this did was to allow the IAAF to really go hard on their framing, as I described above, that this was an issue of males vs females. This, unfortunately, is where the DSD case also gets especially polarizing, because the next point you reach is one where you label Semenya as a male who identifies as female.

And if you read the verdict, you see this often. For example, here are 3 paragraphs where DSD is juxtaposed with “biologically male” or “transgender male-to-female” athletes in the same sentence – the messaging is clear. It’s about “men vs women”, which, as I said above, is how the IAAF needed to frame it.

It’s not surprising then, that we’ve ended up is a situation where the IAAF has a policy for DSDs that is basically identical to its policy for transgender MTF athletes. It now a DSD woman the same way as it treats someone who is born, raised and lives as a man, then makes a choice to change and compete as a woman (despite protestations otherwise). It is no longer about the Testosterone, but the XY chromosomes. It is now sex testing, not testosterone regulation.

As mentioned, the argument they made in this regard was expected. I’d have done it too. Why? Because any arguments they tried with evidence to actually quantify the advantage would collapse instantly. In fact, their evidence was so ridiculous that they actually show that in 17 out of 22 events, testosterone makes no difference to performance. They prove their own model wrong – I called this “the testosterone paradox” at the trial. Testosterone does not discriminate – in practice, or in theory. In their own model. Yet the policy does, to certain events only, which creates this weird internal inconsistency that should have undermined this policy, if not the theory.

But, the IAAF realized the evidence weakness, so they sidestepped it, and instead drove the theoretical point, framing DSDs as males (Handelsman vs Bermon, in other words). And I must say they made this argument very well, much better than in 2015. In particular, their written arguments were daunting and solid.

What this ultimately enabled them to do was argue that #semenya & other DSD athletes are males. Just ones who “are not as good as the best males”. Those are not my words – here’s Paragraph 289:

This, in turn, shifts the debate towards male vs female physiology, and it’s really hard to dispute that, right? There is a 10-12% difference, undisputed. So ultimately, the IAAF “played at home”, and the requirement to quantify the magnitude of advantage that CAS had prioritised in the Chand case of 2015 no longer applied. Instead, theory & principle won, and all those things like the poor evidence, the medical harm etc fell away.

The quality of evidence could thus be acknowledged as poor (which CAS did do. They just didn’t weight it as that crucial). Risk of harm could be recognised. The efficacy of the drugs could be questioned. But stacked up against a (convincing) argument for the protection of women’s sport from DSDs (& trans MTF, by conflation), it fell short.

[ribbon toplink=true]Changes from Chand and the great unknowns where evidence should have mattered[/ribbon]

And that’s that. It’s 632 points, so I can’t possibly do it justice, but I just wanted to share with you my thoughts on how the decision was reached. The IAAF made a tremendously strong theoretical case – the circumstances around Semenya allowed it, compared to Dutee Chand, and obviously they’d had a lot of practice and a few years to fix up the gaps.

They did in 2019 what they may have tried in 2015, but then again, the policy in 2019 was different – it’s no longer about testosterone, it’s about XY, and then testosterone is, to borrow from Roger Pielke’s argument, the method to “fix people” with the Y chromosome.

It all leaves me feeling really uneasy. A DSD is not a Trans MTF athlete. By the very nature of having a DSD, they do not develop typically as males. So take the case of 5-ARD, which the CAS verdict makes clear is a big issue here. The IAAF argue that they are “biologically indistinguishable…in all relevant aspects”.

What they mean by this is that with the exception of the external genitalia, which may be ambiguous or female, leading to the identification of a person as female at birth, a person with 5-ARD is biologically male and should thus compete as a male for the purposes of sport.

That’s the theory. But my position is that if you’re going to impose on someone a new biological reality at the age of say 18, because they happen to be a fast female runner, then you had better be really, really sure that it’s necessary. And so until you can establish that having 5-ARD does not affect any other physiology that may impact on sport, I can’t see how you can move so swiftly towards labeling someone male (even if you do say you accept their gender identity), and then prescribing possibly harmful drugs to them? That’s why more research into 5-ARD is required – does the absence of DHT affect any physiology that may have sporting implications? If the answer is “we don’t know” or “maybe”, then you absolutely have to hit pause and assess what those implications are before you continue.

The same is true, even more emphatically, for PAIS (Partial Androgen Insensitivity Syndrome). This occurs is a person who cannot, by definition, use testosterone. So on what basis is that person being treated as having performance advantages that are the same as biological male who does not have PAIS? The fact that the DSD Regulations names and treats five conditions without discerning that they may not all have performance implications is a problem to me.

This is why the “numbers matter” – the policy is not benign. It’s potentially catastrophic and damaging. The most powerful testimony of the whole case came from Drs Payoshni Mitra and Lih-Mei Liao, who spoke of the challenges in dealing with DSD cases in a clinical setting, let alone the sporting one. DSD women are different from trans MTF in many respects, past, present and future, and I’m not comfortable with a Regulation that treats them equally, using medical protocols that are not known to be safe, and not chosen by the athlete.

Anyway, that’s that for now. The most complex issue in sport isn’t going away, so perhaps the appeal process will bring it back into view.

Ross

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