With Tokyo looming large, the debate about DSD-athletes attains a new relevance

Last update: 13/07/2021

For the second Olympics in a row there is a lot of controversy about athletes with Differences of Sexual Development (DSD-athletes), fairness in female sport and the testosterone regulations. Five years ago when we were heading into the Rio Olympics, the debate centered on the female athletes who would eventually stand on the podium after the women’s 800-metre final: Caster Semenya, Francine Niyonsaba and Margaret Wambui.

This time around the discourse features two Namibian teenagers, who it was reported a few days ago are no longer eligible to compete in the 400 metres.

On June 30 Christine Mboma obliterated a talented field during the “Irena Szewinska Memorial” in Bydgoszcz, Poland. She won the race by almost three and a half seconds. Her time of 48.54 was the world-leading time in 2021 and the seventh-fastest by a woman ever. The time also broke an almost 30-year-old Under-20s world record, by nearly a second. The former East German athlete, Grit Breuer, had run 49.42 while winning silver for unified Germany during the 1991 Tokyo World Championships.

Beatrice Masilingi recently broke the Namibian national record when she finished third in the 200 in the Stockholm Diamond League meeting on July 4. She set a time of 22.65 while running into a slight headwind and has run the 400 quicker than 50 seconds on several occasions this season.

Former athletes, track fans and experts have a hard time understanding why the two Namibian women cannot compete in the 400, yet are allowed to compete in the 200.

Vebjørn Rodal, the 800-metre gold medalist from the Atlanta 1996 games, finds the situation bizarre. He cannot understand the logic, as to him it seems obvious that elevated levels of testosterone is an advantage in all disciplines of athletics. Yet the testosterone rules only cover running events between 400 metres and an English mile, and is the reason why the Namibian women are allowed to take part in the 200.

Interestingly this somewhat bizarre situation, that the DSD-athletes would be allowed to compete in the 200, but not the 400, is precisely what World Athletics was seeking in the CAS-arbitration of 2019. To get the court to approve these peculiar regulations, WA, used experts working for the federation to put together private data in studies which they supplied to CAS as evidence. These studies and experts have received a lot of criticism after the arbitration and many do not think these studies fit for purpose.

Øyvind Sandbakk, a sports research professor at the Norwegian University of Science and Technology in Trondheim, disagrees with the current regulations. He has stated that the current rules undermine the integrity of the sport. The sex difference in performance, as well as the main biological factors separating men’s and women’s performances, are similar across all Olympic running disciplines, and performance differences are even larger in jumping and throwing events. Thus, using basic understanding of physiology would have been a better and fairer way to define the rule than so-called statistical proof. Even if using testosterone levels is not perfect, it is still the best available option. The alternative is to allow DSD-athletes to compete, which would not be fair to 99% of female athletes. He also thinks World Athletics (Formerly IAAF) has not done a good enough job with this. Although this is a very complex issue with many different perspectives, it should at least have been possible to make the case that the same regulations should apply for all the disciplines.

As the current rule does not make much sense to many people, it is interesting to look back and investigate what led to the rules being as they are today.   

Five years ago the eventual winner of the Rio 800, Caster Semenya, was known to be an intersex woman with XY chromosomes and elevated testosterone levels, and it was widely assumed that both Niyonsaba (who is qualified to run the 5000 in Tokyo) and Wambui were females with Differences of Sexual Development (DSD). This was confirmed in 2019.

The controversy was initially sparked during the 2009 Berlin World Championships. Only a few hours before the final of the women’s 800, a leak by World Athletics led some news outlets to report that sex verification tests would be required for Semenya.

Most people, regardless of their views on whether or not DSD-athletes should be competing in the female classification, agree that several news outlets and reporters behaved appallingly and that no human being – particularly not a teenager – should have been forced to respond to such private questions just after winning a World Championship gold.

Some of the comments at the time almost defy belief.

Pierre Weiss, the general secretary of the IAAF, indicated that:

“She is a woman, but maybe not 100%”

Elisa Cusma who competed in the final, finishing sixth, took it even further and told reporters:

“She is a man”

The results of Semenya’s sex test were never published officially, but some information leaked and was discussed widely in the press.

It is obvious that the matter should have been handled with substantially more sensitivity both by World Athletics and the international press.

In July 2010 Semenya was cleared to compete in women’s competition and she went on to have a great deal of success.

In 2011 the IAAF put in place a new policy intended to ensure that females whose testosterone levels crossed into the male range could not compete with other females. These regulations placed the burden of proof on the DSD-athletes. To be allowed to compete without taking medication, they had to prove that their elevated testosterone levels did not confer any competitive advantage.

Even with the new rules in place which required Semenya to take hormone-suppressing medication, she was successful as a middle-distance runner. She finished second behind Mariya Savinova in the 800 at both the 2011 World Championships in Daegu, South Korea, and in the 2012 London Olympics. As Savinova was subsequently found guilty of doping, using the anabolic steroid Oxandrolone, Semenya’s silvers were eventually upgraded to gold medals.

IAAF’s policy on hyperandrogenism was suspended by CAS (Court of Arbitration for Sport) in July 2015. The ruling in the case between the Indian sprinter Dutee Chand and AFI (Athletics Federation of India) concluded that there was a lack of evidence that endogenous testosterone increased female performance in sports and gave the IAAF two years to come up with the evidence.

Chand’s legal team and medical experts had argued that the body responds differently to endogenous (made in the body) and exogenous (originating outside of the body) testosterone, and that the regulations were discriminatory and not proportional.

According to the CAS ruling, World Athletic’s experts had failed to prove that high endogenous testosterone levels confer a significant competitive advantage.

Experts overwhelmingly agree that a high level of endogenous testosterone has the potential to greatly enhance performance. Even so, not all DSD-athletes respond to the elevated levels of testosterone in their systems the same way. There are several reasons why DSD-athletes can have elevated levels of testosterone and most experts agree that not all of them provide an advantage.

This partly depends on the level of androgen sensitivity. Women with partial androgen sensitivity tend to have some fraction of functioning testosterone receptors and some fraction of non-functioning receptors. These athletes really present a non-binary spectrum. This fact complicates the issue greatly. According to CAS a lack of scientific data made it difficult to draw firm conclusions, which was detrimental to World Athletics as they had the burden of proof.

The fact that World Athletics carried the burden of proof makes sense, as CAS found the regulations to be discriminatory. It was on World Athletics to prove that this discrimination was proportional and justified. Even so, it is noteworthy that it normally works the other way around. In most other realms – but not for gender and sex – it is up to the athlete to prove that they belong in a certain classification. A junior athlete will have to prove that he/she is eligible to compete in a certain age group. A weightlifter, boxer or wrestler has to prove that she/he meets the weight requirements of the division. An athlete will have to prove to the relevant federation that he/she is a citizen of a country to be eligible for selection to represent that federation.

The question currently being asked is why should these women be barred from competing in the women’s classification? If the question was asked the other way around, namely why should athletes with XY chromosomes and elevated levels of testosterone be allowed to compete in the female classification, many would arrive at a different answer.

It is widely assumed that the XY sex-determination system that is often used to classify humans is the end of the line, and that anyone with a Y chromosome should be classified as male. However the fact that it is entirely possible to have a Y chromosome and still be phenotypically female muddies the waters.

Biological sex appears to be a non-binary spectrum. Even so, it clearly is a bimodal spectrum. More than 99 percent of all humans can easily and clearly be defined as biological female or male.

I read a good example in a thread on a forum I follow closely, as I am a fan of the sport. Some of this article has been inspired by contributors on that forum. The example went:

“It’s like a football field where one endzone is male, the other endzone is female, 10,000 people are gathered in each endzone while two dozen people are scattered on different yard lines throughout the field.”

The reality is that physiology is more complicated than simple testosterone levels. Some of it does not lend itself easily to measurements, and some of it is well understood yet hard to prove. Even the experts do not fully understand other aspects.

No matter what, the consequences of CAS suspending the hyperandrogenism regulations in 2015 quickly became apparent. The women’s 800-metre race was an event utterly dominated by athletes suspected of having their performances boosted by naturally produced high levels of male hormones. Every gold medal and eight of the twelve medals at the next four global championships (indoors and outdoors) were won by competitors belonging to this category.

Ajee Wilson, who managed to win a bronze in London, was the sole non-DSD athlete to medal in the 800 at a global outdoor championship until the new rules were put in place.

In April 2018 IAAF announced new regulations that required DSD-athletes with testosterone levels in excess of 5nmol/L and androgen sensitivity to take medication to lower their testosterone levels to be allowed to compete in the female classification in running events between 400 metres and an English mile. The new regulations took effect in May 2018. The next month Semenya made it clear that she would mount a legal challenge at CAS against the new regulations. She accused World Athletics of using her as a human guinea pig and stated that the medication she had been taking between 2010 and 2015 had caused her abdominal pain and made her feel constantly sick. 

Her challenge divided the experts. Some argued against the rules and made it clear that sex is not defined by a single parameter like testosterone. Others argued in favour, making the obvious point that women’s sport requires certain biological traits.

Heading into the arbitration several pundits asked why a biological driver like endogenous testosterone levels should be treated differently from a physical driver, like the height of a basketball player. After all, elite sports are full of outliers. What is the justification for why these young women, should be treated differently from other athletes, who in many cases are also some sort of physical, biological or psychological outliers?

However, being tall can be an advantage across many sports, like basketball, tennis, rowing, American football and volleyball, but it is a disadvantage for other sports. Being short will in most cases give you a better strength to weight ratio, faster rotational capacity, better agility, better balance and a lower centre of gravity. Being shorter is actually considered an advantage in several sports like horse racing, artistic gymnastics and shooting.

With male hormones in the female classification it is a different story. You would be hard pressed to find any sport where having less of it would provide you with an advantage. This means that the comparison of physical traits, like the advantage of height in basketball, to having more male hormones in female sports is hardly a fair comparison.

Yet subjecting perfectly healthy young women to hormone treatment in order to curtail their testosterone levels is not a benign intervention. Furthermore it is very harsh to tell an athlete who identifies as a woman, was born as a woman, reared as a woman and who believes she should compete with other women, that she is only allowed to compete against men.

That there seems to be no way of adroitly dividing the biological parameters of gender into only two categories complicates both the task of sport federations in their attempts to provide a level playing field, and of arbitrators in their bid to arrive at a fair ruling.

Sport is currently broken into two distinct categories: men’s events and women’s events. This is far from ideal. To safeguard the rights of all, it might make sense to add a third category. This is something that has been suggested by Margaret Wambui. The problem is that such a classification is not likely to be financially viable and everyone knows that much of what happens in the world revolves around money. As this is the case it is unlikely that a third category will be introduced in the foreseeable future.

Lord Coe, the president of World Athletics, made his thoughts known heading into the proceedings:

“I think it is clear that this is one of the toughest subjects the Council and I have been discussing,” he said.

“This is about our responsibility as a sports international federation to ensure, in simple terms, a level playing field.”

“It is our sport and it is up to us to decide the rules and the regulations.”

“We draw the lines at two classifications for our competitions, men’s events and women’s events.”

“This means we need to be clear about competition criteria for those two categories.”

CAS rejected the challenge to the regulations in May 2019, which meant that the new rules came into effect.

Semenya’s legal team appealed to the Federal Court of Switzerland, who provisionally suspended the regulations in June 2019 but reversed the decision the following month. This barred Semenya from competing in her favourite events during the Doha 2019 World Championships. The matter is still not completely resolved as Semenya has lodged an appeal with the European Court of Human Rights.

For a simple track fan like myself, it is hard to understand why DSD-athletes, who often have testosterone levels similar to those of men, are allowed to compete in the female classification in most athletics disciplines. It does not seem like a level playing field, and in the longer term it feels like a potential death threat to female sport as we know it. Many experts indicate that the competitive advantages for such athletes are, in some cases, likely to be enormous.

If hyperandrogenic athletes are allowed to dominate certain disciplines, is it not likely that this will have an impact on the recruitment of non-hyperandrogenic female athletes for these disciplines? What would you do as a woman with normal levels of male hormones, knowing that you will probably have to compete against athletes who might have a significant advantage due to having testosterone producing internal testes? It could deprive many potential athletes of the motivation needed to make it at the top level of professional sports. It is safe to assume that not having regulations in place for all disciplines has potential to curtail recruitment.

The reality is that it is not only the rights of the DSD-athletes that are at stake. The rights of 99% of all women who have testosterone levels of less than 33 percent of the old IAAF threshold also need to be considered.

I have sympathy for Poland’s Joanna Jozwik, who finished fifth in the Rio 800 metre and claimed after the final that she felt like a silver medalist. I can understand the frustration expressed, in the post-race interviews, by Lynsey Sharp, who finished sixth. However, I can also easily empathise with any woman barred from competing against other women unless they take substantial amounts of medications that might be bad for their long-term health.

I would happily jump on the bandwagon and criticise World Athletics for doing a poor job, and failing to ensure the regulations are enforced for all disciplines. However, this is a complex issue with huge ramifications both for DSD-athletes and female sport.

The reality is that I have yet to discuss this matter with anyone who has indicated that they truly believe that DSD-athletes do not have any advantage. Still, I think it is easy to underestimate the task at hand for World Athletics.

It is not as if World Athletics does not want the rules to apply to all of their disciplines. The regulations they made in 2011 did apply to all the disciplines. It was only after losing in CAS in 2015, mostly due to what many has described as a scientific vacuum making it difficult for World Athletics to prove their case, that World Athletics left the principle of employing the same testosterone regulations for all disciplines.

After CAS ruled in 2015 that World Athletics had failed to prove that elevated levels of endogenous testosterone equals a significant advantage, it seems that World Athletics decided to come at the problem from a different angle. When scientific proof had failed, they employed statistical proof. During the 2019 CAS arbitration, the athletics federation presented performance metadata and testing records from world class international competitions. These data were supposed to be not personally identifiable. As established DSD-athletes at the time were very successful in running events ranging from 400 metres to an English mile, these were the events it was easiest for World Athletics to make their case for.

It was not hard to foresee that Semenya would press charges. That the new regulations were expected to end in CAS-arbitration, is probably the reason why the regulations are targeting only a narrow range of running events. World Athletics tailored the regulations to their proof. The current regulations are likely only a stepping stone and, at some point in the future, sweeping rules covering all athletics events will again be in place, as was the case between 2011 and 2015.

As an avid athletics fan I strongly dislike the current rules. In my opinion they are woefully inadequate to safeguard the female classification. I also strongly dislike the rules employed for some of the technical events in the Diamond League. I find it disgraceful that only the sixth and final effort counts toward the placing of the top three athletes in most of the throwing and jumping events. For me it makes a debacle of a sport I love. However, while I blame World Athletics for the rules currently employed in most technical events in the Diamond League, I cannot as easily blame them for the testosterone rules. I think a lot of people underestimate the task facing World Athletics regarding DSD-athletes.

I am not knowledgeable about legal matters or human physiology, but there are some indications that the matter is not as straightforward as some want to make it. If it really was easy to make the case that the testosterone-regulations should cover all events, using scientific evidence, I suspect that World Athletics would have already tried that again by now.

If you read between the lines it should be clear that they are far from comfortable with the current regulations. Furthermore, if the matter really is so straightforward, is it not strange that renowned experts like Ross Tucker were part of Semenya’s team of experts during the CAS arbitration?

Furthermore, the CAS-ruling of 2019 was not unanimous. Only two of the three arbitrators sided with World Athletics, one arbitrator dissented.

The sports scientist and pro coach, Steve Magness, made a good point when the 2019 CAS ruling was made official, commenting:

 “Sport is being forced to draw a clear line when the reality is there is no easy delineation, it’s a blurry one… It’s possible to feel empathetic towards Semenya and those with DSD while still wanting some sort of dividing line along sex.”

It seems to me that World Athletics did a poor job with the statistical evidence. It has been categorized as neither “strong nor trustworthy”. It seems some of the result-data in the proof actually never took place.

In a paper, published in February 2019, by Roger Pielke Jr., Ross Tucker and Erik Boye, the authors identified significant flaws in the data provided to CAS by World Athletics. Below I quote from page 21 and 22 of this paper:

“We have identified three types of anomalies/errors, in addition to the inclusion of times (for several events) for athletes who have been disqualified by IAAF for doping. These are:

•          Duplicated athletes More than one time is included for an individual. In each of these instances, more than one time from the 2011 and 2013 World Championships is included for the same athlete.

•          Duplicated times The same time is repeated once or more for an individual athlete, which is clearly a data error.

•          Phantom times No athlete could be found with the reported time for the event.

Problematic data make up between 17 and 33% of the values used in the BG17 analysis for these four events. Given the pervasiveness of these errors, we consider it likely that similar problems might be found in the data for the other 17 women’s events and 22 men’s events, and perhaps also in the anonymous medical data, which are the basis for the study’s main conclusions regarding the performance effects of elevated testosterone levels. Such pervasive errors in the four regulated events for which we carefully recreated data call into question the fidelity of the entire analysis.”

In their paper, Pielke Jr., Tucker and Boye goes on to say that World Athletics set itself up for problems by using in-house researchers, which creates a perception of a conflict of interest. This is compounded by their unwillingness to share data and the fact that the small amount of data which has been shared was found to contain numerous errors. Mistakes happen, but when mistakes go uncorrected, it is no longer science but something else.

Based on the above it is hard to blame people who reason that the science the 2019 CAS ruling is based on is shoddy.

Even so, the fact that World Athletics did show that DSD-athletes had a vastly disproportionate presence, in the female classification, in elite events and an even more disproportionate presence on the podiums of global championships, clearly indicates that this group does have advantages over other female athletes. Is it unreasonable to think that this fact by itself should be enough to shift the burden of proof back to the DSD-athletes? That members of this group should have to prove, on an individual basis, that they do not have any advantage? That a DSD-athlete would be barred from competing in the female classification, unless she had successfully proven that she does not have an advantage?

After a brief Twitter-discussion, of the first version of this article, with professor Roger Pielke Jr. He brought the 2020 CAS-ruling, Leeper Vs World Athletics, to my attention. In that matter the panel found that the World Athletics rules which required the disabled athletes to prove that they do not possess a competitive advantage to be an unlawful and discriminatory violation. Even if the verdict did not clear Leeper to compete against abled body athletes, it still makes it unlikely that the court would find similar rules targeting DSD-athletes acceptable.

I think Ross Tucker summed it up well when he said:

“This is easily the most complex issue sport has to deal with, perhaps ever. Where it gets complex is there is good biological theory and concept for why you would want to do something like this but there is no good evidence for why you should do it for this group of people.”

Personally, I think it a safe bet that good evidence will arrive in the future. Until it does, we will just have to live with the current rules. I really enjoy watching athletes like Semenya, Niyonsaba, Wambui, Masilingi, Mboma, Seyni and Mupopo run. Even so, I am happy that Christine Mboma is not the main favourite for the women’s 400 and that Athing Mu and not Caster Semenya is the favourite for the women’s 800 in Tokyo.