Sport Law: A New Legal Regime For Female Runners By Morris Odeh

On Wednesday, 1 May 2019, while the rest of the world  was busy celebrating workers’ day and the dignity of labour, the Court of Arbitration for Sport (CAS), the highest legal body in sport, made a decision that set a new regime for female runners in the world.

The issue before CAS was whether female athletes with high naturally occurring testosterone should be allowed to compete in international middle distance races.

In resolving the issue, the Court came to the conclusion that high testosterone in female athletes confers on them significant advantages in size, strength and power from puberty onwards, therefore, the International Association of Athletics Federation (IAAF) is allowed to impose a limit of 5 nanolitres of testosterone per litre of blood (nmol/L) on female runners with intersex conditions that increase naturally occurring testosterone in women’s races between 400 metres and a mile.

John Brewer, a professor of applied sports science , applauded the ruling by stating that “without this ruling we would have been in a position where females with normal levels of testosterone would be at a performance disadvantage compared with those who have higher levels of testosterone.”

This means that the likes of Caster Semenya, the South African 800m Olympic champion (with intersex conditions) and who has not been beaten over 800m since 2015, will have to quit middle distance races or take medication (at health risk) to significantly reduce her testosterone if she wants to run internationally at events between 400m and a mile.

Meanwhile, Advocates of women’s sport have oppose the CAS’ decision on two fronts; first, that biological sex and athletic ability are both too complex for sport institutions or scientists to reduce to measures of testosterone, thus, there is need for more research to be carried out to determine how to ascertain biological sex beyond the levels  of testosterone. Secondly, that the decision is discriminatory and unfair because women with high levels of testosterone are recognized as women outside sport, therefore, they shouldn’t be denied the right to compete in women sporting events.

Besides the above arguments, which I consider valid and cogent, I have three concerns against the CAS’ decision – first, it is not yet absolute that high levels testosterone confers athletic advantage on all female athletes, the 1985 case of Maria Jose Martinez, a Spanish hurdler, is very instructive in this regard. Although she was initially found to have high levels testosterone and on that basis she was rejected by her national team, 3 years later it was discovered that her body was insensitive to the testosterone, and her intersex condition did not confer any athletic advantage on her. Secondly, I take the view that a naturally occurring high levels of testosterone in a female athlete should be categorized as a God-given talent, rather than as an unfair advantage. The Cambridge Dictionary defined a “Talent” as “a special natural ability to something well.” Therefore, why shouldn’t a naturally occurring high level testosterone in a female runner be considered as a “special natural ability”?

The implication of the CAS’ decision is that anybody with special natural ability to run, dance, sing, lift weight, box, jump, fight e.t.c should not be celebrated, rather, they should be condemned for having harmones that confer on them “unfair advantage” in contrast to their peers.

Thirdly, the ruling is discriminatory to the extent that it is not applicable to all  athletes but only to female mid-distance runners with high levels of testosterone. The ruling is also against natural law and good conscience because the  said naturally occurring testosterone is clearly a God-given talent and not self induce. Consequently, Why punish an athlete for what was given to her by nature?

Anyway, the prophecies of the Court  and nothing more pretentious is what the law is, as of today, the law is that the IAAF has the liberty to use the testosterone levels in female athletes to determine who should be allowed to compete in international middle-distance races. In fact, the IAAF has issued the “IAAF Eligibility Regulations for the Female Classification (Athletes with Differences of Sex Development), 2019” which is is set to commence on 8 May, 2019prohibiting Female Runners with high testosterone levels from competing in international mid-distance races.

In the nearest future, I foresee that this test may be extended to long distance races and other sports like football, basketball, long tennis, rugby e.t.c. thereby bringing to an end the era of extraordinary, exceptional and talented female athletes. May that day never come!

Morris Kingsley Odeh, Esq.

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