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Caster Semenya, a South-African woman, ran and won the women’s 800-metre race at the 2016 Rio Olympics on Saturday night. Semenya has hyperandrogenism, a condition that causes her body to produce more testosterone than the average woman. Controversy around Semenya dates back to 2009 when she was forced to undergo blood and chromosome tests and a gynecological exam to prove that she is a woman. Many have argued that her high testosterone levels give her an unfair athletic advantage and she should either take medication to bring her testosterone levels in line with those of average women or be barred from competing.

This controversy brings to light one of society’s most persistent and destructive myths — that sex is a binary concept and our deeply entrenched view of the two genders and their respective roles is to be upheld in all areas from domestic tasks to sporting competitions. Athletes like Semenya are important because her participation raises the arbitrary and exclusive nature of this falsehood and the question of what society is going to do about it on an international and high‑profile stage.

The rules surrounding intersex and transgender athletes

In April 2011, the International Association of Athletic Federations (the IAAF) enacted a regulation setting out rules for the participation of female athletes with hyperandrogenism in international sporting events, including the Olympics (the Regulation). The Regulation empowered IAAF officials to demand that any woman with hyperandrogenism or whom IAAF officials had “reasonable grounds to believe” had the condition be subjected to diagnostic medical tests. If a female athlete had testosterone levels at or above the average male range she was not eligible to compete unless she could lower them with drugs or prove she had an androgen resistance that meant her higher testosterone levels did not confer any competitive advantage.

In July 2014, Dutee Chand, an Indian woman sprinter, was barred from the World Junior Championships by the IAAF on the basis of the Regulation. Chand appealed that decision to the Court of Arbitration for Sport (CAS), the body that settles disputes between athletes and international sport federations. The CAS overturned the decision and suspended the Regulation. This decision is what paved the way for Semenya to compete in the 2016 Olympics.

In August 2016, the IAAF signalled its intention to appeal the decision and the CAS has invited the regulator to return to the court and present its case again once it has gathered more evidence to support its position. If it is able to do so in the next two years, the CAS will lift its suspension. The Regulation may be on its way back in.

Is it legal?

The Regulation discriminates by imposing different treatment on athletes on the basis of their sex. In Canada, each province has its own human rights law and while they are all slightly different, they all have the same thrust: they protect people against discrimination by service providers (a broad term that encompasses people and organizations that provide a benefit to the public or a subset of the public such as restaurants, schools, police forces and regulatory bodies) on the basis of several grounds including sex and gender and, in some cases, gender identity.

If the IAFF were covered by legislation in Canada, as a service provider*, it would be prohibited from discriminating against the athletes it oversees on the basis of sex unless it could establish that the ban on women with hyperandrogenism was a bona fide or necessary requirement to properly carry out the function of regulating athletics, the essence of which appears to be creating a level playing field for all female athletes in their respective sports.

However, as the Supreme Court of Canada held in a leading case on discrimination, a standard cannot be bona fide, and is therefore discriminatory, if it is not reasonably necessary to the task at hand. In that case, a requirement that firefighters run 2.5 kilometres in less than 11 minutes was held to be discriminatory on the basis of sex because while female firefighters were differentially unable to meet the standard, meeting the standard was not necessary to be a competent firefighter.

Would the IAAF be able to prove that excluding women with hyperandrogenism is necessary to create a level playing field for all female athletes? In the Chand appeal, the CAS held that there was inadequate scientific proof to establish that more testosterone necessarily led to better athletic performance. There are numerous variables that contribute to a runner’s success, from muscle mass to lung capacity to leg length, only some of which are affected by testosterone. Indeed, Chand, hyperandrogenism and all, did not make it through the preliminary heats in the 2016 Olympics.

Has the IAAF chosen the hyperandrogenism test because testosterone levels are a reliable predictor of athletic performance, or has it chosen it because athletes like Semenya “look like men” and the knee‑jerk reaction is to assume that a woman who does not conform to societal expectations with respect to appearance is somehow wrong or unnatural? Given the absence of real proof that testosterone necessarily makes one a better athlete, the IAAF would have a hard time proving that the testing is a bona fide requirement to properly regulate women’s athletics.

While South Africans have shown an outpouring of support for Semenya, her fellow athletes at the 2016 Olympics have resorted to undermining her accomplishments with racist comments that perpetuate the belief that a woman who looks like Caster could not be a woman like them. In 2009, when the controversy around Semenya first came to light, the secretary of the IAAF publicly stated Semenya “is a woman but maybe not 100 per cent.” The International Olympic Committee has yet to speak out against or sanction this appalling behaviour. Once again, the rights of the women who do not conform to binary understandings of sex and gender are deemed less worthy of protection than others. Hardly the unity, respect for diversity, and will for change that the Rio Olympics trumpeted as its manifesto.

*The Ontario Human Rights Tribunal, the only provincial tribunal to have considered the issue, recently ruled that the cycling equivalent to the IAAF, the Union Cycliste International, was a service provider within the meaning of the Ontario Human Rights Code.

Iler Campbell LLP is a law firm serving co-ops, not-for-profits, charities and socially-minded small business and individuals in Ontario.

Pro Bono provides legal information designed to educate and entertain readers. But legal information is not the same as legal advice — the application of law to an individual’s specific circumstances. While efforts are made to ensure the legal information provided through these columns is useful, we strongly recommend you consult a lawyer for assistance with your particular situation to obtain accurate advice.

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Photo: Citizen59/flickr

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Pro Bono

Pro Bono is a monthly column written by lawyers and legal experts at Iler Campbell LLP that explores the murky legal waters activists regularly confront in doing their work.

Katie Douglas

Katie Douglas

Katie is a lawyer with Iler Campbell LLP where she advises not-for-profits corporate governance and compliance issues and accommodations under the Human Rights Code and policy development. She also...