Christine Mboma runs the 200 metres like no other elite sprinter in history. Her start is sluggish. Her drive phase needs work. But then her legs begin to whirr … and suddenly whoosh! One, two, three, four opponents are picked off. At the Olympics she flew from fifth with 50m left to win a silver medal. Last week she also added the Diamond League title in an Under-20 world record of 21.78 sec. What makes the 18-year-old’s achievements remarkable, aside from her age, is that she only began focusing on the 200m in July.
Given time, and better technique, Florence Griffith Joyner’s world record of 21.34 sec will fall. Yet Mboma is also increasingly faced with a devilish catch-22. The faster she runs, the more she provides evidence that she has an unfair advantage as an athlete with differences in sex development (DSD). Francine Niyonsaba, who won the women’s 5,000m Diamond League final has a similar dilemma.
Mboma and Niyonsaba, who have already been forced to switch from their favourite events, the 400m and 800m respectively, could face further heartache and restrictions. Meanwhile, World Athletics has a major headache. And the rest of us are confronted with a minefield of scientific, ethical and legal issues – essentially Caster Semenya redux.
It was Semenya, of course, who failed in her challenge to controversial rules that bar athletes with a DSD from running internationally at events between 400m and a mile, unless they take medication to reduce their high testosterone.
But while the court of arbitration for sport’s decision in the Semanya case made global headlines, its 163-page reasoning, which emerged months later, never percolated into the mainstream. Revisiting it, though, reminds us just what is at stake.
Crucially, Cas ruled that 46 XY DSD athletes “enjoy a significant sporting advantage … over 46 XX athletes without such DSD” due to biology.
It noted that 46 XY 5-ARD individuals have male testes but do not produce enough of a hormone called DHT, critical for the formation of male external genitalia, which it said leads to having “no typical birth sex”.
However, it added: “Individuals with 5-ARD have what is commonly identified as the male chromosomal sex (XY and not XX), male gonads (testes not ovaries) and levels of circulating testosterone in the male range (7.7-29.4 nmol/L), which are significantly higher than the female range (0.06-1.68 nmol/L).”
Experts from both sides also agreed there were other advantages, including “greater lean body mass, larger hearts, higher cardiac output… and larger V02 max than 46 XX individuals.”
Yes, World Athletics’ DSD rules were discriminatory, Cas ultimately decided. However they were justified to provide fair competition for women with normal testosterone levels.
But in a nuanced summary, it stressed its admiration for DSD athletes who, as one expert pointed out, “often appear female at birth and are reared female”, and considerable unease about the way testosterone would have to be tracked if they took medication. “This is an issue in which reasonable and informed minds may legitimately differ,” it added.
Those minds are certainly differing right now. Some of Mboma’s rivals, including the 400m gold medallist Shaunae Miller-Uibo, have questioned why the restrictions are “just a few events and not straight across the board”. But there are many who want no restrictions at all, who believe it is appalling to ask athletes to take medication, and want sport to recognise that society is becoming more gender-fluid.
Essentially the argument boils down to whether you value fairness or inclusivity more. Either way, critics on both sides believe World Athletics’ current policy is not fit for purpose.
Then there is the Tucker paradox, which was brought up by Semenya’s lawyer at Cas. “The foundational premise of World Athletics’ policy is that testosterone gives males an advantage over females,” Prof Ross Tucker, who testified on behalf of Athletics South Africa, explained to me. “Now that’s inarguably true in the shot put, which lasts less than a second, as it is in a marathon, which lasts thousands of seconds. Yet its policy only covers between 400m and a mile. That doesn’t make sense. There’s a disconnect between World Athletics’ principle and its policy.”
He is right. Much of it goes back to the case of the Indian sprinter Dutee Chand in 2016, after which Cas ruled it would be discriminatory for World Athletics to require all athletes with a DSD to take medication, unless it provided more evidence. Because of the over-representation of athletes with a DSD in the 400m and 800m, World Athletics decided to just focus on those events and the 1500m and mile. But this was based on disputed research, which has since been found to have been “misleading”.
And so for many good reasons this issue rumbles on, not least because – as Cas noted in the Semenya case – it involves incompatible and competing rights.
“Put simply, on one hand is the right of every athlete to compete in sport, to have their legal sex and gender identity respected, and to be free from any form of discrimination,” it said.
“On the other hand, is the right of female athletes, who are relevantly biologically disadvantaged vis-à-vis male athletes, to be able to compete against other female athletes and to achieve the benefits of athletic success.”
Cas also opened the door for World Athletics to restrict more events, when it called the policy “a living document”. Given Semenya’s appeal remains ongoing, that won’t happen yet. But if it does, the world’s finest sports lawyers will certainly take note.