South African Olympic gold medalist Caster Semenya lost an appeal Wednesday in athletics' highest court, which ruled that restricting testosterone levels in runners with "differences of sex development" is discriminatory but should be done anyway.
The Court of Arbitration for Sport (CAS) decided in favor of the International Association of Athletics Federations (IAAF) rule regulating testosterone levels, meaning that some athletes, such as Semenya, may need to take medication to suppress their testosterone levels in order to compete at international races.
The IAAF argued that female runners with high testosterone levels have an unfair advantage in races ranging from 400 meters to 1 mile.
The IAAF rule was due to come into effect in November 2018 but was suspended during Semenya's challenge that it is "discriminatory, unnecessary, unreliable and disproportionate."
The panel of three judges found that the regulation is discriminatory but added, "Such discrimination is necessary, reasonable, and proportionate means of achieving the IAAF's aim of preserving the integrity of female athletics in the Restricted Events."
The CAS judges, however, want the rule to be applied to races up to 800 meters, saying that there is not enough evidence to support the idea that women with elevated testosterone levels have a competitive advantage in the 1,500-meter or 1-mile race.
"The CAS Panel suggested that the IAAF consider deferring the application of the DSD Regulations to these events until more evidence is available," the ruling states.
The court also expressed "serious concerns" about implementing the rule, including the possibility that some athletes may face side effects from hormonal treatments.
"The side effects of hormonal treatment, experienced by individual athletes could, with further evidence, demonstrate the practical impossibility of compliance which could, in turn, lead to a different conclusion as to the proportionality of the DSD Regulations," the judges wrote.
Semenya, a two-time Olympic champion in the 800-meter race, issued a statement through her lawyers, saying, "The IAAF's regulations have always targeted me specifically.
"For a decade the IAAF has tried to slow me down, but this has actually made me stronger. The decision of the CAS will not hold me back. I will once again rise above and continue to inspire young women and athletes in South Africa and around the world," the statement reads.
The 28-year-old athlete also posted a message on Twitter that said, "Sometimes it's better to react with no reaction."
🤷♂️
The IAAF released a statement saying that it is grateful for the decision and that the CAS found the rule was necessary in order to preserve the integrity of the sport.
But a spokesperson for Human Rights Watch blasted the court's decision.
"Women with intersex variations have the same right to dignity and control over their bodies as other women, and it’s deeply disappointing to see CAS uphold regulations that run afoul of international human rights standards," Liesl Gerntholtz, deputy executive director for program at Human Rights Watch, said in a statement. "In scrutinizing and excluding women competitors based on their natural hormone levels, the IAAF regulations stigmatize, stereotype, and discriminate against all women."
The policy will now come into effect May 8. Semenya has 30 days to file an appeal with the Swiss Federal Tribunal.