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Semenya verdict ‘beyond absurd’

Professor Steve Cornelius couldn’t find the right words after hearing of the decision by the Court of Arbitration for Sport (CAS) to reject Caster Semenya’s case against the International Association of Athletics Federations’ (IAAF) new testosterone regulations.

READ MORE: Caster Semenya loses court challenge against IAAF testosterone rules

“When it came through there was a moment of stunned silence, and then we started reacting,” he says. “We really felt we had presented a strong case, and so had Caster’s team.”

As a legal adviser to Athletics South Africa’s case — which ran alongside Semenya’s — he had been given the news the night before it was announced on Wednesday afternoon. Unable to talk to anyone else about it, the members of the team expressed their dismay over the phone to one another and in their WhatsApp group.

The extra time was afforded to everyone involved so they could digest the verdict and prepare their press briefings accordingly. But this outcome was particularly hard to swallow.

READ MORE: ‘Necessary discrimination’: CAS rejects Caster Semenya’s appeal

To many it goes beyond mere disagreement about an issue: it straddles the line of the ambiguous and nonsensical. The CAS was called upon to act decisively on an incredibly complex and nuanced issue. What it offered instead was a murky solution that has left everybody perplexed. It was a solution that allowed the IAAF to flirt with scientific fact and adjust their position until their square peg finally found a round hole big enough to fit into.

“The attitude is: ‘This is a living document; if there are problems or anything, it can be revisited.’ This case should’ve given us clarity, but it looks like it hasn’t,” Cornelius continued. “I’m sure this is not the last word on it and we’ll see issues arise in the future.”

The verdict comes exactly a year after Cornelius himself made national headlines. Appalled by the IAAF’s decision to introduce new testosterone regulations among female athletes, he stepped down from his position in the body’s disciplinary tribunal. In his resignation letter to IAAF president Lord Sebastian Coe, he described the ideology of the new policies as similar to that behind some of the worst atrocities in human history.

READ MORE: SA lawyer quits IAAF, slams ‘unethical’ regulations

Soon after, he provided insight to a Mail & Guardian article titled “Bad science won’t undo Semenya”, which highlighted the many flaws in the IAAF’s rationale. At the time, Semenya hadn’t even approached the CAS, but to much of the scientific community it seemed implausible that these new rules would be allowed to stand. The beauty of peer-reviewed research is that inaccuracies can be called out — at least in theory.

“I’m stunned, actually,” reveals Dr Eric Vilain, a geneticist and one of the international experts called up to testify at the CAS by Semenya’s legal team. “The decision goes against the basic principle of actually looking at scientific fact to establish policy.

“I’ve been an adviser to the International Olympic Committee since 2010 and I’ve seen the way some of the policies have gone. They’ve reached a number of iterations — this one is just plain incomprehensibly wrong.”

The IAAF’s new regulations are, in essence, the evolution of its previous hyperandrogenism policy, which was successfully challenged in the CAS by Indian sprinter Dutee Chand in 2015. The court, however, didn’t dismiss its necessity and asked that the IAAF return with better evidence.

READ MORE: So what if some female Olympians have high testosterone?

The evidence offered last year came predominantly from a 2017 study, commissioned by the body itself and published in the British Journal of Sports Medicine. The validity of that paper has since been called into question by various researchers, and the IAAF has even admitted that it contains serious inconsistencies. What persuaded the CAS almost to contradict its last verdict remains unclear.

“It turns upside down the previous decision of the same court, which was the Chand case,” Vilain continued. “The principles that were reliant on scientific evidence, that were asked by the CAS to the IAAF, which they have not produced, now don’t seem to matter for the court. The restricted events do now not include 100m and 200m, which conveniently removes the Chand case from consideration. It’s beyond absurd.”

One of the researchers who extensively critiqued the 2017 study was Professor Roger Pielke Jr. He, too, would feature as part of Semenya’s team of experts. To him, the decision to ignore the evidence on offer can only mean one thing.

“I think what this illustrates is that the CAS, which was an organisation developed in the 1980s, may not quite be fit for purpose in 2019,” Pielke says. “There are lots of matters in sport that require science and it’s essential to have the best evidence available.

“The CAS is a creature of the Olympic movement and has always been overseen and run by sports bodies like the IAAF. I would think that athletes, as we see in many cases, hold the key to effective reform. If I were an athlete who fell under the jurisdiction of the CAS, I would be quite nervous as to whether they’re capable of handling complex, nuanced, scientific issues leading to what may be seen as arbitrary decisions in the end.”

Not helping ease tensions is the CAS’s insistence on describing the verdict as a “living document”. While the court did express concerns over the long-term implementation of the new rules, the door has been left ajar potentially to restrict Semenya even further. At present, the regulations apply to the 400m, 800m and 1 500m events. What would happen should Semenya adapt and decide to excel in longer distances — something she hinted at by running the 5 000m last Friday?

“I do not have any idea what would happen if Caster, who’s an incredible athlete, decided to run 3 000m or 5 000m and did well,” Pielke says. “Would the IAAF take advantage of the ‘living document’ clause that the CAS has provided and continue to pursue her? To try to eliminate her from sport? I don’t know the answer to that. But it’s perfectly plausible.”

What we do know is that clarity was a currency that Semenya, and everybody else, was cruelly denied with this verdict. She has since said she will continue to rise.

Evidently, and unfortunately, it appears others will pursue her to a near-infinite ceiling as well.

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Luke Feltham

Luke Feltham runs the Mail & Guardian's sports desk. He was previously the online day editor.

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