Policing ‘sport sex’: Examining the legal challenge filed against World Athletics’ 2018 Differences of Sexual Development regulations

Abstract

Policies that regulate entry into women's sports competitions continue to be enforced even as they have been critiqued as discriminatory and unfair, and subjected to legal challenges. To better understand the persistence of these highly contested policies and the continued exercise of normalising disciplinary power over female athletes with hyperandrogenism, this paper analyses the Court of Arbitration for Sport's arbitral award in South African athlete Caster Semenya's challenge in Court of Arbitration for Sport against the 2018 Differences of Sexual Development Regulations for the Female Classification in the Court of Arbitration for Sport. Drawing on a Foucauldian conception of power as productive of knowledges and subjectivities, the following analysis examines the close imbrication of techniques of disciplinary power and legal mechanisms to critique the Court of Arbitration for Sport's acceptance of World Athletics' evidence in support of the Differences of Sexual Development Regulations and its ruling to uphold these Regulations. Legal arguments that such eligibility regulations are discriminatory, unfair and disproportionate to their stated aims are articulated within the inherently constrained framework provided by the prevailing juridical mechanisms, where an independent definition of key terms – ‘discrimination’ and ‘fairness’ – cannot be developed. The Court of Arbitration for Sport's ruling also highlights the limitations of the arguments premised on human rights to secure the recognition of the rights of 46XY women with hyperandrogenism against discriminatory regulations. The paper argues for the need to analyse the power relations at play in the discursive construction of women with 46XY Differences of Sexual Development as problematic and threatening to challenge the exercise of normalising disciplinary power over their bodies.

Keywords

Caster Semenya 2018 Differences of Sexual Development regulations eligibility regulations 46XY Differences of Sexual Development athletes Court of Arbitration for Sport gender discrimination fairness

Introduction

Policies regulating entry into women's sports have a reciprocal, mutually constituting relationship with cultural constructions of women's physical weakness (Pieper, 2014; 2016; Heggie, 2010; Schultz, 2011; Kidd, 2018). They represent the collective psychic investment in maintaining a clear sex binary – materially and symbolically – especially when such neat bifurcations are being questioned (Cavanagh & Sykes, 2006). Justifications for retaining these policies to protect female athletes are tenuous at best, given the elasticity of the notion of protection (Posbergh, 2022), changes in the biomedical norms for appropriate athletic femininity (Erikainen, 2020) and the shifting targets of these regulations (Henne, 2015; Rogol & Pieper, 2017): during the height of Cold War, as visibly strong, well-muscled athletes from Eastern Europe challenged middle-class Anglo-centric notions of appropriate femininity, they were subjected to related suspicions of doping with androgens and that they might be unscrupulous men masquerading as women (Rogol & Pieper, 2017; Henne, 2015). Over the years, the target of suspicion has shifted to female athletes of colour from the global south as their visibility and success pose a challenge to Eurocentric notions of femininity. Since the adoption of targeted testing by the World Athletics (IAAF/WA¹) and International Olympic Committee (IOC) since the 2000s, only women of colour from the global south have been tested under these regulations (Karkazis & Jordan-Young, 2018; Bowman-Smart, Savulescu, O’Connell & Sinclair, 2024). Medical tests conducted on these athletes in pursuance of these policies, and highly publicised, mediated speculations about their gender restage the colonial spectacle of black women's bodies being subjected to prurient curiosity and medical scrutiny (Munro, 2010; Batelaan & Abdel-Shehid, 2020; Nyong’o, 2010). Particularly in the case of black athletes like Caster Semenya, these regulations function to problematise black femininity and force athletes to conform to Western norms for femininity (Batelaan & Abdel-Shehid, 2020). These policies are underpinned by the drive to universalise the category of ‘woman’ on the basis of biomedical criteria, which obscures racial and regional biases in setting these criteria (Karkazis & Jordan-Young, 2018), and they have been criticised as an exercise in cultural imperialism that ignores or devalues more localised and culturally variant forms of femininity (Sykes, 2006). Given the harms inherent in the medical interventions necessitated by the Differences of Sexual Development (DSD) regulations, scholars have argued in favour of using an athlete's legal sex to determine eligibility, rather than conducting further medical tests and interventions (Karkazis & Jordan-Young, 2012; Bowman-Smart et al., 2024). The need to redefine the notion of fairness underlying these policies has also been highlighted to argue for changes to regulations (Camporesi & Hämäläinen, 2021; Loland, 2021). Despite these criticisms and even legal challenges against such regulations, they continue to persist – albeit in altered forms.

To better understand the resilience of these policies, this paper draws on a Foucauldian concept of power to examine the power relations that underpin the adoption and enforcement of these policies, and the conceptual and practical limitations of opposing the exercise of power inherent in these policies by appealing to legal rights. Focusing in particular on the 2018 DSD Regulations for the Female classification (Athletes with Differences of sex Development) (hereafter the 2018 Regulations) as representative of such policies, this paper examines the redacted arbitral award delivered by the Court of Arbitration for Sport (CAS) in Caster Semenya & Athletics South Africa v. IAAF (2018), accessed from the CAS website. Caster Semenya filed a challenge in CAS against the 2018 regulations that required 46XY DSD female athletes with high endogenous testosterone to reduce their testosterone to below 5 nmol/l to be eligible to compete in women's races in the 400 m to 1-mile range (IAAF, 2018). Her challenge noted that the regulations were discriminatory, unfair and disproportionate to their stated aim, and she also challenged the scientific evidence used to develop the policy. Having considered these arguments and IAAF/WA's defence of the 2018 Regulations, the CAS ruled in favour of retaining these regulations as a necessary, if imperfect, means of ensuring fairness in women's competitions.

An emerging body of literature has examined the potential difficulties in enforcing such regulations when they are at odds with legal protections in various countries for trans* and intersex people (Johnston, 2020; Larson, 2011; Archibald, 2019; Mangle, 2021). Studies have also identified lapses in IOC and IAAF/WA's policy-making procedures and significant issues with the underlying scientific data used to justify the policy (Kidd, 2018; Pielke, Tucker and Boye, 2019). Analyses of court proceedings from this case have also pointed to the inconsistencies in IAAF/WA's justification of their policy and highlighted the complexities of maintaining a distinction between legal sex and biological sex, especially in relation to the IAAF/WA's dual obligations to acknowledge legal considerations while also ensuring fair competition (Bowman-Smart et al., 2024; Pike & Hilton, 2025). Adding to these discussions, the current paper draws on a Foucauldian conception of legal and disciplinary mechanisms of power as closely intertwined to examine the relations of power at play in CAS's final decision to uphold the regulations. Acknowledging concerns that even critical literature on Caster Semenya, inadvertently, tends to objectify her and reproduce the dominant epistemic frameworks for understanding the racialised others, especially those who do not fit the sex/gender binary (Nyong’o, 2010; Posbergh & Clevenger, 2022), the paper seeks to focus on the discursive construction of women with hyperandrogenism as problematic and therefore in need of medical normalisation, rather than on Semenya's gender identity.

The following section provides an overview of the concepts used in the analysis of the arbitral award. Then, the analysis begins by situating CAS within the sprawling bureaucratic apparatus of modern sport to examine its functioning as a (quasi-)legal entity and its relation to IAAF/WA. This is followed by a close reading of the CAS panel's judgement, focusing on the specific grounds on which the regulation was challenged. The challenges presented by Semenya and her lawyers are contrasted with the defence presented by the IAAF/WA's lawyers, followed by an analysis of CAS's judgement in relation to these arguments. The paper then explores the contrasting construction of testosterone presented by both parties and the basis on which CAS evaluates competing evidence to rule in favour of IAAF/WA. While subsequent research has questioned the reliability and validity of the papers used by IAAF/WA in defence of its regulations (see Pielke, Tucker and Boye, 2019; Sőnksen et al., 2018; Franklin, Betancurt and Camporesi, 2018), current analysis only focuses on the evidence presented in CAS during the case under analysis and examines CAS's evaluation of the evidence presented to it.

Power play: Different modes of exercising power

The contemporary field of power relations is constituted by the complex interplay of mechanisms of sovereignty, biopower and governmentality (Foucault, 1978/2009). Sovereign power – a fundamentally extractive mode of power that functions primarily through prohibitory laws – co-exists with mechanisms of disciplinary power that function on the basis of norms and attempts to normalise deviant subjects and techniques of governmentality. Governmentality – encompassing both the underlying rationalities or ‘mentalities’ and techniques of exercising power – functions within a modern liberal context where governance of conduct is devolved to a range of heterogeneous State and non-state actors (Dean, 2010). Governmental mechanisms function by constituting a domain within which subjects are rendered visible through processes of knowledge production and the distinctive vocabularies, concepts and truths that these processes engender. Governance, then, involves intervening within this domain to control certain phenomena and modulate behaviour to constitute particular kinds of subjects in relation to the phenomena under consideration (Dean, 2010). Mechanisms of governance are not opposed to freedom, but freedom becomes a necessary element in the operation of power (Foucault, 1982). These mechanisms produce subjects ‘capable of bearing a kind of regulated freedom’ to make choices about their conduct, albeit within a field structured through the use of expertise and services provided by a range of different types of providers (Miller & Rose, 2008: 53). This complicates the conventional understanding of the opposition between the exercise of power and personal freedoms, and the concomitant notions of personal choice and informed consent, as ‘[p]ersonal autonomy is not the antithesis of power but a key term in its exercise’ (Miller & Rose, 2008: 54).

While this understanding of governmentality developed primarily out of the analysis of the State's exercise of power in modern liberal democracies in the West, I draw on the conception of decentralisation of power to understand the IAAF/WA's policies aimed at guiding the conduct of athletes under its purview as governmental strategies. In their role as a governing institution, the IAAF/WA constitutes the sporting domain as a unique, exceptional field, underpinned by considerations of fair competition which supersedes any other considerations of rights and freedoms (Kidd, 2013a; Kidd, 2013b; Young & Wamsley, 2005). Within this domain, women with hyperandrogenism are constituted as problematic subjects who threaten fair competition by unsettling the categorical distinction between ‘male’ and ‘female’, and policies are adopted to address these threats and protect women's sport. Under such policies, the choice given to female athletes with hyperandrogenism to reduce their testosterone level through medical intervention and return to competition is highly regulated, conditioned by the use of medical expertise to set biomedical norms for femininity that athletes have to conform to. This understanding of the IAAF/WA as a governmental body underpins the subsequent analysis of the imbrication techniques of disciplinary and governmental power and the Law, represented here by CAS.

To constitute the relationship between the CAS as a (quasi-) legal body and the IAAF/WA, I draw on Golder and Fitzpatrick's (2009) elaboration and clarification of Foucault's work on the interplay between the Law and disciplinary mechanisms of power. Foucault noted that the Law, increasingly, came to rely on disciplinary processes of knowledge production to generate the ‘norms’ in relation to various human phenomena that the Law draws on when deciding on matters of legality. However, Law is not merely sidelined or instrumentally subordinated to disciplinary or governmental mechanisms of power, but these mechanisms exist in a more complex interrelationship (Golder and Fitzpatrick 2009). When we consider Law in both its dimensions – as the determinate set of rules and the indeterminate potential to extend and encompass newer instances of resistance and recalcitrance, it provides the constitutive ground for the operation of disciplinary power (pp. 53–55). Firstly, disciplinary mechanisms are legitimised through the promise of legal oversight to protect against any abuse of individual rights, but this legal oversight is strategically limited to supervising only egregious instances of breach of rights while maintaining the illusion of overall legal oversight of the field. The field thus structured by the operation of disciplinary power acquires the appearance of ‘true order of things’ (Golder & Fitzpatrick, 2009: 66). Secondly, the disciplinary project to know the whole truth of the individual is necessarily incomplete, given the immanentist position from which this knowledge is produced. The Law serves to conceal this inherent instability of the norms by conferring legal authority to the knowledge produced by the normative human sciences (2009: 60–64). The following analysis highlights how CAS, through its ruling in Caster Semenya's case, performs both these functions.

CAS and the emergence of ‘lex sportiva’

Caster Semenya filed her legal challenge against the 2018 Regulations in the CAS, the global apex body for sports-related arbitration. The Lausanne-headquartered arbitration court is seen to address the practical need for a central (quasi-)legal entity, with a unified set of norms and standardised procedures, to preside over a globally dispersed and diverse set of sports governing bodies. However, athletes are effectively forced into arbitration in CAS by relevant clauses included in sports policy documents and codes, such as Article 74 of the IOC Charter (2019) and Article 20.1 of the IAAF constitution (2019). Further, claims of standardisation and predictability are tenuous since CAS rulings are not considered precedential (Lenskyj, 2018).

Any battle in CAS between individual athletes and sports’ governing bodies is inherently unequal, as the governing bodies are better resourced and can draw on institutional knowledge and experience (Lenskyj, 2018; Casini, 2011). They also hold a discursive advantage over individual athletes as CAS functions with documents such as the World Anti-Doping Agency (WADA) code, IOC and IAAF/WA constitutions as its de facto constitutions to judge particular policies and decisions under question on the basis of their compliance with higher-level regulations and principles expressed in these documents. So, the governing bodies effectively set the terms within which legal debates on policy matters can be articulated, thereby limiting the kinds of legal challenges that can be made in CAS against their authority.

Given these imbalances, the Swiss Federal Tribunal and the European Court of Human Rights (ECHR) have expressed concerns regarding the presumption of ‘voluntary’ consent of athletes to arbitration by CAS and the court's claim to fiscal and operational independence; but they have, nevertheless, upheld the validity and necessity of ‘a unitary arbitral tribunal for sports-related matters [which can] can contribute to the further development of international sports law’ (Ehle & Guiaia, 2016). Athletes who are dissatisfied with CAS rulings can appeal against particular decisions in the Swiss Federal Court, which exercises jurisdiction over CAS; however, the court has been reluctant to challenge CAS rulings, citing jurisdictional concerns (Baddeley, 2020).

Operating in the liminal space between public and private law, CAS has played an instrumental role in developing a global ‘lex sportiva’ – a corpus of legal norms and procedural frameworks specialised to deal with sporting issues. CAS represents the culmination of the argument for exceptionalism of sport in the legal realm (Casini, 2011; Lenskyj, 2018; Lindholm, 2019: chapters 1–2). The legal authority vested in CAS accords a measure of protection for sports’ governing bodies from national laws and international legal conventions (Baddeley, 2020). Though sports’ governing bodies operate like profit-making businesses and wield significant authority over athletes, within the legal sphere, they neither qualify as States nor are they always formally recognised as employers. If presenting a legal claim entails expressing experience in a legally recognisable language (Smart, 1990: 197–198), then athletes’ grievances against sports governing bodies that exercise power over them are lost in translation.

Unfair discrimination

Caster Semenya argued that the 2018 Regulations were arbitrary, discriminatory on the basis of sex and disproportionate to their stated aim of ensuring fairness in women's sport. In the absence of any comparable tests or eligibility criteria for male athletes, it is argued that the regulations unfairly discriminated against female athletes with certain natural characteristics (Semenya & ASA v. IAAF, 2018: 2). Further, the court filings also pointed to inconsistencies in the stance in relation to athletic advantages: the genetic variations targeted by the 2018 Regulations are mostly medically benign and not radically different from myriad other genetic variations that are not regulated, though some have been shown to provide athletes with competitive advantages (Semenya & ASA v. IAAF, 2018: 33–34). Significantly, Semenya's submission also noted that the regulations ‘indirectly differentiate on the basis of race, ethnicity and/or social origin, since they disproportionately affect women of colour and athletes from the Global South’ (Semenya & ASA v. IAAF, 2018: 47–48). In response, the IAAF/WA's medical experts asserted that the Regulations only appear to impact athletes of colour since they are overrepresented at the elite level (p. 160). Ironically, in countering allegations of racism, the IAAF/WA drew on and reinforced racial stereotypes about black athleticism and discredited notions of insufficient gender differentiation in ‘primitive’ races to defend its policy (Bederman, 1995; Magubane, 2014).

In defending the Regulations against charges of unfair discrimination, the IAAF/WA changed the definition of ‘relevant athlete’ from females with 46XY DSD to ‘biologically male’ athletes with a ‘male sport sex’ (Semenya & ASA v. IAAF, 2018: 8–10). So, if the ‘relevant’ athletes were not female, then treating them differently from other female athletes would not be unfair discrimination but a necessary differentiation. Such a redefinition of terms was challenged by Semenya's lawyers, and she resisted the label of a ‘biological male’ as obviously discriminatory, disrespectful of her gender identity, at variance with her legal recognition as a woman, and a violation of her right to gender self-identification guaranteed under the Universal Declaration of Human Rights by the United Nations.

In its judgement about the discrimination inherent in the regulations, CAS indirectly accepts IAAF/WA's designation of ‘relevant athletes’ as ‘biologically male’ by noting that ‘the right to participate in the female class cannot simply depend on whether an athlete is recognised in national law as female’ and that the DSD regulations address the ‘desire of certain biologically male athletes with female gender identities to compete in the female category of competition’ (2018: 119–120). CAS's ruling also did not substantively engage with the racist implications of the policy, thereby ignoring the inseparability of race in the social construction of gender and the assumptions about race that are implicit in the IAAF/WA's construction of the category of the ‘female’ athlete.

The CAS panel's judgement regarding discrimination highlights the problems with the underlying conception of equality as equivalence, which results in the legal mandate to treat ‘likes alike and unlikes unlike’ (MacKinnon, 1987: 32). Since female athletes with hyperandrogenism are shown not to belong in the category of normal female athletes, treating them differently does not amount to discrimination. Sexual differences (and in this case differences between ‘normal’ female athletes and female athletes with hyperandrogenism) are understood as anterior to and forming the basis for the social construction of differences. Therefore, regulations that treat these groups differently are seen as a recognition of these pre-existing differences – an attempt to make legal norms fit empirical reality (MacKinnon, 1987). Further, this approach to ensuring equality also cannot account for situated inequalities, as evidenced in the CAS's inability to factor in either the racialised gender discrimination against women of colour or the general discrimination faced by intersex women in society when assessing the necessity and proportionality of the 2018 Regulations.

All is not ‘fair’: Questioning the conception of fairness in sport

For sports’ governing bodies, guaranteeing a level playing field functions as an important aspirational ideal, even though it is intractably difficult to define (Bowman-Smart et al., 2024) and not achievable in practice (Caillois, 1961). The 2018 Regulations are justified as a means of ensuring fairness so that no athlete has an (in principle) insurmountable advantage over others within the same competition category. Regulating athletic advantages requires the articulation of a coherent ethical stance that distinguishes between permissible advantages and unfair advantages. The usual understanding of natural advantages as compatible with fairness and artificial means of gaining advantages (such as through doping) as unfair breaks down in the case of these Regulations targeted at intersex female athletes who derive their supposed competitive advantages from natural factors. Other genetic variations, even those deemed advantageous, are not regulated against, while 46XY female athletes with naturally high endogenous testosterone levels are required to reduce their testosterone levels to be eligible to compete with other women.

Highlighting these inconsistencies, Semenya's experts pointed out that a rigorous and qualitative distinction between Differences in Sexual Development and other genetic variations is not scientifically tenable but is maintained on the basis of ‘rigid binary ideas about sex and gender’ (Semenya & ASA v. IAAF, 2018: 20). Caster Semenya advocated for a qualitative shift in the understanding of fairness in sport and consequently the framing of DSDs: ‘[t]he world celebrates the genetic differences that make athletes such as Usain Bolt, Michael Phelps and Serena Williams great. DSD are a form of genetic difference that should be celebrated in the same way’ (Semenya & ASA v. IAAF, 2018: 10).

Rather than (re)defining ‘fairness’ substantively to evaluate the validity of the Regulations being contested, CAS limited its judgement to clarifying if the eligibility requirements are necessary to ensure fairness as already implicitly understood by the sports governing bodies. The contestation over the meaning of ‘fairness’ in competitive sport – and by extension the dominant cultural meanings and purpose assigned to sporting activity – cannot be pursued to a radical end through legal challenges, as evidenced by the CAS panel's refusal to redefine ‘fairness’. In CAS's judgement, the legal and ethical dimensions of deciding between fair and unfair advantages are reduced to questions about available scientific evidence regarding the magnitude of athletic advantages (if any) enjoyed by 46XY DSD women relative to ‘normal’ women (2018: 141). This shift in focus poses the tension occasioned by athletes who resist neat categorisation within the gender binary as a medical problem to be resolved by subjecting them to normalising treatments, while leaving intact the underlying institutional arrangements of modern sport that problematise these athletes.

Legal problems, medical solutions

To adjudicate on questions of discrimination and fairness in relation to the 2018 Regulation, CAS relies on available scientific evidence, with the explicit understanding that if the link between endogenous testosterone and enhanced athletic performance can be proved, then the discrimination inherent in the regulations would be acceptable, and the regulations could be deemed legitimate and legal. Medical knowledge is used here as an ‘arbitrating discourse’ as it ‘has been rendered neutral because its scientificity has become sacred’ (Foucault, 2003: 39). Focusing on the medical evidence, the following sections examine the challenges made to the processes through which the IAAF/WA obtained and used research data to develop the 2018 regulations. The sections then delineate the points of disagreement between the experts regarding the effects of endogenous testosterone on women with hyperandrogenism to develop a critique of the CAS panel's assessment of the contrasting arguments to ultimately rule in favour of IAAF/WA.

Potential bias, conflict of interest and acceptability of the evidence

Semenya's filing noted that the 2018 Regulations had been formulated by panels comprising mostly white male medical experts, with little participation or input from DSD individuals or activists, thereby exacerbating the racial divide in knowledge production and policy making which adversely impacts non-white athletes from the Global South (Semenya & ASA v. IAAF, 2018: 35). Problematic views expressed by Dr Bermon – a member of the IAAF/WA's Health and Science Department and the author of the research study used by IAAF/WA to justify the regulations – were also presented to highlight the potential impact of the personal biases held by the policy makers. International athletics coach Pierre-Jean Vazel recounted Dr Bermon's statement that ‘genetic mutations are often related to inbreeding in developing countries’ and that ‘these people’ should not compete with women (2018: 22).

Two of the key research papers used by the IAAF/WA as evidence – Handelsman, Hirschberg and Bermon's 2018 paper investigating circulating testosterone as the basis for sex differences in athletic performance and Bermon and Garnier's 2017 study (BG 17) on the impact of circulating testosterone on the performance of track and field athletes – were both authored by researchers affiliated to the IAAF/WA (Semenya & ASA v. IAAF, 2018: 5). Semenya's experts, therefore, argued that the IAAF's policy-making procedure did not meet the criteria that ‘the scientific advice is and is seen to be free from conflict of interest’ (Semenya & ASA v. IAAF, 2018: 144). Athletics South Africa (ASA) also challenged the legal admissibility of BG 17 data, where blood samples originally collected for anti-doping tests from athletes participating at the 2011 Daegu World Championships in Athletics were repurposed to measure free testosterone levels. ASA submitted to CAS that this evidence should be deemed inadmissible as it ‘violated the laws of Monaco, Republic of Korea and the Russian Federation’ since the IAAF/WA had not obtained explicit consent from the athletes whose data were used for the study (2018: 53).

BG 17 and Handelsman et. al. (2018) papers were also critiqued for issues with their study design and methodology. Semenya's experts noted that Handelsman's paper was not a systematic review as claimed, but a ‘narrative review’ that selectively used available data to express the authors’ views (2018: 37–38). In BG 17, when calculating the ‘normal’ testosterone level for male and female athletes, a wide range of factors known to influence testosterone levels were not controlled for, and the standard but time-consuming ‘equilibrium dialysis’ method was substituted for methods that enabled the calculation of approximate fT levels. This led to concerns that data regarding the testosterone levels of individual athletes used to set the ‘normal’ testosterone range might be inaccurate and unrepresentative of the athletes’ true testosterone levels (2018: 59). Further, it was also noted that while the two studies conducted by researchers affiliated with the IAAF/WA had found a correlation between endogenous testosterone and athletic performance, the other two papers authored by independent researchers did not draw the same conclusions. BG 17 had concluded that ‘[f]emale athletes with high fT levels have a significant competitive advantage over those with low fT’ in these events (Bermon & Garnier, 2017:1). But, Professor Roger Pielke, a former director of the Sports Governance Centre at the University of Colorado Boulder, testified that his team was unable to replicate the results obtained in BG 17 using the methodology stated in the paper and the available raw data (Semenya & ASA v. IAAF, 2018: 140–141). He also noted that there were ‘systemic, pervasive and consequential errors in the underlying science put forward as the basis for the DSD Regulations’, concluding that the IAAF/WA had not followed recognised best practices for using scientific evidence to support policies (2018: 30).

In its ruling, the CAS Panel rejected the arguments about conflict of interest as it was ‘satisfied that each expert used his or her best endeavours to express their own genuinely held views’ (Semenya & ASA v. IAAF, 2018: 123). The panel also judged the data used by the BG 17 to be legally admissible as ASA was unable to show that ‘under Monegasque law … [biomedical research] includes analysis of pre-existing data arising from collection with the consent of the athletes concerned’ (2018: 134). While the best practices for using scientific data to develop policies were acknowledged to be ‘laudable objectives’, the Panel judged that it was not required to ‘evaluate the adequacy of the IAAF's general policy- making process or to re-write its rules’ (2018: 144–145). CAS panel, thus, strategically withdraws itself from exercising any legal oversight over the policy-making processes of IAAF/WA, limiting its legal oversight to assessing the proper application of existing policies. This demonstrates the pattern of interplay between the Law and disciplinary power highlighted by Golder and Fitzpatrick (2009), where the promise of legal oversight, combined with its strategic withdrawal, enables and legitimates the exercise of disciplinary power.

Competing constructions of testosterone

In the court proceedings, all parties concede that ‘biological sex is not binary’; but since athletic contests are divided into male and female categories, it is still deemed necessary to find determining criteria to sort athletes into relevant competition categories (Semenya & ASA v. IAAF: 124). The discussions then become focused on androgens as they are both sexually dimorphic and known to impact athletic performance. Popular and scientific understanding of certain hormones, such as testosterone and progesterone, as sex hormones continues to dominate even as these hormones are present in all bodies to varying degrees, and their functions have been shown to extend beyond sexual development, narrowly conceived (Oudshoorn, 1994; Fausto-Sterling, 2000; Roberts, 2007). Testosterone, characterised as the male hormone, is presented in popular and scientific discourse and as the determinant of a whole host of masculine behaviours ranging from competitiveness, aggressiveness and risk-taking to enhanced strength (Jordan-Young & Karkazis, 2019). However, such biologically based causal explanations for behaviour oversimplify complex sociological phenomena, presenting hormones as capable of superseding myriad other social and biological factors in determining human behaviour (Jordan-Young & Karkazis, 2019; Connell, 1987). Testosterone, thus, becomes the focus of attention as a factor impacting athletic performance, to the exclusion of other factors, because of its cultural significance as a male hormone rather than vice versa.

This focus on testosterone in the regulations was previously contested in CAS when Dutee Chand challenged the 2011 iteration of the regulations. As an expert witness for Chand, cultural anthropologist and bioethicist Dr Karkazis critiqued the dominant understanding of testosterone as the male hormone, noting that there is a ‘great deal of mythology’ about the efficacy of endogenous testosterone in enhancing athletic performance (Chand v. AFI & IAAF, 2018: 134). She challenged the plotting of a direct, linear link between higher testosterone and enhanced athletic performance as individuals respond in ‘drastically different’ ways to the hormone (2018: 134). In its judgement, CAS characterised this testimony as mere ‘sociological opinion, which does not equate to scientific and clinical knowledge and evidence’ (Chand v. AFI & IAAF, 2018: 134). By narrowing the scope of what counts as scientific evidence to discount expert testimonies examining how scientific research is structured by prevailing cultural beliefs and assumptions, CAS tacitly accepts the dominant construction of testosterone as a potent causal agent in determining sexual development and athletic success. Given this stance of CAS expressed in the previous case, the focus on testosterone is not explicitly challenged in Semenya's case, though attempts are made to de-emphasise testosterone by highlighting other biological factors that impact athletic performance.

When considering clinical and medical evidence more narrowly in Semenya & ASA v. IAAF, experts for the IAAF/WA and the athletes differed on three key points: the ‘normal’ testosterone range for men and women; the magnitude of the impact of other biological and exogenous factors on athletic performance; and the validity of extrapolating evidence from the effects of administering exogenous testosterone on athletes to understand the effects of naturally high endogenous testosterone levels in women with hyperandrogenism. Given these disagreements and the contrasting evidence presented, the CAS panel is called upon to exercise its legal authority to determine what counts as scientific truth, underscoring the point that ‘[t]ruth is a thing of this world’, produced in this instance through legal constraints on what counts as true discourse (Foucault, 2000: 131).

When presenting the statistical ‘norms’ for testosterone, experts for IAAF/WA present endogenous testosterone levels as relatively stable and constant over time, with predictable effects on musculature and strength that lead to better overall athletic performance. In using a single measurement of serum testosterone from samples collected from athletes after a competition to arrive at a ‘male’ and ‘female’ range, the IAAF/WA envisions testosterone levels in an individual as relatively stable over time. However, the IAAF/WA's own observation that there is a post-competition slump in testosterone levels in male athletes contradicts this conception of testosterone levels as unvarying. In addressing instances of overlap between male and female testosterone levels highlighted by Semenya's experts, IAAF/WA argued that women who had testosterone levels higher than 3.08 nmol/l were either suspected of having DSD or of doping (Semenya & ASA v. IAAF, 2018: 87–88). By regarding athletes whose testosterone levels do not conform to the expected norms as either suspicious or medically abnormal, IAAF/WA attempts to discount overlap to construct a clear separation between male and female ranges for testosterone.

Reducing testosterone to its biochemical composition, IAAF/WA's experts argued that endogenous and exogenous testosterone produce the same clinical effects since they are chemically indistinguishable. Extrapolating from this, they argued that elevated endogenous testosterone in women with hyperandrogenism gives them an insurmountable athletic advantage. In contrast to this, Semenya's experts highlighted the complexity of the endocrine system and differences in the functional effects of exogenous and endogenous testosterone. They noted that since exogenous testosterone disturbs the body's homeostasis and triggers different responses, they ‘result in wider effects on the endocrine system than are caused by natural fluctuations in endogenous testosterone’ (Dr Holt cited in Semenya & ASA v. IAAF, 2018: 26). Given these functional differences, it is argued that results from research done on the effects of administering exogenous testosterone to male athletes cannot be extrapolated to mean that high endogenous testosterone produces the same effects in 46XY DSD women. Attempting to decentre testosterone in the discussion, expert witnesses for Semenya drew attention to the correlation between other androgens – such as Dehydroepiandrosterone (DHEA) and dihydrotestosterone (DHT) – and athletic performance, a correlation also acknowledged by WADA as DHT is a banned performance-enhancing substance (2018: 95–96).

In its judgement, the CAS panel ruled in favour of continuing to use testosterone as the distinguishing factor to regulate entry into women's athletics, given the agreement between all experts that this hormone was a significant determinant, even if not the only determinant of athletic performance. When considering other factors, the panel noted that there was insufficient evidence to establish the magnitude of advantages afforded by these factors, which in some cases was merely ‘theoretical’ (Semenya & ASA v. IAAF, 2018: 88–91). CAS panel judged that the case rested not on determining if there was a distinct male and female range of testosterone; rather, it rested on whether there was sufficient scientific evidence to prove female athletes with hyperandrogenism enjoyed athletic advantages over their competitors of a magnitude sufficient to subvert the possibility of fair competition (2018: 141). While acknowledging the significant critiques of Handelsman and BG 17, the panel noted that it found the conclusions drawn in these papers to be ‘persuasive’. This, in conjunction with the overrepresentation of 46XY DSD female athletes in elite sport, led the panel to rule in favour of retaining the regulations (Semenya & ASA v. IAAF, 2018: 81).

The contrasting, irreconcilable, conceptualisations of testosterone – as a potent biochemical causal agent that functions unidirectionally, versus as a hormone caught up in a complex biocultural network which impacts and is impacted by other elements – expose the indeterminacy inherent to the process of knowledge production. The standards by which IAAF/WA's evidence was judged to be ‘persuasive’ in comparison to the evidence presented by Semenya's experts are not made explicit by CAS. The IAAF/WA's evidence rests on the underlying conception of testosterone as the fundamental agent that superseded other factors in determining both sexual development and athletic advantages. This fits with the currently dominant understanding of biochemical agents as the key determiners of differential sexual development, which marks a shift from focus on the gonads as the seat of sexual differentiation (Dreger, 1998; Roberts, 2007). Persuasiveness, then, is implicitly determined by the coherence of the evidence presented with the dominant discursive construction of sex/gender differences and sexual development, and the authority accorded to the testimony presented by clinical and medical experts representing the IAAF/WA, relative to other experts. First by judging IAAF/WA's policy-making processes to be outside the ambit of its purview, and then by according legal authority to the evidence presented by the IAAF/WA in support of the policy – even as this evidence is contested – CAS panel's ruling enables the IAAF/WA to continue to govern athletes based on policies that rely on the norms produced by the human sciences, giving it the appearance of merely enforcing the ‘true order of things’ and effacing the exercise of power inherent in these policies.

Arguing for ‘dignity, privacy and equality’: Mobilising the Human Rights Framework

Caster Semenya's appeal held that the DSD Regulations contravened not just the ‘IAAF Constitution, the Olympic Charter, the laws of Monaco’ but also violated the ‘universally recognised fundamental human rights’ (2018: 2). The Amicus Curiae filed by the Office of High Commissioner for Human Rights and expert testimonies also concurred that the DSD Regulations were likely in breach of the UN Declaration of Human Rights (2018: 57, 76). The IAAF/WA responded to these claims by stating that though it was committed to ‘non-discrimination’, it was still ‘a private body, not a state body [and] therefore not legally subject to human rights instruments such as the UNDHR or the ECHR’ (2018: 74). Lambelet Coleman, Professor of Law at Duke Law School, also confirmed that ‘[a]s the law currently stands, the IAAF is not formally subject to international human rights law’ (2018: 103).

CAS's judgement in this regard noted that while ‘there are important rights to equality and freedom from discrimination, including in sport’, the information in the Amicus Curiae was not sufficient to determine whether Human Rights laws applied to sports governing bodies (Semenya & ASA v. IAAF, 2018: 145). Faced with the ‘conflicting rights concerning the rights of female athletes who do, and do not, have DSD’ (Semenya & ASA v. IAAF, 2018: 145), the CAS panel, in its judgement, justified the discrimination inherent in the regulations as necessary to protect the rights of women athletes who do not have DSDs.

Apart from practical problems of enforcement, this case highlights the deeper issues with the underlying conception of human rights as the polar limit to the exercise of power. The familiar paradoxical situation confronting those claiming human rights from the State – where the State is both the guarantor of these rights and the one against whose actions these rights are claimed – is played out here when athletes claim rights from the IAAF/WA (Golder, 2015; Cartland, 1992). While human rights are conceived of as natural, inalienable rights inhering in the individual (United Nations, 1948), these rights are, in fact, the product of political activity and are conferred on individuals as recognised members of a political community (Arendt, 1962; Cartland, 1992). Claiming these rights requires one to be recognisably human: ‘to be a subject at all requires first complying with certain norms that govern recognition – that make a person recognizable’ (Butler, 2009: iv). On the basis of the norms that govern the recognition of female subjects within the domain of athletics, women with hyperandrogenism are rendered unrecognisable as subjects endowed with rights. This lack of recognition leads to the difficulties – well-documented in extant legal scholarship – in using gender non-discrimination laws to protect the interests of women with DSDs, who are not always seen as rightfully belonging to the category of women who are deserving of protection (Zaccone, 2020; Larson, 2011).

Conclusion

Legal challenges against the eligibility regulations – premised on a juridical model of power where individual rights and freedoms are seen as setting limits to the exercise of power and checking its abuses – are inadequate to challenge the exercise of disciplinary power, which is heterogenous, decentralised and functions primarily through the production of knowledges and subjectivities rather than through prohibitory laws and repression (Foucault, 1980; 1975/1995). CAS panel's final ruling in the case illustrates the reciprocal relationship between legal and disciplinary mechanisms of power: CAS limits itself from judging the IAAF/WA's policy-making processes and accords legal sanction to the scientific evidence used by the IAAF/WA in support of its policies. Given the underlying construction of women with hyperandrogenism as categorically different from ‘normal’ women, the discrimination inherent in the regulations is judged to be necessary for fair competition in women's athletics events.

The normalising disciplinary power exercised over athletes cannot be adequately countered by staking a claim to human rights. Following from Arendt's observation that the implementation of human rights depends on the prior recognition of the subject's ‘right to have rights’ (1962: 296), more fundamental than the legal claim to rights is the questioning of how ‘forms of meaning and discourse render certain agents illegible as the kind of bodies that demand protection?’ (Feola, 2014: 132; cf. Butler, 2004). Limited by the very ‘terms of recognition … [which] condition in advance who will count as a subject, and who will not’ (Butler, 2009: iv), women with hyperandrogenism are not seen as rights-bearing subjects, but as threats to be addressed through policy measures, and the exercise of normalising medical power over their bodies – with potentially harmful consequences – comes to be accepted and seen as necessary to ensure the interest of normal female athletes. The ultimate failure of the legal challenges to have the eligibility regulations reconsidered highlights the importance of analysing and challenging the underlying discursive formation – which cuts across sports policies, medical knowledge and media – that produces legitimate female athletes at the same time that it produces ‘female athletes with hyperandrogenism’ and ‘women with DSDs’ as threats, as those who are ‘illegible as the kind of bodies that demand protection’ (Feola, 2014: 132).

Footnotes

Declaration of conflicting interest

The author declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.

Funding

The author disclosed receipt of the following financial support for the research, authorship, and/or publication of this article: This paper is part of the doctoral dissertation submitted to the University of Auckland. There is no funding to declare.

ORCID iD

Sinchana Appachoo

Notes

References

Archibald

(2019) Transgender and intersex sports rights. Virginia Journal of Social Policy & the Law 26(3): 246–276.

Arendt

(1962) The Origins of Totalitarianism (2nd ed.). Cleveland and New York: Meridian Books.

Baddeley

(2020) The extraordinary autonomy of sports bodies under Swiss law: Lessons to be drawn. The International Sports Law Journal 20: 3–17.

Batelaan

Abdel-Shehid

(2020) On the Eurocentric nature of sex testing: The case of Caster Semenya. Social Identities 27(2): 146–165.

Bederman

(1995) Manliness & Civilization: A Cultural History of Gender and Race in the United States, 1880–1917. Urbana and Chicago: University of Chicago Press.

Bermon

Garnier

(2017) Serum androgen levels and their relation to performance in track and field: Mass spectrometry results from 2127 observations in male and female elite athletes. British Journal of Sports Medicine 51(17): 1309–1314.

Butler

(2004) Undoing Gender. London: Routledge.

Butler

(2009) Performativity, precarity and sexual politics. AIBR, Network of Iberoamerican Anthropologists 4(3): i–xiii.

Bowman-Smart

Savulescu

O’Connell

, et al. (2024) World athletics regulations unfairly affect female athletes with differences in sex development. Journal of the Philosophy of Sport 51(1): 29–53.

10.

Caillois

(1961) Man, Play and Games (M. Barash, Trans.). Urbana and Chicago: University of Illinois Press. (Original work published 1958).

11.

Camporesi

Hämäläinen

(2020) Open categories in sport: One way to decrease discrimination. Sport, Ethics and Philosophy 35(3): 461–477.

12.

Camporesi

Hämäläinen

(2021) The construction of categories in sport: Unfair advantages, equality of opportunity and strict attainability. European Journal of Sport Science 21(11): 1492–1499.

13.

Cartland

JDC

(1992) Hannah Arendt and human rights [Master’s thesis, Loyola University Chicago]. https://ecommons.luc.edu/cgi/viewcontent.cgi?article=4911&context=luc_theses

14.

Casini

(2011) The making of a Lex sportiva by the Court of Arbitration for Sport. German Law Journal 12(5): 1317–1340.

15.

Cavanagh

Sykes

(2006) Transsexual bodies at the Olympics: The international Olympic committee’s policy on transsexual athletes at the 2004 Athens summer games. Body & Society 12(3): 75–102.

16.

Connell

(1987) Gender and Power: Society, the Person, and Sexual Politics. California: Stanford University Press.

17.

Dean

(2010) Governmentality: Power and Rule in Modern Society (2nd ed.). London: Sage.

18.

Dean

(2013) The Signature of Power: Sovereignty, Governmentality and Biopolitics. London: Sage, 163–193.

19.

Dreger

(1998) Hermaphrodites and the Medical Invention of Sex. Cambridge, MA: Harvard University Press.

20.

Dutee Chand v. Athletics Federation of India (AFI) & International Association of Athletics Federations (IAAF). CAS 2014/A/3759, Arbitral Award. (July 24, 2014). https://www.doping.nl/media/kb/3317/CAS%202014_A_3759%20Dutee%20Chand%20vs.%20AFI%20%26%20IAAF%20%28S%29.pdf

21.

Ehle

Guiaia

(2016) Bundesgerichtshof, Az. KZR 6/15, Pechstein v. International Skating Union (ISU), 7 June 2016. In: Duval

Rigozzi

(eds) Yearbook of International Sports Arbitration 2016. Hague: T.M.C. Asser Press, pp.415–427.

22.

Erikainen

(2020) Gender Verification and the Making of the Female Body in Sport: A History of the Present. London: Routledge.

23.

Feola

(2014) Norms, vision and violence: Judith Butler on the politics of legibility. Contemporary Political Theory 13(2): 130–148. https://doi.org/10.1057/cpt.2013.15

24.

Fausto-Sterling

(2000) Sexing the Body: Gender Politics and the Construction of Sexuality. New York: Basic Books.

25.

Foucault

(1978) The History of Sexuality: An Introduction (Vol. 1) (R. Hurley, Trans.). New York: Pantheon Books. (Original work published 1976).

26.

Foucault

(1982) The subject and power. Critical Inquiry, 8(4): 777–795. https://www-jstor-org-443.web.bisu.edu.cn/stable/1343197

27.

Foucault

(1995) Discipline and Punish: The Birth of the Prison (2nd ed.) (A. Sheridan Trans.). New York: Vintage Books. (Original work published 1975).

28.

Foucault

(2000) “Truth and power”. In: Faubion

(ed) Power: Essential Works of Foucault, 1954–1984. vol. 3 New York: New Press, pp. 111–133.

29.

Foucault

(2003) 14 January 1976 (M. David Trans.). In Bertani

Fontana

(Eds.), Society must be defended: Lectures at the College de France, 1975–76. New York: Picador, pp. 23–42.

30.

Foucault

(2009) 1 March 1978 (G. Burchell Trans.). In Senellart

(ed.) Security, Territory, Population: Lecture at the College de France, 1977–78 (2nd ed.) London: Palgrave Macmillan, pp. 191–226.

31.

Foucault

Gordon

(1980)  Power/knowledge: Selected Interviews and Other Writings, 1972–1977. New York: Pantheon Books.

32.

Franklin

Ospina Betancurt

Camporesi

(2018) What statistical data of observational performance can tell us and what they cannot: The case of Dutee Chand v. AFI & IAAF. British Journal of Sports Medicine 52(7): 420–421.

33.

Golder

(2015) Foucault and the Politics of Rights. California: Stanford University Press.

34.

Golder

Fitzpatrick

(2009) Foucault’s Law. London: Routledge.

35.

Handelsman

Hirschberg

Bermon

(2018) Circulating testosterone as the hormonal basis of sex differences in athletic performance. Endocrine Reviews 39(5): 803–829.

36.

Heggie

(2010) Testing sex and gender in sports; reinventing, reimagining and reconstructing histories. Endeavour 34(4): 157–163.

37.

International Association of Athletics Federations. (2011, May 1). IAAF regulation governing eligibility of females with hyperandrogenism to compete in women's competition. Retrieved December 2, 2022, from https://www.sportsintegrityinitiative.com/wp-content/uploads/2016/02/IAAF-Regulations-Governing-Eligibility-of-Females-with-Hyperandrogenism-to-Compete-in-Women%E2%80%99s-Competition-In-force-as-from-1st-May-2011-6.pdf

38.

International Association of Athletics Federations. (2018, April 23). Eligibility regulations for the female classification (Athletes with differences of sex development). Retrieved December 2, 2024, from http://www.femede.es/documentos/IAAF_Eligibility_Regulations_DSD-2018.pdf

39.

International Association of Athletics Federations. (2019). IAAF 2019 Constitution. Retrieved December 2, 2024, from https://www.worldathletics.org/download/download?filename=d8a4e154-7244-4c53-a3cf-55faad26d7ab.pdf&urlslug=2019%20IAAF%20Constitution

40.

International Olympic Committee. (2016). Code of Ethics, 2016. https://stillmed.olympic.org/media/Document%20Library/OlympicOrg/IOC/What-We-Do/Leading-the-Olympic-Movement/Code-of-Ethics/EN-IOC-Code-of-Ethics-2016.pdf

41.

International Olympic Committee. (2019). Olympic charter, 2019. International Olympic Committee. https://library.olympics.com/Default/doc/SYRACUSE/208117/olympic-charter-in-force-as-from-26-june-2019-international-olympiccommittee?_lg=en-GB

42.

International Olympic Committee Medical Commission. (2003). Statement of the Stockholm consensus on sex reassignment in sports. Retrieved December 22, 2022, from https://stillmed.olympic.org/Documents/Reports/EN/en_report_905.pdf

43.

Johnston

(2020) Transgender and intersex athletes in single-sex sports. Journal of Law and Medicine 28(1): 197–213.

44.

Jordan-Young

Karkazis

(2019) Testosterone: An Unauthorized Biography. Cambridge, MA: Harvard University Press.

45.

Karkazis

Jordan-Young

(2012, June 17). You say you’re a woman? That should be enough. The New York Times. https://www.nytimes.com/2012/06/18/opinion/you-say-youre-a-woman-that-should-be-enough.html

46.

Karkazis

Jordan-Young

Davis

, et al. (2012). Out of bounds? A critique of the new policies on hyperandrogenism in elite female athletes. The American Journal of Bioethics,12(7), 3–16.

47.

Karkazis

Jordan-Young

(2018) The powers of testosterone: Obscuring race and regional bias in the regulation of women athletes. Feminist Formations 30(2): 1–39.

48.

Kidd

(2013a) The global sporting legacy of the Olympic movement^†. Sport in Society 16(4): 491–502.

49.

Kidd

(2013b) The myth of the Ancient Games. Sport in Society, 16(4): 416–424. https://doi.org/10.1080/17430437.2013.785753

50.

Kidd

(2018) Towards responsible policy-making in international sport: Reforming the medical-scientific commissions. Sport in Society 21(5): 773–787.

51.

Larson

(2011) Intersexuality and gender verification tests: The need to assure human rights and privacy. Pace International Law Review 23(1): 215–248.

52.

Lenskyj

(2018) Sport exceptionalism and the Court of Arbitration for Sport. Journal of criminological research. Policy and Practice 4(1): 5–17.

53.

Lindholm

(2019) The Court of Arbitration for Sport and its Jurisprudence: An Empirical Inquiry into Lex Sportiva. New York: Springer. https://doi.org/10.1007/978-94-6265-285-9

54.

Loland

(2021) Classification in sport: A question of fairness. European Journal of Sport Science 21(11): 1477–1484.

55.

MacKinnon

(1987) Feminism Unmodified: Discourses on Life and Law. Cambridge, MA: Harvard University Press, 32–45.

56.

Magubane

(2014) Spectacles and scholarship: Caster Semenya, intersex studies, and the problem of race in feminist theory. Signs: Journal of Women in Culture and Society 39(3): 761–785.

57.

Mangle

(2021) The Swiss federal supreme court upholds the socially constructed gender binary on female athletes with intersex traits. Tulane Journal of Law and Sexuality: A Review of Sexual Orientation and Gender Identity in the Law 30: 191–202.

58.

Miller

Rose

(2008) Governing the present: Administering economic, social and personal life. Polity.

59.

Munro

(2010) Caster Semenya: Gods and monsters. Safundi 11(4): 383–396.

60.

North

(2009, August 19). Coach: Gender concerns reasonable because runner “looks like a man.” Jezebel. https://jezebel.com/coach-gender-concerns-reasonable-because-runner-looks-5340960

61.

Oudshoorn

(1994) Beyond the Natural Body: An Archeology of Sex Hormones. London: Routledge.

62.

Nyong’o

(2010) The unforgivable transgression of being Caster Semenya. Women & Performance: A Journal of Feminist Theory 20(1): 95–100.

63.

Pielke

Jr. Tucker

Boye

. (2019). Scientific integrity and the IAAF testosterone regulations. The International Sports Law Journal, 19(1–2), 18–26.

64.

Pieper

(2014) Sex testing and the maintenance of western femininity in international sport. The International Journal of the History of Sport 31(13): 1557–1576.

65.

Pieper

(2016) ‘Preserving la difference’: The elusiveness of sex-segregated sport. Sport in Society 19(8–9): 1138–1155.

66.

Pike

Hilton

(2025) Sex, fairness and the world athletics regulations: A reply to Bowman-Smart et al. Journal of the Philosophy of Sport 52(3): 1–18. https://doi.org/10.1080/00948705.2025.2522809

67.

Posbergh

(2022) Defining ‘woman’: A governmentality analysis of how protective policies are created in elite women’s sport. International Review for the Sociology of Sport 57(8): 1350–1370. (Original work published 2022).

68.

Posbergh

Clevenger

(2022) Beyond Caster as object? Examining media constructions of Caster Semenya through decolonial thinking. Qualitative Research in Sport, Exercise and Health 14(6): 843–860.

69.

Roberts

(2007). Messengers of sex: Hormones, biomedicine and feminism. Cambridge University Press. https://doi.org/10.1017/CBO9780511489174

70.

Rogol

Pieper

(2017) Genes, gender, hormones, and doping in sport: A convoluted tale. Frontiers in Endocrinology 8: 51.

71.

Schultz

(2011) Caster Semenya and the “question of too”: Sex testing in elite women’s sport and the issue of advantage. Quest (Grand Rapids, Mich ) 63(2): 228–243.

72.

Semenya

C. M.

& Athletics South Africa v. International Association of Athletics Federations. CAS 2018/O/5794 & CAS 2018/O/5798, Arbitral Award (Apr. 30, 2019). https://www.tas-cas.org/fileadmin/user_upload/CAS_Award_-_redacted_-_Semenya_ASA_IAAF.pdf

73.

Smart

(1990) Law’s power, the sexed body, and feminist discourse. Journal of Law and Society 17(2): 194–210.

74.

Sőnksen

Bavington

Boehning

, et al. (2018) Hyperandrogenism controversy in elite women’s sport: An examination and critique of recent evidence. British Journal of Sports Medicine 52(23): 1481–1482.

75.

Young

&  Wamsley

K. B

. (2005). Global Olympics: Historical and sociological studies of the Modern Games. Elsevier JAI. 

76.

Zaccone

(2010) Policing the policing of intersex bodies. Brooklyn Law Review 76(1): 385–438. http://www.athletics.org.zalpdf/