Semenya racing for justice after study correction
SOME people don’t like the concept of change. It’s often sudden, throws you out of your comfort zone, and it is the fear of the unknown that is most concerning.
When an 18-year-old Caster Semenya lined up for the 800 metres at the 2009 world championships in Berlin, she had already set the world lead time of 1:56.72 in winning the African junior championship title, and duly went on to become world champion in Germany with another SA record of 1:55.45.
Those performances resulted in controversial gender verification tests requested by the International Association of Athletics Federations (IAAF) – which is now World Athletics – due to Semenya’s dramatic improvement that led to suspicions of drug use.
The young lady from Limpopo was eventually cleared and went on to excel on the track, winning three gold medals at the world championships and two more at the Olympic Games in 2012 and 2016.
But it’s almost as if World Athletics wanted to stop Semenya from dominating the 1 500m as well when they introduced new rules for female athletes with naturally occurring high testosterone levels, as the South African had claimed a bronze medal at the 2017 world championships to go with her 800m gold.
Such runners were described as athletes with differences in sexual development (DSD), who needed to lower their testosterone levels through medication and/or surgery to below five nanomoles per litre of blood (5nmol/L) to compete in distances from 400m to the mile.
Of course, Semenya refused to go that route, and turned to the courts. But she was unsuccessful in trying to have the new rules overturned at the Court of Arbitration for Sport (CAS) and the Swiss Supreme Court, and her last chance of success is now at the European Court of Human Rights in Strasbourg, France.
Until last week, that is. The British Journal of Sports Medicine issued a correction to a 2017 study that played a major part in World Athletics’ new rules, saying that their findings about the impact that high testosterone levels in female athletes had on their performance levels were “exploratory” and “could have been misleading”.
And it is the timing of the correction – weeks after the end of the Tokyo Olympics – that rankles most with Semenya’s lawyer, Greg Nott of the Norton Rose Fulbright firm in Johannesburg.
Multiple Olympic and world champion an ‘icon’ for SA
It’s almost as if it was a deliberate ploy to deny Semenya the chance of defending her title in Tokyo.
“The timing is shocking, reprehensible. Unfair, cynical, untoward. Very unprofessional. Imagine me as a lawyer saying to you, I misled you. I would be stripped of my professional ranking,” Nott told Independent Media.
“It’s unbelievable, it’s cynical, it’s misleading, it’s wrong, it’s unfair. And unfair is too kind a word.
“The consequences of not defending the title in our country at this time are enormous. I don’t want to get too political, but we’ve been through hell and back with the third wave of the (Covid-19) pandemic. We’ve been through the KwaZulu-Natal unrest.
“Her bringing back – like Tatjana Schoenmaker bringing back the gold – Caster is an icon. She transcends all races in our country. She is well loved by all South Africans, and by her bringing back a gold would’ve done such greatness for unity in our country.
“I don’t want to overstate this, but the consequences of not allowing her to run, and then post-Tokyo, to then say ‘Oh, by the way, the evidence we relied upon was misleading’ – by the director of World Athletics (Stephane Bermon) is absolutely shocking.”
Nott and the rest of the legal team are considering taking the matter back to the Court of Arbitration for Sport (CAS) in light of the correction issued by the British Journal of Sports Medicine, in a bid to have the DSD regulations declared null and void, which would allow Semenya back on to the track in the 800m.
She attempted to qualify for the Tokyo Olympics in the 5 000m event, but was unable to produce a quick enough time.
Semenya, though, should rightfully be allowed to showcase her natural-born talents in her preferred race – just as other world-class athletes have done over the years.
World Athletics president Sebastian Coe, who has often expressed his support for the DSD regulations, told the BBC at the weekend that the rules “are here to stay”, despite the correction being issued to the study.
“There is 10 years of solid science that underpins the regulations,” Coe said. “I am sorry if there are athletes who have been misled by self interested and conflicted observations often by lawyers. The reality is that the rules are here to stay.”
That may be Coe’s view, but that decision may be taken out of his hands. Nott said Semenya’s case has been given a priority date by the European Court of Human Rights, although it is only likely to be next year.
But in the meantime, going back to the Court of Arbitration for Sport is a possibility, while Nott said the 30-yearold Semenya may also seek “financial damages” from World Athletics due to her effective ban from the 800m event.
“There is a fight here, and it’s not going away. I’ve been on this case for 12 years and I am not giving it up now. In Caster, we’ve got a very strong client. We haven’t got somebody who breaks. So, I don’t want to make myself the hero – the hero really is the client,” Nott said.
“Everything in South Africa is the big picture. You’ve got to see every consequence of an individual or a collective in our country must be seen against the picture of unity, of driving our democracy.
“And people in the (Global) North, or the Rich North, or the White North or whatever, don’t get the picture. We are an emerging nation that relies upon heroes like Caster.
“And to strip (us) of that in such a cynical way – and such a prejudicial way – it bites deeply, given our history of discrimination. It’s like rubbing salt in a sore wound.”