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Here is the full (redacted) #semenya decision. All 632 points: tas-cas.org/fileadmin/user… In my mind, building up to the case, I had “framed” it as an issue of biological principle vs actual evidence for advantage. A vs B. The decision is framed a similar way in many respects (1/…)
As you go through it, you’ll see one side (IAAF) arguing heavily for biological principles of testosterone & performance, theory for men vs women, protection of women’s sport. It’s difficult to reject these. They are solid, and bring the debate to a men vs women platform.
But you also see the other side (Semenya/ASA) arguing that the issue should be framed as “Women with DSD vs women without”. This in turn invites questions of “Where is the evidence? Can the advantage be quantified? How large is it?”. This was the mandate set by CAS in 2015 (3/)
Way back in Jan, when pre-trial submissions were done, I remember thinking it would come down to which of these - principle or evidence - mattered more to CAS. Would biological theory outweigh the lack of evidence & poor evidence? Or would CAS, as in 2015, prioritise data? (4/)
It was like a CAS-law equivalent of “home ground advantage”. Who gets to “play at home?” If the principle was given more weight, then IAAF had a stronger position. If it came down to evidence, then Semenya was stronger. I guess the final decision answers this question! (5/)
In this regard, 551 & 552 stand out. CAS saw, recognised & accepted that good regulatory policy needs good science, & that this was “laudable”, but then say it’s not their place to assess it. I’m not sure how you can divorce the outcome (the regs) from the process (the research)
This was always the ‘tension’ for me. The IAAF’s theoretical case (Points 285 to 292 in particular) was strongly made, well argued. But the evidence & process supporting the regulations was, and I’m being kind, empty & utterly inadequate to justify the harm it invites on people
This is why they had to downplay the evidence & amplify the theory, whereas Semenya/ASA played up the evidence & avoided the theory. So the verdict ends up looking like two monologues, rather than a debate where A & B directly address one another. Frustrating process (8/)
Another major factor that I believe drove the verdict (compared to 2015 Chand) is best summed up in this point, highlighting how “trans fear” has impacted DSD attitudes & regulation. Because T levels link the 2 policies, made for an ‘easy’ conflation to frame the issue as M vs W
You see this often. For example, here are 3 paragraphs where DSD is juxtaposed with “biologically male” or “transgender male-to-female” athletes in the same sentence - the messaging is clear. It’s about “men vs women”, which, as I said above, is how the IAAF needed to frame it
It’s not surprising then, that we’ve ended up is a situation where the IAAF has a policy for DSDs that is basically identical to its policy for transgender MTF athletes. It now treats them the same way (despite protestations otherwise). It is no longer about the T, but the XY
As mentioned, the argument they made in this regard was expected, because any arguments they tried with evidence would collapse instantly. So they hammered the theoretical one, framing DSDs as males. And I must say they made this argument very well, much better than in 2015
What this ultimately enabled them to do was argue that #semenya & other DSD athletes are males. Just ones who “are not as good as the best males”. This, in turn, shifts the debate towards male vs female physiology, and it’s really hard to dispute that, right? 10-12% difference!
So ultimately, the IAAF “played at home”, and the requirement to quantify the magnitude of advantage that CAS had prioritised in the Chand case of 2015 no longer applied. Instead, theory & principle won, and all those things like the poor evidence, the medical harm etc fell away
The quality of evidence could thus be acknowledged as poor. Risk of harm could be recognised. The efficacy of the drugs could be questioned. But stacked up against a (convincing) argument for the protection of women’s sport from DSDs (& trans MTF, by conflation), it fell short
Anyway, that’s about as much justice as I can do a 632 page legal decision here on twitter! Hugely complex case, yes. No answer that satisfies everyone. But on issues of process, I believe the IAAF fell so short of the mark that AT BEST, they should’ve had to go back to square 1.
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