Intersex Olympic Silver Medalist Christine Mboma fails to qualify for Paris in her country's Olympic trials

But going by the Regulations alone as they’re written doesn’t give a complete and most accurate picture. WA’s current DSD Regulations were drafted more broadly than they're actually being applied in real life.

WA is apparently applying the Regulations as narrowly as possible so as to stay in good stead with CAS, to stave off more lawsuits, and to be as fair as possible to athletes with DSDs.

When the CAS ruled on the Semenya case in 2019, it said in its decision (dated April 30, 2019) that it was approving the new DSD regulations on the condition that they would only be applied to DSD athletes who met very strict criteria, starting with having the standard 46, XY chromosome pattern found in most males.

On May 1 2019, the IAAF published a briefing notes and a set of Q&As explaining how they were applying the regulations IRL:

Which athletes fall under the DSD regulations?
The DSD regulations only apply to individuals who are:
legally female (or intersex) and who have one of a certain number of specified DSDs, which mean that they have [all of the following]:
- male chromosomes (XY) not female chromosomes (XX);
- testes not ovaries;
- circulating testosterone in the male range (7.7 to 29.4 nmol/L) not the (much lower) female range (0.06 to 1.68 nmol/L); and
- the ability to make use of that testosterone circulating within their bodies (i.e., they are ‘androgen-sensitive’).

worldathletics.org

IAAF publishes briefing notes and Q&A on Female Eligibility Regulations | PRESS-RELEASE | World Athletics

Court of Arbitration for Sport (CAS) decision upholding IAAF Eligibility Regulations for the Female Classification (Athletes with Differences of Sex Development)

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Relevant excerpts from the Summary of the CAS decision in the Semenya case dated April 30, 2019 and released on May 1 2019:

During the course of the proceedings before the CAS, the IAAF explained that the Regulations are limited to “46 XY DSD” – i.e. conditions where the affected individual has XY chromosomes [and]

testosterone levels well into the male range, the normal adult male range, rather than the normal adult female range

and who experience a “material androgenizing effect” from that enhanced testosterone level.

The only way a person can have natural testosterone levels well into the male range and still be healthy and fit enough to be competing at a high level in sports is to have testes, aka male gonads. And to have testes, a person has to have male genetics.

In the unlikely event that someone with ovaries and female genetics were to have T levels in the male range, she’d be really ill due to a life-threatening cancerous tumor.

You're right that the Regulations as written leave room for an affected athlete to have a karyotype other than 46,XY such as mosaicism. But for an athlete to meet all the criteria, most of the athlete’s cells would have to have the SRY gene. Because that’s the only way that the athlete would have developed male gonads (testes) that produce male levels of testosterone, and also would have enough male androgen receptors in good working order to have the kind of physiological response to testosterone typical of males.

Similarly, the Regulations do leave room for an affected athlete to have ovotesticular DSD and mosacisism. But for the rules to apply, an athlete with OT DSD would have to have enough normally developed and functioning testicular tissue to produce testosterone in the normal male range. To do that, most of the nucleated cells in relevant parts of the athlete's body would have to have the SRY gene.

Whilst athletes with PAIS are included under the Regulations, it's highly doubtful that WA would apply the regulations unless they were dead certain that an athlete with PAIS has enough male androgen receptors in good working order to be able to utilize testosterone as males customarily do. The CAS decision in the Semenya case was very clear that the issue at the heart of the 2019 DSD regualtions was not how athletes with female bodies (genes, anatomy and physiology) respond to male levels of testosterone they might naturally make due to a vanishingly rare and life-threatening disorder like a T-secreting tumor, but how athletes competing in women's events with male bodies respond to the male levels of T they make in the normal, commonplace male way - meaning in their testes.

You're trying really hard to spin things, but it's not working. Mboma IS a biological male but can't have penetrative sex because he has a birth defect that caused his penis not to grow. But he's still male.

The fact that someone thought he was a female when he was born because of the lack of a penis just means that someone made a mistake. It doesn't mean that he is female. Give it up already.

No one is expecting Mboma to "identify as male" immediately or ever. It's just that since sports categories are based on sex, then athletes have to be sorted for the purpose of sports competition based on their actual sex. And the reality is that WA's DSD regulations for women's competiton that have been in force since 2019 only apply to athletes who are biological males yet have been allowed to compete in the female category.

I know you don't like that reality, and you think it's rude and disrespectful for anyone to speak frankly and clearly about the actual sex of athletes like Mboma. But for the sake of fairness to athletes who actually are female - and all the rest of us who are female too - sometimes the truth about the sex of DSD athletes like Mboma has to be spoken about honestly and in plain language without all the fudging, obfuscating and lying.

The 2019 CAS decision in the Semenya case bends over backwards to avoid saying forthrightly what the IAAF/WA said in no uncertain terms during the hearings, which is that the DSD regulations apply only to athletes with DSDs competing in the female category who are male:

the DSD Regulations create restrictions that are targeted at a group of individuals who have certain immutable biological characteristics (namely a 46 XY DSD coupled with a material androgenising effect arising from that condition), and which do not apply to individuals who do not have those characteristics.

the reason for the separation between male and female categories in competitive athletics is ultimately founded on biology rather than legal status. The purpose of having separate categories is to protect a class of individuals who lack certain insuperable performance advantages from having to compete against individuals who possess those insuperable advantages.

In this regard, the fact that a person is recognised in law as a woman and identifies as a woman does not necessarily mean that they lack those insuperable performance advantages associated with certain biological traits that predominate in individuals who are generally (but not always) recognised in law as males and self-identify as males.

It is human biology, not legal status or gender identity, that ultimately determines which individuals possess the physical traits which give rise to that insuperable advantage and which do not.

it follows that it may be legitimate to regulate the right to participate in the female category by reference to those biological factors

In other words, the bottom line here is the actual sexed bodies of the affected DSD athletes - not their gender identity/sense of self, the sex stated on their current government-issued identity documents, the sex they were thought to be as babies and pre-pubescent children, or how the athletes were raised and socialized growing up.

https://www.saflii.org/images/cassummary.pdf

On 5 July 2021, just days after the news broke that Mboma and Masilingi were subject to WA’s 2019 DSD regulations and thus wouldn’t be allowed to compete in the women’s 400m at the Tokyo Olympics, Andy Brown of Sports Integrity Initiative published a piece that attempted to establish the facts. At that time, much of the media was claiming that Mboma and Masilingii were the latest in a long line of fast black African female runners unfairly singled out and sanctioned by World Athletics for having "elevated natural testosterone."

It has been widely reported that the DSD Regulations seek to exclude “women” whose testosterone levels exceed 5nmol/L from international events run between 400m and one mile in World Athletics’ female category.

The truth is that the DSD Regulations are not really about testosterone at all. They do measure testosterone, but this is to weed out athletes whom World Athletics considers have developed an advantage over time due to being “biologically male.”

As such, the DSD Regulations label the two 18 year old Namibians as 46 XY karyotype, or “biologically male.”

The Regulations don’t specifically state that they only apply to 46 XY athletes – to do so would be politically problematic.

But World Athletics has confirmed that the DSD Regulations only apply to the 46 XY karyotype.

Brown said a World Athletics spokesperson told Brown/SII in an email that all athletes then being held to the new rules were XY:

“These 46 XY athletes have DSDs which mean that their testes are internal, and their lack of male external genitalia caused them to be assigned a female gender rather than male gender at birth. From puberty onwards, their internal testes produce the same levels of testosterone (7.7 to 29.4 nmol/L) as are produced 46 XY males who do not have DSDs. And provided they have functioning androgen receptors, and so their bodies are able to utilise that testosterone (another condition that has to be met for the DSD Regulations to apply), those male testosterone levels give them exactly the same physiological advantages over 46 XX females as the 46 XY males without DSDs enjoy.”

Brown said he also spoke to British barrister Jonathan Taylor, one of the attorneys who authored the Regulations, and Taylor told him:

“The DSD Regs only apply to Relevant Athletes, i.e. athletes who meet the criteria set out at 2.2(a). And only 46 XY DSD athletes will meet those criteria.”

As confirmed by World Athletics above, the DSD Regulations only apply to 46 XY athletes. As such, their application has outed Caster Semenya, Christine Mboma, Beatrice Masilingi, Francine Niyonsaba, and Margaret Wambui as 46 XY DSD, or ‘biologically male’. Through the application of its Regulations, World Athletics is literally labelling young athletes who consider themselves female as male.

Brown ended his piece appearing to agree with your view that it's offensive, disrespectful and bad form for WA and anyone else to refer to the athletes subect to the DSD rules in place since 2019 as male. Noting that the European Court of Human Rights had published 10 questions to take into account in considering whether WA's DSD Regulations violate Semenya’s human rights, he wrote:

The first of these [questions] asks if Semenya has "suffered treatment contrary to her human dignity, her physical and mental integrity, and her social and gender identity." It is hard to see how the answer could be anything other than the affirmative.

sportsintegrityinitiative.com

DSD Regulations call out athletes as biologically male - Sports Integrity Initiative

Andy Brown

Last week, two Namibian athletes were excluded from the Tokyo 2020 Olympics after being assessed under the DSD Regulations of World Athletics. It has been widely reported that the DSD Regulations (PDF below) seek to exclude ‘...

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Wrong. You’re pulling claims right out of your rear. Presumably “most” means at least a majority. Do you have a reference to back that claim?

Not that all this matters because your whole modus operandi is to read an intent of a purist binary definition of sex in WA’s documents, however all of their eligibility rules related to intersex and trans are based on performance fairness, not developing a binary classifier for sex. They acknowledge these are women and female (yes, “female”).

Performances achieved by excessive testosterone levels way beyond what is the norm for a cis gendered female giving an unfair advantage and should never have been allowed to compete with such levels. The ship has been righted.

I am baffled why many posters here refer to DSD athletes as men or “biologically male”. They are intersex, which is neither male nor female (or both male and female, depending how you look at it). They probably have ambiguous genitalia and internal testes (to produce all that testosterone) plus androgen receptors to make use of it. This confers male testosterone advantages on them, but it doesn’t make them male.

Biological sex isn’t a discrete binary; it is a spectrum between female and male, with vast majority of individuals clustered on either end but enough cases in between to make things complicated. Athletic orgs necessarily oversimplify things by making sports divisions binary, but it doesn’t reflect the reality. Unfortunately it is not practical to have a separate category for DSD/intersex athletes (who for some unknown genetic reasons appear to be more prevalent in sub-Saharan Africa). Therefore a reasonable and fair thing to do is to ban them from competing against biological females unless they lower their testosterone into typical female range.

You really don’t understand the definition of fact. All of what you wrote is your personal opinion, and highly counterfactual at that.

It’s easy to be good at something when you have an unfair advantage. Admittedly, it’s not her fault and she may not have realised that she had an unfair advantage, but the reality is that she was only good because of it. It must come as quite a shock to some of these intersex women who thought they were winning because of talent and hard work. Unfortunately, they were born with an unfair advantage that 99% of women do not have. There needs to be support for intersex women, as the ones who are confronted with the reality that their success is built on a lie do not seem to be able to accept it. But there is hope: they can join the legions of hobby joggers who run because we enjoy it.

The thing is it doesn't matter if they are 2 seconds ahead, 0.2 seconds ahead or 2 seconds behind. It matters if it's fair or not. If someone is biologically male or has high levels of testosterone it's obviously not fair for them to compete against women. If someone has been through male puberty it's obviously not fair for them to compete against women. People just want things to be fair. The advantages are vast - which is why you see such a huge difference between the performances of men and women. It's why high school boys can be better than professional adult female track runners with Olympic golds. The physical advantages are numerous. If someone has testosterone well over the limit then how is that OK?

I'm sorry to hear of her story and wish her well. I hope things turn out OK for her.

If they both have elevated testosterone levels it's unfair for them to compete though. If their testosterone levels are higher than the limit set for women how can you say that it's OK for them to compete?

Yes, I am sure intersex athletes such as Mboma, Semenya, or Niyonsaba - who have vaginas, not penises - are aware that they have XY chromosomes when they are young athletes.

Get a grip. Up until a couple of years ago, no one on this site even knew what intersex was (and going by your posts, it seems some still don’t.)

A couple of years ago? Semenya won the first World title 15 years ago.

Santhi Soundarajan got her medal stripped three years before that.

Are you saying that someone who competes at an international elite level could not have an advantage if he doesn't medal? That's kind of ridiculous considering how many women he's beaten along the way just to get to the national stage.

Perhaps Lance Armstrong didn't really have an advantage since he didn't always win, either.

There is something so grotesque about the way this post was written.

I believe that it is unfair for intersex athletes to compete in the women's category. I don't have all the answers though. And one thing I will say is calling it a "relief" that a young person now experiences fatigue and physique changes due to a treatment that she is mandated to take in order to compete, is very inhumane.

Someone below mentioned the hardships Christine endured. She's not some rich girl who went to college on an NCAA scholarship and graduated with an engineering degree so it's easy peasy to walk away from the sport. It's way different when the stakes are this high as they are for Christine.

Learn to use post quotation and quote my words exactly. No idea what you are talking about.