Intersex Initiative: Response on the Mistreatment of Caster Semenya

Response on the Mistreatment of Caster Semenya

Caster Semenya is a South African runner who won the gold medal in the 800 meters at the 2009 World Championships competition. Soon after her victory, others alledged that she may not be a "real" woman, and demanded investigation, despite the fact she was born and raised as a girl and has lived as a woman all of her life. Some media outlets have reported that Semenya had an intersex condition, although the result of the tests have not been officially disclosed.

We have received many emails from our friends about the mistreatment of South African runner Caster Semenya by the media and International Association of Athletics Federations (IAAF). We asked Sally Gross of the Intersex Society of South Africa for some advice as to how to best advocate for the intersex people of South Africa. Her reply is reproduced below with her permission.

Sally Gross writes:

Hi Emi,

I've written a number of articles for the local press since the feeding frenzy in the media broke out. "From the Times" [RTF] was the first of these to be run. The Times in question is a South Africa daily in tabloid format linked to South Africa's The Sunday Times. The Natal Witness, in Pietermaritzburg, Natal, solicited the article attached as "The Witness 2009-08-29". A day before, they re-ran as a single article [PDF] a set of three biographical feature articles about me which they had run in February 2000, and also solicited a feature article from me to give an account of what has happened in my life since then. My first draft of this was monopolised by the two amendments I've drafted and lobbied into South Africa's statute books, one of which I deem to be potentially the most important of my achievements though it has attracted no attention and needs to be given "teeth" by means of publicity and being used. The relevant editor thought it too technical for its readership, and insisted on an article with a focus which was more warm, furry and cuddly. Quite a lot has happened, and I wrote a draft which had to be pruned quite drastically, and which I think lacks the flow of the pre-pruned version in consequence. My final draft is attached for your interest as "Update Feature Article v2". The editor evidently felt that two consecutive paragraphs, one of which is about the Bible, would offend its readers and removed them. What appeared in print with an introduction cobbled together by the assistant editor who drafted the 2000 articles, is attached as "The Witness Bio Update". I also "topped and tailed" the first draft about issues of law, with an into linking it with the Caster Semenya affair, making it deal exclusively with the insertion of definitions into the Promotion of Equality Act, the status quo ante and the implications for the intersexed of the passing of the amendment into law. It needs a paragraph explaining briefly what IS is, and some moderate pruning: 200 to 300 words need to go. The thought was to have something in hand, more-or-less print-ready, for when the results of the tests on Caster Semenya would be released. Though they haven't been released, the breaking of the story implies that that time is now. I'll be drafting a media release in the name of Intersex South Africa, and trying to prune the IS and Law piece later today.

The biographical stuff is attached purely for your interest. The rest bears directly on the Caster Semenya business. I've also been on radio and television, particularly since the Australian newspaper made its allegations about the results of the tests, as has Bernedette Muthien of Engender, head of the NGO under whose aegis ISSA obtained funds to operate as Engender's intersex project until it can become self-sustaining.

The IAAF has not confirmed what was alleged and it is thus hearsay. An element of what is alleged makes little sense to me. The complaints about Caster Semenya which led to the tests referred to her physique, the depth of her voice and to body hair. These characteristics are indicators that, whatever else may be the case, she is certainly not androgen insensitive, and thus AIS is ruled out. CAH would be a major possibility in the event that she is in fact intersexed. The reports allege that she has been found to have no womb or ovaries -- that is feasible. They do not allege that she lacks a vagina, but let's flag that and put it aside for the moment. They do allege that she has testes, presumably in her abdomen, which result in high levels of testosterone: almost three times normal female level (which, whether what is meant is free testosterone or total testosterone, and whether it is the middle of the "normal female range" or the top of it, yields levels which would be deemed to be worryingly low in a man). The claim about internal testes suggests AIS; but this makes no sense. In the event that there is an element of truth it this report, I think it more likely that what is at issue is testicular tissue -- perhaps streak tissue. MGD? Some kind of gonadal dysgenesis is the most likely contingency if there is indeed any truth in the reports about her gonads. On that account, the term "hermaphrodite" (horrible word) would be used emphatically as a synonym for that horrible phrase "true hermaphrodite". On any account, though, there is a medical issue: in what I think is the unlikely event that there are testes internally at Caster Semenya's age of 18, and even more so if there is dysgenetic testicular tissue, the likelihood of malignancy now or later is worryingly high, and it is important that the "goldfish bowl" effect which has been set up do not lead her and her family to refuse to let this be investigated and dealt with as required -- without any media hype, of course.

I've also attached the IAAF's own gender policy [PDF], which I saw after writing the article for The Times and the articles for The Natal Witness. My own reading of it, especially section A 6, suggests that it is extremely unlikely that a finding that Caster Semenya is intersexed would lead to the stripping of her gold medal or to her exclusion from participation in international events as a woman. It needs to be pointed out, and I have done so on radio and television. This makes the hype all the more despicable. It needs to be driven home that being intersexed is not a big deal in the context of the IAAF guidelines, and it should not be a big deal in other contexts either. The distinction between sex and gender is being fluffed intolerably in all of this (and I stand by the point I make in the article in The Times that the inclusion of a psychologist specialising in gender on the IAAF panel of experts and "psychological gender testing", as well as the inclusion of a "gender expert" on the panel makes it clear that the claims about the "scientific objectivity" of the process are dubious). On my reading of the IAAF guidelines, there is no purchase for questions about Semenya's gender as such: in the event that she's intersexed, that she was classified as female at birth and that she's not challenging that classification, like you, she is to be deemed to be an intersexed woman and the guidelines do not imply that this bars her from competing against women who are not intersexed.

The media treatment of all of this has indeed been despicable, but yes, while there is interest in IS and a "five day wonder" wave of interest in intersex and sympathy for the intersexed, it must be used as an opportunity for education.

One outcome I would like is for the amendment, signed into law early in 2006, of South Africa's Promotion of Equality and Prevention of Unfair Discrimination Act, to be publicised. Without this, it will not "bite", and it has potentially huge implications. The dire legal vulnerabilities of the intersexed in South Africa which the insertions were drafted to remedy, and the implications of the signing of the insertions into South African law, are pointed out in the "IS and the Law" document. Given appropriate and adequate publicity, it could also influence legislation and jurisprudence elsewhere: its effect is to require courts in South Africa to interpret "sex", as used in the Equality Clause of our Constitution's Bill of Rights, as including intersex, and thus affording the intersexed protection from discrimination on the grounds of intersex on the principle that such discrimination is ipso facto deemed unfair unless and until proven to be fair. It puts the burden of proof squarely on the discriminator. I've not been able to get this into the spotlight yet.

A second outcome I'd like is a spotlight on the need for government to realise that there are a lot of intersexed people out there even if they are invisible, and that the sympathy for Caster Semenya should also entail the obligation for government to take up the needs of the intersexed and to act as a catalyst. I'd actually want to lobby for a small and low-cost directorate in the department being set up around the new Minister for Women, Persons with Disability and Children. With me as Director and say a Deputy Director, one or two Project Officers and one or two administrative assistants, given a cross-cutting brief to look at policies, practices and legislation wherever it bears on the intersexed -- health (the need to prevent the imposition of genital surgery on intersexed infants and children except to the extent objectively required for preservation of life and physical health, by having criteria and -- say -- a regulatory board which oversees this),collection of stats and research, appropriate counselling, workshops for medical professionals, getting the issue of IS covered from a rights perspective in med-school curricula and the like, protocols for classification of sex at birth, not riding rough-shod over the legal identities of the intersexed if admitted to hospital and found to be intersexed and ensuring dignity in treatment, etc.; Home Affairs -- ID documents and the like; correctional affairs -- making sure that the DiMarco scenario can never happen here; screening existing and proposed legislation to ensure that the intersexed are not prejudiced by anything; and general education. Given the clout of government, an enormous amount could actually be achieved at very little cost, but it would need to be driven by an activist -- someone with experience, first-hand knowledge and passion for the issue rather than by an apparachnik.

Thirdly, of-course, to note that Semenya's dignity and privacy have been ridden over roughshod, to affirm her rights to privacy and dignity and to use this as an opportunity to note that this applies to all the intersexed.

A point I'm at pains to make is that the widespread indignation in South Africa, from grass-roots right through to government at the way Caster Semenya has been treated, is commendable and needs also to be translated into support for the intersexed generally and active concern for the protection of their rights.

I hope that this makes some sense.

Best wishes,

Sally