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Sex appeal: why the circus surrounding Caster Semenya is wholly unacceptable

Caster Semenya is an 18-year-old South African presently at the centre of what can only be described as the mother of all gender rows (or, having regard to the way this has been covered, possibly the mother and father of all gender rows). What this has illustrated is the need for basic fairness and justice in sporting procedures and testing just as much as in the court room.

Just in case there is anyone who has not heard of Caster Semenya and the question of whether she is really a woman (difficult though it is to imagine that) she is the South African who recently won the 800m women's World Championship title in Berlin. Her victory has been questioned on the grounds as to whether she is truly a woman or not.

All of the facts are not yet in. Thus to some extent whatever is said about this issue constitutes speculation. It is always dangerous to make positive pronouncements against that background, but it does not seem conceivable or even suggested that the athlete is a fraud. Miss Semenya appears to be a woman from her birth certificate, she appears to have been raised as a girl, and viewed as a female. Whatever the outcome of the IAAF investigation, this seems to relate to whether she has some form of medical condition which means her sexuality is in doubt (as to which more hereafter). This does not seem to be a situation where anyone is treating it as a man masquerading as a woman.

Under the present rules, whether someone is treated as a "man" or "woman" is not as simple as whether they were born with male or female genitalia. There are a number of conditions referred to as "intersex" conditions. These can affect both men and women, but those in relation to men are effectively irrelevant for sporting purposes because no one would masquerade as a man, at least not in order to obtain any competitive sporting advantage (although the existence of intersex conditions means that it might be possible for someone who appeared on the face of it to be male to be determined as female). These intersex conditions fall into a number of different categories, with a number of different potential consequences. Although they are rare in terms of only occurring in every so many thousand people, that does mean that throughout the world there will be many people who are subject to such conditions. The problem arises because certain intersex conditions lead to greater production of androgens leading to greater muscle and heart capacity in the same way as would occur with the typical man as opposed to the typical woman. Should this be treated as a genetic advantage, in the same way that successful people usually have sporting advantages because of their genetic potential, or should be treated as something different? In any event whatever approach ought to be taken, true intersex conditions can never be compared to taking drugs or cheating, since they are naturally arising conditions which the athlete cannot do anything about.

Intersex conditions can also vary from having a mild impact to a substantial one. If such a condition exists, it is an intensely personal one which one would almost certainly not want anyone else knowing about, let alone having it paraded before the world's media.

It is plain that someone who knew about the proposal to undertake the testing (we do not know if this was someone at the IAAF or not) leaked the testing to the media. Since testing has commenced if there is any veracity in the news reports the leaking has continued, since there have been stories suggesting that Miss Semenya appears to have unusually high levels of testosterone from the tests conducted so far. (Not that that necessarily means anything at all).

In the present age the Internet means that leaked information spreads like wildfire and then it is inevitable that the press will take it up whether it thinks the story is fair or not. It is therefore crucial that confidentiality is maintained.

Nor can it be any defence that the IAAF asked that Miss Semenya did not take part in the world Championships until she had had a sex test. Why on earth should she be excluded? This would amount to a punishment before there was even a decision. It is no answer to that to suggest that as she was only 18 there were many more Championships ahead of her. Loss of form, or the emergence of someone else, or injury, could mean that this was her best chance of a world title. Even if that were not the case, she is entitled to attempt to win as many World Championships as possible

I hope that Miss Semenya suffers no lasting trauma from her ordeal, although frankly I doubt it. The questioning of her sexuality appears to have become some sort of bizarre ongoing world's press reality show. Intersex conditions can often arise without the person having had any suspicion of the problem before some particular issue arises. Imagine it was you. Then imagine you not only had to cope with concern about what this meant and whether it affected your underlying sexuality, but had to cope with not only all your colleagues, friends and enemies knowing, but apparently everyone in the world knowing. It would be nearly as bad if you had no intersex condition but had the world speculating about whether you did or not. Then imagine you were only 18 years old. Therefore whatever the position is, and whether there is any condition or not, in various ways this young athlete has had to undergo an ordeal which is frankly intolerable.

If gender is to be questioned the procedure must be rigourous be fair and equally confidential. There should never be any question of athletes being invited not to compete until there has been a decision preventing them. Those involved in the process should know that if they leak the information and are identified they will be sacked. People should have a right to reasonable privacy, and whether in criminal procedures or in procedures which affect their lives or employment they should have the right to a fair trial before any adverse consequence is imposed. Whilst I do not doubt that Miss Semenya will receive fair treatment in the way she is investigated, no athlete should ever again have to undergo this type of public circus pre-determination. The prospect that anyone should ever have to do so is distinctly unappealing.

Michael J. Booth QC