Caster Semenya celebrates her silver medal at the London 2012 Olympic games. Original photo by Jon Connell, via flickr.

By Kelsey E. Rector

South African runner Caster Semenya is a two-time Olympic gold medalist and has dominated track events like the 800 meter and other mid-distance races over the last decade.[1] All her life, Semenya has been questioned about her sex, especially with respect to competing as an elite female track athlete.[2] Her performance came under fire because Semenya, who was raised as a woman, presents as a woman, and identifies as a woman, has differences in sex development (“DSD”) which cause her body to naturally produce more testosterone than the average female.[3] DSD has many potential causes,[4] but in the most general terms, means that a person has an “atypical development of their chromosomal, gonadal, and/or anatomic sex.”[5]

In competitive sports which rely on gender binaries to group athletes for fair competition, one of the major issues has been to determine how to handle challenges that DSD women are not “female” for the sake of competition.[6] As a result, the recent solution by World Athletics (formerly the International Association of Athletics Federations, or “IAAF”) has been to adopt new rules to protect fair competition which would require DSD women, who are considered “relevant athletes,” to regulate their elevated testosterone levels or bar them from competing in certain women’s track events.[7]

Last month, Semenya lost her appeal challenging the World Athletics regulation which prohibits certain athletes with elevated testosterone levels from competing as females in specified track events.[8]

The regulations set forth by World Athletics state that “relevant athletes,” like Semenya, are barred from competing in restricted events, such as the women’s 800 meter, unless they reduce their blood testosterone to a level of less than five nmol/L for at least six months and sustain it thereafter to maintain eligibility.[9] Similar regulations were proposed by the IAAF in 2014, but when challenged the IAAF failed to produce enough scientific evidence to justify the necessity of the regulation.[10] Despite conflicting studies regarding whether increased testosterone even provides a significant competitive advantage for DSD athletes, the IAAF proposed the current regulations and claimed that they were essential to preserving fair competition for women.[11]

Semenya filed a claim against IAAF in the Court of Arbitration for Sports (“CAS”), claiming that the DSD regulations were “unfairly discriminatory, arbitrary and disproportionate and therefore violate the IAAF Constitution . . . .”[12]

There are several issues with regulations such as these. First, the regulation explicitly targets those individuals who do not fit within a convenient, traditionally defined, binary division of sex. The regulation applies to DSD individuals, but not non-DSD women who may also naturally produce testosterone at high levels.[13] Second, the regulation only applies to certain track events and not to other sports or events.[14] It is interesting to note that the events in the restricted category are restricted to those events in which identified DSD athletes compete in the most significant numbers, but not to those where the performance gap between DSD women and non-DSD women was the widest.[15] Third, and perhaps most troubling, the regulation requires artificial lowering of natural testosterone levels—which can have side effects—in order for an athlete to compete as a woman.[16] We do not ask Michael Phelps to shorten his ridiculously long arms for fair competition, nor do we question Usain Bolt’s long legs in men’s racing—so is it even appropriate to regulate naturally produced hormones which may only give athletes a slight advantage?[17]

Following arbitration, CAS found that the DSD regulations were discriminatory, but upheld them because the regulations were “a necessary, reasonable and proportionate means of achieving the aim of what is described as the integrity of female athletics and upholding of the ‘protected class’ of female athletes in certain events.”[18] The court noted several concerns with the regulations, such the potential for compromising athletes’ confidentiality, the ability of the IAAF to practically apply the regulations, risks to athletes’ health from hormonal treatment, and the inclusion of certain events (the 1,500 meter and 1 mile) as restricted events.[19] The court implied that it was not its place to determine whether a different regulation could be implemented that was more fair and less discriminatory.[20] Instead the court stated that its role was limited to evaluating the regulation as presented in order to determine if it was necessary, reasonable, and proportionate.[21]

Following the CAS decision, the World Medical Association (“WMA”) released a statement encouraging doctors not to take part in implementing the regulations.[22] Specifically, the WMA president stated, “We have strong reservations about the ethical validity of these regulations. They are based on weak evidence from a single study, which is currently being widely debated by the scientific community.”[23] Nevertheless, the regulation was upheld on appeal by the Swiss Federal Supreme Court.[24]

The Swiss Court stated that it could only evaluate “whether the CAS decision violates fundamental and widely recognized principles of public order.”[25] The court determined that fairness in sport was a legitimate concern and that DSD athletes were not being forced to undergo examinations or treatment.[26] While technically the court is correct that athletes aren’t being forced into evaluation or treatment, if an athlete withholds her consent, she will be barred from competing.[27] That doesn’t exactly seem like a fair choice.[28]

So what comes next? First, given the concerns expressed in the CAS opinion, there may be challenges to the application of the DSD regulation once it starts to be enforced.[29] For example, an athlete who agrees to adjust her testosterone levels through hormone treatment may not be able to consistently keep them at the required level throughout her eligibility period.[30] If World Athletics chooses to enforce the policy anyway, that athlete would have a strong argument that she attempted to follow the regulation and that it would be unfair to bar her from competition for fluctuating testosterone levels.[31] In the meantime, Semenya will likely take her case to the European Court of Human Rights to determine “whether demanding women with intersex variations to change their natural bodies as eligibility condition for a certain sport events conforms to the European Convention on Human Rights.”[32]


[1] Athlete Profile: Caster Semenya, World Athletics, https://worldathletics.org/athletes/south-africa/caster-semenya-14330057 (last visited Oct. 20, 2020) (showing races won, current season times, world ranking, and other statistics).

[2] Robyn Dixon, Gender Issue Has Always Chased Her, L.A. Times (Aug. 21, 2009), https://www.latimes.com/archives/la-xpm-2009-aug-21-fg-south-africa-runner21-story.html. See also Erin Buzuvis, Caster Semenya and the Myth of a Level Playing Field, 6 Modern Am. 36 (2010) (discussing how Semenya’s voice, musculature, and speed provoked questions about her gender after she won the 800m at the World Championships in 2009).

[3] See Sofia Christensen, Semenya Lawyer Prepares Testosterone Rule Challenge in European Court, Yahoo News (October 1, 2020), https://sports.yahoo.com/semenya-lawyer-prepares-testosterone-rule-142841526.html.

[4] DSD is a term encompassing a variety of conditions including but not limited to: 46 XX congenital adrenal hyperplasia, 5-alpha reductase deficiency, Klinefelter syndrome (47 XXY), Swyer syndrome (46 XY gonadal dysgenesis), and Androgen insensitivity syndrome. Kyla Boyse, Disorders of Sex Development (DSD) Resources, Mich. Med. (updated Nov. 2012),  https://www.med.umich.edu/yourchild/topics/dsd.htm.

[5] Semenya v. Int’l Ass’n of Athletics Fed’n, CAS Case No. 2018/O/5794, at 110–11 (Ct. Arb. Sport Apr. 30, 2019), https://www.tas-cas.org/fileadmin/user_upload/CAS_Award_-_redacted_-_Semenya_ASA_IAAF.pdf.

[6] See generally Maayan Sudai, The Testosterone Rule—Constructing Fairness in Professional Sport, 4 J. L. & Biosciences 181, 182 (2017) (stating that the issue of sex classification has plagued professional sport authorities since at least 1968).

[7] See World Athletics, Eligibility Regulations for the Female Classification, 2 (effective Nov. 2019) https://www.worldathletics.org/download/download?filename=656101dc-7716-488a-ab96-59d37941e9ac.pdf&urlslug=C3.6%20-%20Eligibility%20Regulations%20for%20the%20Female%20Classification; Testosterone Rules for Female Athletes ‘Unscientific’, BBC (Mar. 21, 2019), https://www.bbc.com/news/health-47640359.

[8] George Ramsay & Jill Martin, Caster Semenya Loses Appeal in Swiss Court over Restriction of Testosterone Levels, CNN (Sept. 9, 2020), https://www.cnn.com/2020/09/09/sport/caster-semenya-ruling-athletics-spt-intl/index.html; Lena Holzer, The Decision of the Swiss Federal Supreme Court in the Caster Semenya Case: A Human Rights and Gender Analysis, Opinio Juris (Sept. 30, 2020), http://opiniojuris.org/2020/09/30/the-decision-of-the-swiss-federal-supreme-court-in-the-caster-semenya-case-a-human-rights-and-gender-analysis/; Sean Ingle, Caster Semenya’s Olympic Hopes Fade as Runner Loses Testosterone Rules Appeal, The Guardian (Sept. 8, 2020), https://www.theguardian.com/sport/2020/sep/08/caster-semenya-loses-appeal-against-world-athletics-testosterone-rules.  

[9] World Athletics, supra note 7, at 4–5. The regulations define relevant athletes as those with listed DSDs, testosterone levels higher than five nmol/L, and who have androgen sensitivity allowing the testosterone to have an androgenizing effect. Id. at 4. Restricted events currently include the women’s 400 m, 400 m hurdles, 800 m, 1,500 m, and 1 mile. Id.

[10] See Alexandria Adkins, Comment, Trapped in the Binary Divide: How Forced Contraceptives Violate the World Anti-Doping Code, 35 Am. U. Int’l L. Rev. 531, 542–43 (2020). These regulations required hyperandrogenic females to reduce natural testosterone levels through the use of oral contraceptives. Id. at 542.Dutee Chand, a hyperandrogenic sprinter from India successfully challenged the necessity, reasonableness, and proportionality of the regulations. Id. at 543.

[11] Sudai, supra note 6, at 186–89.

[12] Semenya v. Int’l Ass’n of Athletics Fed’n, CAS Case No. 2018/O/5794, at 2 (Ct. Arb. Sport Apr. 30, 2019), https://www.tas-cas.org/fileadmin/user_upload/CAS_Award_-_redacted_-_Semenya_ASA_IAAF.pdf.

[13] Adkins, supra note 10, at 561.

[14] Id. at 562.

[15] Semenya, CAS Case No. 2018/0/5794, at 156.

[16] Adkins, supra note 10, at 556.

[17] Matt Butler, Nobody Asked Bolt to Shorten His Legs or Phelps to Shrink His Feet, so Why is Caster Semenya Being Told to Reduce Her Testosterone?, i News (Sept. 16, 2020), https://inews.co.uk/sport/athletics/caster-semenya-iaaf-testosterone-cas-sebastian-coe-260629. But see Malcom Gladwell & Nicholas Thompson, Caster Semenya and the Logic of Olympic Competition, New Yorker (Aug. 12, 2016), https://www.newyorker.com/sports/sporting-scene/caster-semenya-and-the-logic-of-olympic-competition (rationalizing the regulations by stating that these are different types of advantages, and that testosterone places Semenya outside the protected class of women).

[18] Semenya, CAS Case No. 2018/0/5794, at 160.

[19] Id. at 152–160.

[20] Id. at 160.

[21] Id.

[22] WMA Reiterates Advice to Physicians not to Implement IAAF Rules on Classifying Women Athletes, World Med. Ass’n (May 2, 2019), https://www.wma.net/news-post/wma-urges-physicians-not-to-implement-iaaf-rules-on-classifying-women-athletes/.

[23] Id.

[24] Press Release, Swiss Fed. Sup. Ct., DSD Regul.: Caster Semenya’s Appeal against the Decision of the Ct. of Arb. for Sport Dismissed (Sept. 8, 2020). The court opinion is in French (which I do not speak), as such I cite to the Press Release which was released in English. The case citation is: Tribunal Fédéral [TF] [Federal Supreme Court] Aug. 25, 2020, 4A_248/2019 (Switz.).

[25] Press Release, Swiss Fed. Sup. Ct., supra note 24.

[26] Id.

[27] World Athletics, supra note 7, at 5.

[28] Holzer, supra note 8.

[29] Semenya v. Int’l Ass’n of Athletics Fed’n, CAS Case No. 2018/0/5794, 158–59 (Ct. Arb. Sport 2019).

[30] Id.

[31] Id.

[32] Holzer, supra note 8.

U.S. Army Spc. Valerie Arceneaux, 3rd Armored Brigade Combat Team, 1st Cavalry Division, poses for a series of feature photos during the Expert Soldier Badge Qualification at Fort Hood, Texas, August 19, 2020. (U.S. Army Illustration by Sgt. Calab Franklin)

By Ashley Willard

As it stands, the Military Selective Service Act (“MSSA”) only impacts males.[1] The MSSA gives the President authority to issue a proclamation requiring all male citizens and most male noncitizen residents between the ages of eighteen and twenty-six to register with the Selective Service.[2] The current registration period began when President Carter issued Presidential Proclamation 4771 in 1980.[3] The registration process facilitates conscription in the event that a national emergency necessitates a military draft.[4] Any man who knowingly fails to register may face criminal penalties of up to five years in prison and up to $10,000 in fines.[5] Other penalties include ineligibility for federal student aid or federal job training.[6]

Nearly forty years ago, the Supreme Court upheld the constitutionality of the MSSA in Rotsker v. Goldberg.[7] The Court emphasized then recent congressional findings in which Congress considered extending the MSSA to include women, but ultimately declined to do so.[8] In these findings, Congress highlighted two main facts—(1) the purpose of the draft is mass mobilization of combat troops, and (2) women were ineligible for combat roles at the time.[9] Therefore, the Court held that men and women were not similarly situated with regard to the draft because of the combat restrictions on women, and therefore there was no Fifth Amendment violation.[10]

However, in February 2019, a federal district court judge in Houston found that the male-only draft registration requirement was indeed unconstitutional on Fifth Amendment equal protection grounds.[11] The court reasoned that “Rotsker is factually distinguishable” because of the substantial changes in the facts underlying that decision.[12] Women’s opportunities in the military have greatly expanded since 1981.[13] In fact, the doors opened completely for women in 2015 when Defense Secretary Ash Carter rescinded the combat-exclusion policy that had previously kept women from serving in combat roles.[14] The district court highlighted that “women are now eligible for all military service roles, including combat positions.”[15] Applying intermediate scrutiny, the court held that the government did not meet its burden to show that the male-only registration requirement continues to be substantially related to the admittedly important governmental interest of raising and supporting armies.[16]

The government appealed, and in August 2020, the Fifth Circuit reversed, holding that Rotsker controlled until the Supreme Court itself decided to reverse its precedent.[17] The court of appeals echoed the lower court’s assertion that “the factual underpinning of the controlling Supreme Court decision has changed,” but emphasized that appeals courts do not have “license to disregard or overrule that precedent.”[18] Yet, while the MSSA remains binding precedent, the winds of change have clearly started to blow.

In 2017, Congress tasked the National Commission on Military, National, and Public Service to conduct a review of the military selective service process.[19] In their report, issued in March 2020, the Commission concluded that it was time to extend the registration requirement to women.[20] First, there are prudent reasons for including women in the draft—seven out of every ten young Americans would not meet the physical, moral, educational, and health standards required for service.[21] Department of Defense research indicates that women are equally likely to qualify for service as men, and excluding half the pool of eligible individuals would be “imprudent.”[22] Second, there are ethical and moral reasons for doing so—the “current disparate treatment of women unacceptably excludes women from a fundamental civic obligation and reinforces gender stereotypes about the role of women.”[23]

If Congress is persuaded by this recommendation and passes legislation amending the MSSA, there will be no need for the Supreme Court to revisit the issue.[24] There have been several failed legislative attempts to amend the MSSA and require women to register with the Selective Service.[25] The most promising attempt began with the Senate Armed Services Committee recommending that Congress amend the MSSA to require women to register; it ended instead with the creation of a commission to report on the issue, as discussed above.[26] A different report, published by the Congressional Research Service, proposed three routes that Congress could take to wade into the debate.[27] First, Congress could amend the MSSA to require women to register for the Selective Service.[28] Second, Congress could simply amend the MSSA to provide a new justification for why women should not be required to register, to preempt judicial review.[29] Third, Congress could repeal the MSSA altogether.[30] It is highly unlikely that Congress will pursue this final route.

If Congress takes no action, then resolution of this issue rests with the judicial system. As discussed above, the facts relied on by the Rotsker Court have changed substantially and the circumstances no longer seem to support the constitutionality of the MSSA. The Court has demonstrated a willingness in the past to overrule prior decisions based on subsequent factual developments.[31] Therefore, if the Court takes up the issue, it is likely that it will overturn Rotsker and declare a male-only draft unconstitutional.

Whether the issue is tackled in Congress or by the Court, we can expect a resolution in the not-so-distant future. Ladies, get ready. 


[1] 50 U.S.C. § 3802 (“[I]t shall be the duty of every male citizen of the United States, and every other male person residing in the United States, who . . . is between the ages of eighteen and twenty-six, to present himself for and submit to registration) (emphasis added).

[2] Id. See also Jonathan M. Gaffney, Cong. Rsch. Serv., LSB10491, Expanding the Selective Service: Legal Issues Surrounding Women and the Draft 1 (2020), https://crsreports.congress.gov/product/pdf/LSB/LSB10491.

[3] Proclamation No. 4771, 3 C.F.R. § 82 (1981), reprinted in 50 U.S.C. § 3802 app. at 742 (2018).

[4] Nat’l Coal. for Men v. Selective Serv. Sys., 969 F.3d 546, 547 (5th Cir. 2020).

[5] 50 U.S.C. § 3811(a)–(b).

[6] Id. § 3811(f).

[7] 453 U.S. 57 (1981).

[8] Id. at 73.

[9] Id. at 77.

[10] Id. at 78–79. The MSSA, a federal law, implicates the Fifth Amendment rather than the Fourteenth because the Fifth Amendment applies to actions of the federal government. See Barron v. Baltimore, 32 U.S. 243 (1833).

[11] Nat’l Coal. for Men v. Selective Serv. Sys., 355 F. Supp. 3d 568 (S.D. Tex. 2019), rev’d, 969 F.3d 546 (5th Cir. 2020). Marc Angelucci, counsel for the National Coalition for Men, was killed earlier this year by fellow men’s rights activist Den Hollander, a former member of NCFM who had been ousted from the group in 2015 after making threats on NCFM’s president for passing him over as co-counsel in this case. Sonia Mohge & Paul P. Murphy, Friend of Slain California Attorney Says Suspect in Attack on Judge’s Family Had a Grudge Against Him, CNN (Jul. 22, 2020), https://www.cnn.com/2020/07/22/us/hollander-angelucci-judge-salas-shooting/index.html.

[12] Nat’l Coal. for Men, 355 F. Supp. 3d at 575.

[13] Id. at 576.

[14] Nat’l Comm’n on Mil., Nat., and Pub. Serv., Inspired to Serve: The Final Report 114 (2020), https://inspire2serve.gov/sites/default/files/final-report/Final%20Report.pdf [hereinafter Inspired to Serve]. See also Cheryl Pellerin, Carter Opens All Military Occupations, Positions to Women, DOD News (Dec. 3, 2015),  https://www.defense.gov/Explore/News/Article/Article/632536/carter-opens-all-military-occupations-positions-to-women/#:~:text=Defense%20Secretary%20Ash%20Carter%20announced,open%20to%20women%2C%20without%20exception.&text=%E2%80%9CThey’ll%20be%20allowed%20to,into%20combat%2C%22%20Carter%20added.

[15] Nat’l Coal. for Men, 355 F. Supp. 3d at 576.

[16] Id. at 581.

[17] Nat’l Coal. for Men v. Selective Serv. Sys., 969 F.3d 546, 547 (5th Cir. 2020).

[18] Id. at 549-50.

[19] Gaffney, supra note 2, at 3.

[20] Inspired to Serve, supra note 14, at 115.

[21] Id.

[22] Id. Actually, the reported statistics indicate that women are slightly more likely to qualify for service (29.3 percent) than their male counterparts (29 percent). Id.

[23] Id.

[24] While the National Coalition for Men has not yet petitioned the Supreme Court for review, its website indicates that it plans to, as it is currently “exploring its options, including filing a Petition for Writ of Certiorari with the United States Supreme Court.” Nat’l Coalit. for Men, https://ncfm.org/ (last visited Oct. 6, 2020).

[25] Gaffney, supra note 2, at 3.

[26] See supra notes 19–23.

[27] Gaffney, supra note 2, at 4.

[28] Id.

[29] Id. The government offered two such justifications in National Coalition for Men: (1) the requirement of female conscription into combat roles might reduce female enlistment by increasing the perception that women would be forced to serve in combat roles; and (2) the administrative problems of drafting women, who are treated differently with regard to “dependency, hardship, and physical standards.” 969 F.3d 546, 579–80 (5th Cir. 2020). The court outright rejected the first as an “archaic and overbroad generalization” that women are more combat-averse than men, so that justification will unlikely be used to support future legislation. Id. at 579. While the court ultimately also rejected the second, they did so in part because of the standard of review. The court indicated that if Congress were to make a “studied choice” based on male and female rates of physical eligibility, the administrative justification might stand in the future. Id. at 581. However, as discussed in supra note 22, women are actually more likely to be physical eligible than men. Thus, while Congress might be able to find a satisfactory administrative justification, they probably will not be able to justify the continued exclusion of women based on rates of physical eligibility.

[30] Gaffney, supra note 2, at 4.

[31] Cong. Rsch Serv., R45319, The Supreme Court’s Overruling of Constitutional Precedent 17–18 (2018), https://www.everycrsreport.com/files/20180924_R45319_3cafb6dc6b134c9a1c83eff9bfb780a3b904bd3a.pdf.