When was the last time you said, I never thought about it that way. The Current aims to give you that moment every single day. Hello, I'm Matt Galloway, and our award-winning team brings you stories and conversations to expand your worldview. Sometimes they connect to the news of the day, sometimes to the issues of our time. You'll hear all kinds of people on The Current, from best-selling authors to the Prime Minister to maybe your neighbor. Find us wherever you get your podcasts now, including YouTube. I'll talk to you soon.

This is a CBC podcast. In March of this year, Christine Boma finally hit a major milestone. According to World Athletics, she had to keep her testosterone down for six months. And after tinkering with the meds and a lot of close monitoring, she hit the mark. Hank and Elise Botha, her coach and doctor, sent off the proof and waited. And a few weeks later, they got a letter from World Athletics. Christine was cleared to compete. With the letter in hand, the race was well and truly on. The Paris Olympics were just four months away. If Christine wanted to be there, there was just one more step. She had to actually qualify. She had to run a qualifying time at a World Athletic's accredited meet. Christine's coach, Hank, considered competitions all all over the world. The one place he didn't want Christine's first race back to be was the Kipkano Classic in Nairobi.

It's also emotional that's where she was injured.

Plus, she would already have all eyes on her because of the saga with her medication and DSD status. But because of visas and scheduling issues, Hank couldn't avoid it. So in April, Christine traveled to Kenya and faced the Kipkano Classic once again. This was her first chance to hit a qualifying time. Before the race, I called her. Are you excited to run her?

Yeah, I'm excited.

Are you nervous about?

Yeah, I do. I am nervous because I got injured here in Kenya. Yeah, but I'm managing.

I spoke with Hank before the race, too.

My plan is to tell her, Listen, the world are telling you you are not a woman. The world are telling you you're not good enough. The world are telling you it's not your talent. It's now time to show the world whether they are right or wrong.

And on April 20th, in front of a packed stadium in Nairobi, Christine lined up for the 100 meters. To qualify for Paris, she needed to cross the finish line in 11.07 seconds or less. We have Christine Borma.

The top athletes in this field from Namibia, Christine Borma, Olympic silver medalist, finally getting back on the track this year. We're excited to see what she can do. Off they go. And Gina Bas had a good start. And Christine Borma, Gina Bas. What a wonderful run. 11:34. We thought it would be a bit faster, but a good win for Gina Bas from in the Gambia.

Christine came in last.

Christine Borma didn't have a good outing, but understandably, because she's just literally just first race back this year. But she's more Everything that could go wrong went wrong with this race. So the poor child, it was an awful first session on the track, and suddenly it was just too much for her.

On that day at Kipkano, there was someone sitting in the stands with a very particular interest in watching Christine race, Max Emali, the Kenyan sprinter. Last time Christine raced at Kipkano, Max ran beside her. But now Now, Max wasn't competing because she refused to take medication to lower her testosterone. I called Max after the event and asked how it felt to watch the race.

I told her it was bad for me because I wanted to run and I was not able to run. Seeing Boma after using the medicine, she was not in a shape to run a good time. It was so bad for me.

Max was just one month away from bringing her case to the Court of Arbitration for Sport, where she would take on World Athletics over the rules that led to Christine taking these medications.

I felt that World Athletics has neglected us, World Athletics that want us to destroy ourselves. Because if she can use the medicine and be the way she was, that was not good at all.

Max wasn't the only one drawing conclusions based on Christine's performance that day. In the comments and discussion online, you see two kinds of responses. Some people are cheering Christine on with comments like, Boma, you are still our champion. It is just a matter of time. We're going to win. But others saw this race as proof. One commenter wrote, This is like expecting a bull to produce after castration. Those commenters were saying essentially the same thing World Athletics had been saying for years, that Christine and Max and other so-called DSD athletes like them have an unfair advantage on the track because of their testosterone. And now that Christine's testosterone was down, look, they said, advantage gone. Over the last 15 years, this idea has been the focus of a heated debate, a debate that includes allegations of dubious science, multiple cases at the Court of Arbitration for Sport, experts switching sides, and a parade of ever-changing policies. At the heart of it lies a question that is incredibly hard to answer. What does it mean in sports to have an unfair advantage? From CBC and NPR's Embedded, this is Tested. I'm Rose Eveilish.

Fair. Advantage.

It's an interesting word when it comes to sports, because in some ways, it's what sports are all about, right? Who is faster or stronger or smarter. The idea of advantage is the foundation of DSD policies. This claim that some women with DSDs have an advantage over other women. But what What does advantage actually mean? Step into my laboratory, will you? Imagine that the walls of this purely hypothetical lab are lined with little vials, each labeled with tiny, precise script. Within each of these test tubes is some element of athletic advantage. If we combine them, we can create athletic alchemy, the perfect athlete. First, you're going to the vials labeled time and money. Those are key to hire coaches, eat right, travel for competition, have the best training facilities, the newest shoes. Next, let's add something a little bit more ineffable, mentality, determination, that single-minded focus. Our perfect athlete beaker is now half full. But on top of all this stuff, you need the body. Depending on what sport this imaginary athlete might compete in, you'll want to tweak things like height, weight, and body proportions. For example, Michael Phelps has an incredibly long torso and comparatively short legs, perfect for swimming.

There's also a whole section of this lab's wall of vials dedicated to genetic mutations that an elite athlete might want. There There are at least 20 different genetic factors that researchers have identified as being potentially correlated with athletic performance. So go back to the wall and grab the vial labeled EPOR, an acronym for erythropoietin receptor. This gene determines how good the body is at making red blood cells. People with this mutation can carry more oxygen in their blood, which helps with aerobic exercise. A Finnish skier named Eero Mantiranta had this exact mutation, and he won seven Olympic medals. And while you're over there, grab the vial labeled Act 3. That one will be handy, too. People with this mutation have a slight advantage in powerful sprinting events. You might also grab smaller tweaks from our wall of beneficial mutations. Aice insertion/deletion, angiotincentagen, AMPD1, homeostatic iron regulator, leukin 6, endothelial nitric oxide, or activated receptor alpha, or activated receptor gamma, and coupling protein 2. Some athletes with these kinds of mutations are viewed as icons in their sport, like that Finnish skier I mentioned. Here's Morgan Campbell, a sports writer at CBC. We just celebrate him as a medical marvel, right?

Whereas in a different context, we would say he is a natural-born cheater. That's what we did with Mboma and Mastalini. It all depends on who's lucky enough to get born with the right set of characteristics that fit with where we decide to draw the line between somebody with a genetic advantage or somebody who we decide is born a cheater. World athletics says they don't think these athletes are cheating per se, but they still can't be allowed to compete as is. But why is it that some kinds of biological advantages are fine and others require a whole new rule to be written to remove the alleged advantage? The answer to this question, according to those in favor of regulations, is simple. We don't divide sports by blood, oxygen, or fast twitch muscles, but we do divide sports by sex. And so, these folks argue, advantages that might be connected to sex are fair game. In 2015, when Doody Chan's case was decided, the Court of Arbitration for Sport actually agreed with this idea that sex-based advantages might warrant regulation. But they said that before World Athletics could actually put rules into place, they had to prove just how big this advantage was.

If it was big, like 10 or 12%, then sure, that might call for rules like this. But if it was small, like 2 or 3%, then that's a lot harder to justify Why? Because that would put the advantage in the realm of those other things we just discussed. World Athletics lost their case in 2015 because at the time, they didn't have any evidence to actually show how big this advantage might be. But the ruling was provisional. It suspended the testosterone regulations for two years, and it said that sports officials had those two years to go off and find evidence to justify their policies. This directive alone raised some red flags among researchers following this topic.

It'd be a little bit like a regulatory agency saying to a tobacco company, Hey, you got two years. Go gin up some research and tell us that smoking doesn't cause cancer.

That's Roger Pilke, a professor of science policy at the University of Colorado, Boulder, with a special interest in how data is used to shape policy. Kass asked World Athletics to answer a fairly straightforward question, how much of an advantage do athletes like Caster Semenya or Tuti Chand have? The ideal study you would do to answer this question is pretty simple. You'd want to compare the testosterone level and performances of DST athletes with non-DST athletes. But that's not the study World Athletics did.

There are no studies, peer reviewed or not peer reviewed, of the relative performance of female athletes with certain DSD conditions as compared to female athletes without those conditions. There's just no studies.

Instead, they did something slightly different. In 2017, two World Athletics researchers published a paper in the British Journal of Sports Medicine. The study looked at the testosterone level of all athletes, regardless of their DSD status. And the paper argued that they did actually find evidence that higher testosterone levels meant better performance, but only for some events, mostly the so-called middle distances, the 400, the 400 hurdles, and the 800. But Critics of World Athletics noticed a few things about this study. They pointed out that its authors were not independent researchers. They were both associated with World Athletics. Experts like Roger also found the actual results weird. Why would testosterone only impact middle distance events?

I don't know. My bullshit detector went nuts. Let's go look at this data and figure out what's going on.

Roger made his misgivings public on his blog. Other researchers piled on as well. One called the study, A Mess. And then in April of 2018, World Athletics announced a new policy.

The first decision this morning was a very, very big decision.

World Athletics President, Sebastian Coe, said the policy was based, at least in part, on the study it had done.

We were asked by the Court of Arbitration for Sport to provide the evidence regarding the magnitude of this advantage, which we now have, and the Council has been taken.

And Co said that this was one of the organization's, quote, toughest subjects.

And I want to make one point really clear, crystal clear up front. This is not about cheating. No HA athlete States have cheated. This is about our responsibility as a Sports International Federation to ensure, in simple terms, a level playing field. It is our sport, and it is up to us to decide the rules and the regulations.

The new rules restored the eligibility restrictions. Once again, women with high testosterone would have to lower it in order to run in the women's category. This time, the threshold was cut in half, from 10 nanomoles per liter to five. The rules only applied to some of the events in which the paper found an advantage, those middle distance races. Roger Pilke had been hoping to get a look at the paper's data. A few months after the new policy was released, the study's authors finally allowed him to see some of it. When they looked closely, Roger and his collaborators found all kinds of errors.

I mean, it was stunning. There was between, I think the numbers 17 and 32% of the data was erroneous. They had duplicated data, they had phantom data that didn't exist anywhere. They duplicated athletes, they had athletes who doped. Hugely problematic.

Eventually, the authors of the original study published a response to the critiques, admitting that there were some issues with the data and offering up a new analysis. In that new analysis, The results changed. Only one of the running events cited in the original maintained the level of advantage they claimed. But still, World Athletics stuck with its regulations. No changes, corrections, or updates.

The homework that IAAF turned in was returned with a big fat F on it. They actually didn't complete their homework.

The only way to change the rules would be to challenge them again in court. And this time, the challenger would be the South African star, Caster Semenya.

When was the last time you said, I never thought about it that way?

The Current aims to give you that moment every single day. Hello, I'm Matt Galloway, and our award-winning team brings you stories and conversations to expand your worldview. Sometimes they connect to the news of the day, sometimes to the issues of our time. You'll hear all kinds of people on The Current, from best-selling authors to the Prime Minister to maybe your neighbor. Find us wherever you get your podcasts now, including YouTube. We'll talk to you soon.

In February of 2019, the Court of Arbitration for Sport opened its doors to the parties of a new case over the latest regulations. This time it would be the IAAF, which is now known as World Athletics, versus Caster Semenya. Caster arrived wearing a sharp black suit and white sneakers. Hello, Ms. Semenya. How are you?

Good morning. Thanks.

Could we have a quick comment from you How are you? She smiles and shakes her head. No. Sebastian Coe, the President of World Athletics, on the other hand, did stop to answer press questions before going into the building.

This is a very, very important day. The core value for the IAAF is the empowerment of girls and women through athletics. The regulations that we are introducing are there to protect the sanctity of fair and open competition. And that's really what we're to defend.

World Athletics declined to do an interview for this series, and it says it can't comment on specific cases. But I did talk to someone who was in the room on the World Athletics side of things. Dr. Richard Aukus is an endocrineologist at the University of Michigan. In this 2019 case, he served as an expert witness for world athletics. Here's how he describes to me the need for these rules.

There is a women's category, and we call it women's for better or worse. And this women's category, the sport has taken the position that it is a protected category for people for whom they would not have a level playing field if they were to compete against male-bodied athletes in the sports covered in World Athletics. If you're going to do that, you have to have a definition and you have to have some means of determining who belongs in that protected category.

Can you say more about protected? What does that mean? What does that mean to you?

That not anybody can go into that. I can't compete in the women's category. I may want to, but I can't.

Would you want to?

I win a medal. The last triathlon I did, I was third in my age group, but I would have won the overall women's. So it depends if I want to win a medal or not.

Again, as far as I can tell from all of my research, this has never happened at the elite level. No male athlete has snuck into a women's race and won a medal. But the idea here is that DSD athletes like Caster are, in Richard's terms, male-bodied, essentially too male to run against other women.

You can't just compete in the protected category by saying that I'm one of them. You understand? There's a medical definition of that protected category.

Here is where we get to a thing that can be really confusing. On the one hand, World Athletic says that it would never question an athlete's sex or gender. The most recent policies specifically say that the rules are in no way, intended as any judgment on or questioning of the sex or the gender identity of any athlete. But in Switzerland, in 2019, the World Athletic team argued in the Court of Arbitration for Sport, that the women impacted by these policies are, in their words, biologically the same in every material respect as male athletes without DSDs. The rules even say that they would allow these women to compete in the male category. After World Athletics lost their first case, which was Judy Chan's case, they started to double down on the language they used to talk about women with intersex variations. They started using language like biological males, which they had never used before. This is Katrina Karkasis, a cultural anthropologist at Amherst College and the author of Testosterone, an unauthorized biography. They started emphasizing the chromosomes that the women had. They started talking about testies.

These were all in my mind, dog whistles meant to signal to the public, You might think this person is a woman. She might say she's a woman. But let me tell you about all of these biological traits she has. Our hope is that that will help you to see her as a male.

In my reporting, I also learned that some critics of World Athletics believe there is another reason the organization is making this biological male argument. Because if you think that these women are biological males, you don't need to do studies comparing different women to to each other. You can just compare men and women. And there is lots of literature already showing that men have a 10 to 12% advantage over women on the track. If they can use that evidence, they don't have to go out and get anymore. They've already got plenty.

But they don't.

They do not have any evidence on athletes with an intersex condition.

This is Dr Eric Verlaine, a pediatrician at UC Irvine who specializes in treating patients with differences of sex development.

And then they're saying, Well, intersex individuals, intersex athletes, are exactly the same as biological male athletes. So we don't need to redo this evidence.

Eric testified for Caster's side in the 2019 case. But before that, he worked with the International Olympic Committee and World Athletics to set that original 10 nanomoles per liter threshold. He says he's not necessarily are necessarily opposed to regulating these athletes, but the regulations, in his words, have to make sense. They have to be based on the appropriate science, like that ideal study I mentioned earlier, the one that would directly compare DSD and non-DSD athletes. Eric says you can't just compare two very different populations and call it evidence.

This is not how evidence is built. There are many differences between a biological male who does not have a DSD and a woman with a DSD.

Caster and her team argued that even if DSD women had some advantage, it was nowhere near the level of advantage that a cis male might have. In fact, Caster doesn't even have the women's world record in the 800th. She is the fourth fastest 800 meter runner in women's history. In 2019, in court, a World Athletics Representative argued that perhaps that was because she was simply not trying as hard as she could. The core question in the 2019 case was about balance, or in fancy lawyer terms, proportionality. Was the potential advantage Caster had big enough to justify the pain that the regulations put her through? In the 2019 case, Caster spoke to the court about her terrible experience taking the medications, the side effects like nausea, fever, and sleep problems. Here's Carlos Sayo, one of the lawyers.

We had evidence of the harms caused by the regulations. And so we said, even if there is some performance advantage of testosterone, well, whatever benefit of the rules is greatly outweighed by the awful experiences you're forcing these women to go through for the sole purposes of eligibility.

After the hearing was over, World Athletics would go on to make a puzzling argument. It has said that, quote, these medications are gender affirming, that women like Caster, Max, and Christine should want to take them if they really are women. The director of the Health and Science Department at World Athletics, Dr. Stéphane Bremon, said in an interview, If a person claims to be a woman and wants to compete in this protected female category, then she should be happy to lower her testosterone level. If this is not the case, then one must ask questions about her true sexual identity. Dr. Stefan Bermón was one of the authors of that disputed study. He declined to do an interview with us, though he wrote in an email that he thought my questions were, deliberately provocative. But I asked Dr. Richard Aukus about this claim that the meds are gender affirming. He's the endocrineologist who testified on behalf of World Athletics in that 2019 case, and he treats trans and intersex patients. What about Patients who would identify as women and don't want to undertake treatment in this group.

So I don't understand that. Can you explain that to me?

So someone who was assigned female at birth, let's say, raised raised as a girl and who now still is living as a woman, is a woman, sees herself as a woman, but doesn't want to necessarily take anything, any medications to change her body.

You see, to me, I know what you're saying, but to me, that doesn't make any sense. Now, they could be non-binary. So I think what you're describing is a non-binary individual.

But if they don't identify as non-binary, I don't feel like I can say they're non-binary, right?

Well, only they can say what they are. But I think, to me, that's not consistent with what, at least my understanding, and what the field considers a female gender identity. That's just what our field would consider when we're talking about hormone replacement therapy.

We talked with other doctors who work in intersex and trans health care and who strongly disagree with World Athletic's claims about gender-affirming care. Here's Dr. Casey Orozco-Pour, who wasn't involved in any of these cases. It's insane of them to say they're offering gender-affirming care, and it makes me so angry. Only the individual themselves can define if something is gender affirming. Casey says that even if these women did want some medication, the idea of having to hit a specific number just isn't how this is supposed to work. As a doctor, there's a saying, We don't treat labs, we treat patients. We don't just artificially obsess over a number. You use the labs as one piece of information, but we are never treating the lab. That's why this is such an artificial thing that they're asking Caster to do, is that they're forcing her to become a laboratory value when body just don't work like that. Hank Bota, Christine's coach, is watching this happen as Christine takes the medications and tries to stay below that magic number, the official limit for her testosterone levels.

Every evening when I put my head down and sleep, I'm still not happy. I don't feel it's fair. And yes, I've been very vocal about the word fairness. What is fairness? But my heart is just bleeding bleeding every day. I must see this woman being pulled apart by somebody that's sitting somewhere in an office in Europe and just make a decision that is just really crazy. The Federation always talks in terms of fairness. We are protecting the fairness of competition. We are protecting the female category. We are protecting the integrity of our sport. This is a language of values.

This is Sylvia Comperasi, a bioethicist at King's College, London. Is the question of fairness in this unfair advantage question, how much of that can be answered by just the data?

No, it can be answered just by the data. When a certain federation says we're following the science, science can only get you that far. Then you decide, what do I do with this data?

In an email to me declining to do an interview, a World Athletics representative wrote that the organization, quote, has only ever been interested in protecting the female category. If we don't, then women and young girls will not choose sport. That is, and has always been, the Federation's sole motivation. But which women get protected? And which ones don't? When you're making choices about these rules, you're choosing which kinds of fairness and protection you think are most important. And that's a choice that isn't new. Here's Allison Carlson, the journalist who worked to end mandatory chromosome screening in the 1990s. When we think about difference, athlet, on lots of scales, it gets celebrated. But when the difference emanates from sex-related chromosomes, it's like we can't think straight. And maybe it's threatening to people if we don't fit into these neat categories, the binary that exists in our minds, but not in reality biologically. On May first, 2019, the Court of Arbitration for Sport released its verdict, here read by Matthew Reebe, the Court's Secretary.

The panel is a aware and realizes that the rules are discriminatory.

But they find this discrimination is acceptable, is necessary, and proportionate to achieve the objective which is sought.

Is this one of Carlos Sayo, one of Caster's lawyers, was sitting in his office in Toronto when he got the news.

I was devastated.

I was just absolutely shocked that we didn't win on anything.

It was devastating to read that the whole regulations had been upheld.

Here's World Athletic's President, Sebastian Co, talking to CNN about the case.

It was really important that the concept of free and fair open competition and on a level playing field was adopted. It may be in 30 years, 40 years time, society takes a different view, and we have other classifications. I don't know. But at this point, my responsibility was to protect two classifications, and that's what we feel we've done.

And so World Athletics had the green light to proceed, to keep these DSD regulations and potentially even expand them, which is exactly what they did in the spring of 2023, when they announced that new rules would apply to all events in track and field. And on top of that, they dropped the testosterone limit again from five down to 2.5. Which brings us to today. Christine, taking these medications and trying to make it to Paris, Max, trying to fight the rules in court. And next time, you'll hear how they both fared.

Now, I'm so nervous because it's my first time to go and contest the case. I would say that I have witnessed the most powerful moments of my career in that week. We will have a nice chat tomorrow, and I need to tell her, you are still a human being. You're not an object. I'll have the talk with her tomorrow and I'll let you know.

You've been listening to Tested from CBC, NPR's Embedded, and Bucket of Heels. The show is written, reported, and hosted by me, Rose Evalyth. Editor Editing by Allison McAdam and Veronica Simmons. Production by Osi Lena Skudman, Andrew Mambo, and Reina Cohen. Additional development, reporting, producing, and editing by Lisa Pollack. Sound design by Mitra Kaboli. Our production manager is Michael Kamel. Anna Ashtay is our digital producer. This series was mixed by Robert Rodriguez. Fact-checking by Dania Suleiman. Our intersex script consultant is Hans Lindahl. Legal support from Beverly Davis. Archival research by Hilary Dan. At CBC, Chris Oak and Cecil Fernandez are executive producers. Tanya Springer is the senior manager, and Arif Nourani is the director of CBC Podcasts. At NPR, Katie Simon is Supervising Editor for Embedded. Irene Noguchi is Executive Producer. Npr's Senior Vice President for Podcasting is Colin Campbell. We got legal support from Micah Ratner. And thanks to NPR's Managing Editor for Standards and Practices, Tony Caven. This series was created with support from a New America Fellowship. If you want to learn more about anything you've heard on the show, see behind-the-scene stuff, and keep up with what's happening to these athletes now, go to tested-podcast.

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