Richard, Charlotte and Sarah were law student interns, participating in the WS Society Summer Internship programme during August 2019. This article summarises their research and presentation.
The Court of Arbitration for Sport (CAS) has recently upheld the IAAF Eligibility Regulations that restrict female athletes with Differences of Sex Development (DSDs) from competing in certain international athletic events. Although the Regulations were found to be discriminatory, they were upheld by the Panel in the interests of fair competition. Semenya’s legal team is in the process of appealing the decision to the Swiss Federal Tribunal.
The IAAF’s Eligibility Regulations for female classification aim to exclude women who receive a performance advantage due to the physiologically masculinising effects of testosterone from competing in the female category. The Regulations apply to ‘Relevant Athletes’ with a 46 XY DSD, circulating testosterone levels over 5 nmol/L, and enough sensitivity to testosterone for that to have a material effect. DSDs are a range of naturally occurring benign variations on biological sex. Athletes with 46 XY DSDs are women with an XY chromosome who produce higher levels of testosterone, who have been raised and identify as female.
The Regulations only apply to distances between 400m and 1 mile at international competitions, and for a Relevant Athlete to compete in the female category, they must lower their blood testosterone level with hormone suppressant treatment. Without medication, they may compete in non-international events, non-restricted distances, or in the male category. This narrow applicability can be interpreted as either the minimum impact on as few athletes as possible to preserve fairness, or as particularly targeted discrimination.
Caster Semenya raised her challenge to the IAAF’s Regulations at the CAS based in Lausanne, Switzerland. CAS is an independent arbitration body dealing with disputes arising from global sport. It applies the rules of the relevant sports governing body, alongside applicable national law where relevant and agreed by the parties.
Semenya sought a decision that would set aside the Regulations and thereby allow her to continue to compete without restriction. The CAS decision upheld the IAAF Regulations on the basis that although it was discriminatory, the Regulations were a necessary and proportionate way of achieving the IAAF’s legitimate aim of preserving fair competition.
Having been unsuccessful at CAS, Semenya has raised an appeal in the Swiss judicial system. CAS is a private legal person in Swiss law. Its arbitration awards are subject to the appellate jurisdiction of the Swiss Federal Tribunal on the grounds set out in Article 190(2) of the Code on International Private Law 1987. This includes a public policy ground (A 190(2)(e)) which is defined broadly to include any fundamental legal principle incorporated into Swiss jurisprudence. These principles include the rights set out in the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR). Therefore they form part of Swiss domestic law and can be vindicated in Swiss domestic courts, failing which, the European Court of Human Rights (ECtHR) in Strasbourg. Semenya’s Swiss appeal is likely to focus on human rights issues, and these are analysed below.
The Human Rights Issues
A number of Convention rights could be invoked in an appeal. Violations of these rights may be justified by balancing competing interests and considering objective factors. Despite some serious ethical concerns, it is unclear how the Swiss Federal Tribunal would perform this analysis, but judging by the tone of a recent press release it is likely that it would reach a similar conclusion to CAS. As indicated, a further avenue of redress is to challenge the Regulations at the ECtHR. Although the ECtHR has a strong reputation for protecting against discrimination, there is a real possibility it would favour a deferential approach. The case is heavily bound up in questions of policy, and there is a lack of European consensus in the area. It follows, therefore, that the proportionality of any alleged human rights interferences may be deemed to fall within the Swiss court’s margin of appreciation.
Article 8: Respect for private life
The testing, treatment, and scrutiny involved in implementing the Regulations could have a serious impact on Article 8 rights to respect for private life. The concept of ‘private life’ is broadly interpreted as guaranteeing physical, moral, and psychological integrity, privacy, and identity. This includes protecting access to professional activities and rights to reputation, safeguarding self determination of gender identity.
In regard to issues of physical integrity, the Regulations do not respect the principles of informed consent or medical ethics. Semenya and others have stated they felt coerced into unnecessary tests and treatment in order to maintain their careers and livelihood.
In relation to issues of privacy, the Regulations impose strict obligations to preserve dignity and privacy, but such provisions have not been respected in the past. There are remaining fears that they are not strong enough, and that insensitive comments and rumours spread by IAAF office bearers may have stigmatising effects and traumatic consequences for athletes.
Article 13: Right to remedy
Where an individual’s Convention right has been breached, the individual must have a mechanism in the national courts in order to establish and uphold their rights.
This does not mean that an action to uphold Convention rights must succeed in all circumstances. If - as with the Swiss Federal Tribunal - a court has never upheld an Article 190(2)(e) challenge to an arbitration award on Convention rights grounds, a question arises as to whether the Swiss courts provide an effective way to vindicate Convention rights. Semenya’s Article 13 rights would likely come under consideration in the event that her appeal at the Swiss Federal Tribunal was unsuccessful and she continued her action at the ECtHR.
Article 14: Prohibition of discrimination
Semenya could invoke Article 14 and claim that discrimination has affected the enjoyment of one or more of her Convention rights. A finding of direct discrimination requires an individual to be treated less favourably than a relevant comparator by reason of a protected ground. The protected ground of ‘other status’ has been subject to a broad interpretation by the European Court. It has been found to include sexual orientation, gender identity, and transgender status. As such, a discrimination claim based on ‘other status’ would likely extend to being a female with 46 XY DSD.
Article 14 violations are, however, subject to objective justification. If follows that if direct discrimination is established, consideration would return to the legitimate aim of the Regulations and to questions of proportionality.
Given the limited means of legal redress available to Semenya, the broader social and political pressures in play could have a major bearing on the case and have the potential to influence IAAF policy going forward.
A Weak Scientific Basis?
At present there is not a strong scientific understanding of sex differences, and there is ongoing debate on what advantages hormonal differences provide. CAS accepted IAAF expert testimony despite concerns about transparency and bias, and there has been a backlash from the broader medical and scientific community. While the role of testosterone is not well understood and there are serious concerns about the medical evidence, there is a tentative consensus that testerone does provide some form of advantage. The remaining question is whether it is significant enough to justify such disparate treatment. While these concerns may have little legal influence, as the Swiss Federal Tribunal does not have the power to review fact evidence, the public pressure to re-examine the matter may necessitate reconsidering the scientific basis and necessity of the Regulations.
The Problematic Narrative
Ever since her arrival onto the global athletic scene at the 2009 Berlin World Championships, Semenya has been subject to intense media scrutiny. Articles viciously attacked her physical appearance, her deep voice and speculated about her anatomy. The demonisation of Semenya has continued, and is evident in the media coverage of the CAS ruling. Semenya, as well as the other athletes affected by the DSD Regulations are innocent persons. This mistreatment is not only inhumane, it spreads misinformation and is unhelpful to the wider debate.
Equally, however, athletes who publicly support the CAS ruling have also been subject to vilification. Paula Radcliffe is a notable example. Having defended the CAS decision as a necessary safeguard to fair competition in female athletics, Radcliffe was accused not only of being ignorant, but of poor sportsmanship. Death threats and online abuse followed, suggesting that the toxic narrative has also infiltrated the wider discussion. The attacks on athletes in favour of the ruling is problematic. It threatens to censor an important side of the debate and the unique perspective athletes have to offer. After all, while human rights implications lie at the centre of Semenya’s case, they are firmly rooted in what is a sporting issue. In light of this, it is vital that athletes in favour of the IAAF Regulations and CAS decision can speak freely. Only then can there be an informed debate where both sides are subject to challenge, and a solution to this complex situation found.
Political and Commercial Pressure
As stated, the Swiss Federal Tribunal appears sceptical of the merits of Semenya’s appeal and uncertainties remain as to how her case would be handled by the ECtHR. Timing considerations are also important. A subsequent challenge to the IAAF Regulations at European level would leave the 2019 Doha World Championships and the 2020 Tokyo Olympic Games out of reach for Semenya.
It does not necessarily follow, however, that Semenya’s tenure as one of the greatest middle-distance runners is coming to an end. Pressure against the IAAF and the DSD Regulations is building. Not only has Semenya received backing from the South African Government, who indicate it will take steps to support her and the ‘fight for her fundamental human rights’, several global sporting bodies have also demonstrated their opposition to the IAAF. More significant, perhaps, is the concern raised by the United Nations Human Rights Council. During its Fortieth Session in March, the Council noted the incompatibility of the Regulations with international human rights standards, including the right to privacy and the right to non-discrimination, and has committed itself to considering the matter further.
In relation to commercial pressure, Semenya has recently become the face of Nike’s campaign promoting acceptance. It is in the brand’s interest, therefore, that she continues to compete in the high profile events to which the Regulations apply. As such, Semenya may additionally receive the formal backing of the global super brand. It may be the case, therefore, that legal redress is not the solution to the case, and that it is political and commercial pressure which will ultimately summon a change to the IAAF Regulations.
The decision raises more questions than answers. In our view, the CAS Panel’s legal reasoning was sound. While it found that the discrimination was a proportionate means to achieve the legitimate aim of the Regulations, it did note that this assessment may change pending further observation of their practical implementation and effects. We agree that the Regulations require sensitive ongoing scrutiny given the social climate they will be operating in, and the serious ethical and evidential concerns that remain.