Editor's note: Jeremy Abel
is a recent graduate of the LL.M in International Business Law and Sports of
the University of Lausanne.
1. Introduction
The famous
South African athlete Caster Semenya is in the last lap of her long legal
battle for her right to run without changing the natural testosterone in her
body. After losing her cases before the Court of Arbitration for Sport (CAS)
and the Swiss Federal Tribunal, she filed an application
before the European Court of Human Rights (Court). In the meantime, the Court
has released
a summary of her complaint and a series of questions addressed to the parties
of the case.
As is well
known, she is challenging the World Athletics’ Eligibility
Regulations for the Female Classification (Regulations) defining the conditions under which female
and intersex athletes with certain types of differences of sex development
(DSDs) can compete in international athletics events. Despite the Regulations
emanating from World Athletics, the last round of her legal battle is against a
new opponent: Switzerland.
The purpose
of this article is to revisit the Semenya case from a European
Convention on Human Rights (ECHR) perspective while considering certain
excellent points made by previous contributors (see here,
here
and here)
to this blog. Therefore, the blog will follow the basic structure of an ECHR
case. The following issues raised by Semenya shall be analysed: the applicability
of the ECHR, Semenya’s right to private life (Article 8 ECHR) and to non
discrimination (Article 14 ECHR), as well as the proportionality of the
Regulations.
2. Applicability
of the ECHR
An
interesting question is how the Court will apply the ECHR to the case at hand.
It has two options at its disposal. It can either use the doctrine of positive
or negative obligations to resolve the case. The most logical solution would be
to favour the positive obligations route. This doctrine allows the Court to hold states
accountable in situations involving private parties. It obliges states to
intervene in these situations and not to simply sit back and remain passive. In
essence, the present case opposes two private parties: Caster Semenya on the
one side and World Athletics on the other. The only connection of the case to
Switzerland is a judgment by its Federal Tribunal reviewing the award rendered
by the CAS. Indeed, unlike most international federations, World Athletics is
registered in Monaco and not in Switzerland.
The Court’s
case law also appears to favour this option. In Mutu
and Pechstein, the Court indirectly stated that Switzerland’s
positive obligations were at play (paras 65-67). The problem with this approach
is that it makes it difficult to test a set of private regulations directly
against the Convention. In its Mutu and Pechstein decision, the Court
sidestepped this problem by somewhat ignoring Switzerland’s positive obligations.
It simply applied the requirements of Article 6 ECHR directly to the CAS
proceedings without worrying about the role of Switzerland and its Federal
Tribunal.[1] Mutu and Pechstein
suggests that the Court is willing to use the positive obligations doctrine and
tweak it where it feels it is necessary to uphold athletes’ Convention rights.
It is argued here that the Court’s approach in Semenya will be similar
since the case raises several fundamental rights questions which have not been
dealt with extensively by previous courts.
3. Substantive
issues
a. Semenya’s right to private life (Article 8
ECHR)
Another
crucial question is whether the Court will be willing to rely on its Article 8
ECHR case law relating to transgender persons. A.P.,
Garçon and Nicot is of particular importance in this context. This
case was about a French law making the recognition of transgender persons’
preferred gender conditional on a sterilisation surgery or treatment. The Court
stated that this law presented transgender persons not willing to undergo
sterilisation with an “impossible dilemma” (para 132). They had to choose
between their physical integrity or the legal recognition of their gender
identity. The Court deemed this burden to be unnecessary
to guarantee
the principle of the
inalienability of civil status and the
need for consistency and reliability of civil-status records and
thus in violation of Article 8 ECHR.
The
Regulations create a similar dilemma. Despite having been identified by the
South African State and identifying herself as a female, Semenya cannot compete
in the female category unless she compromises her right to physical integrity
by undergoing testosterone lowering treatment. In addition, noncompliance with
the Regulations means that she cannot run the middle-distance events she excels
at. It is therefore likely that she must give up her international sports
career.[2]
It can be
argued that both cases are comparable. While it is true that, unlike the French
law, the Regulations aim her sports status and not her legal sex, both rules
are not so different when one considers the specificity of her profession. As a
famous athlete whose life revolves around sport, a mismatch between her legal
sex and “sports” sex has major consequences on her life as a professional
athlete and beyond. In these special circumstances, it is difficult to strictly
differentiate the legal sex from the “sports” sex. Indeed, she finds herself in
the very peculiar situation of suddenly having to explain why, after a lifetime
of being female for the purposes of both sex categories, she is still female enough
for one but not the other. Another distinction between the Regulations and the
French law is that the latter contained a sterilization requirement absent in
the former. This distinction can be relativised in two ways. Firstly, both set
of rules require the same type of medical treatment: surgery or hormone
treatment. Secondly, although the Regulations do not require a permanent
physical change, the recommended surgical and hormonal treatment may lead to
irreversible changes and ultimately sterility.[3]
b. Semenya’s right to non discrimination (Article
14 ECHR)
Regarding
the potential discriminatory nature of the Regulations in the sense of Article
14 ECHR, Semenya will most likely question why the Regulations only institute a
testosterone limit for female athletes. This assertion runs up against the
legal hurdle of finding an appropriate comparator. For there to be a
discrimination, it must in principle be possible to compare Semenya with a
class of persons who are treated more favourably. This task is not made easier
by the fact that no intersex case has ever been decided by the Court.[4]
In theory,
three comparisons are imaginable[5]: a comparison with male,
female, or intersex athletes. The viability of each comparator depends on which
definition of sex is used.[6] Sex can be understood from
a civil status, gender identity or biological standpoint. It is unclear whether
the Court will be convinced by World Athletics’ preference for the biological
sex definition. World Athletics used this definition to argue that Semenya is
“biologically male” for the purpose of athletics and must therefore be compared
to male and not female athletes.[7] If the condition of
participation is being “biologically female”, there is no discrimination
because Semenya is being treated like all the other athletes who do not fulfil
this condition.[8]
However, the situation completely changes if the biological sex definition is
dropped in favour of the others.
4. Proportionality
of the Regulations
Finally,
the Court may have to engage in a delicate balancing act between the different
interests at stake. On the one hand, there are the interests of World
Athletics. As an international federation, it considers it is in the best
position to develop the most appropriate rules for dividing females and males for
the purpose of athletics. On the other hand, there are the opposing interests
of Semenya and her fellow competitors. It is a classic case of competing rights
which happen also to be fundamental goals of sport: inclusion vs fairness.[9] Including intersex
athletes in the female category might be unfair towards the other female
athletes. Contrary to other physical or genetical traits, high levels of testosterone
are viewed by some to give intersex athletes an insurmountable advantage over
their female competition. By adopting and defending the Regulations, it is
clear that World Athletics shares
this view and is sensitive to the fairness argument.
One way of
avoiding this balancing of interests exercise is to decide that the Regulations
are not fit for purpose. Without getting into scientific arguments, it appears
safe to affirm that while most experts agree that testosterone has a positive
effect on performance, there is still a lack of consensus on the degree of that
effect.[10] Both the CAS and the
Swiss Federal Tribunal overcame this uncertainty by giving a lot of weight to
the statistical overrepresentation of women with DSDs in elite athletics.[11] A striking example of
this overrepresentation is the women’s 800 m final at the 2016 Olympics where Semenya
and two other athletes with DSDs occupied
all three podium places thanks to the suspension of a previous version of the
Regulations.
However, an
alternative view is plausible. The capability of the Regulations to achieve
their goal of ensuring fairness can be called into question on three fronts.
Firstly,
there is a twofold problem relating to the quality of the evidence and the
conclusions drawn from it. The quality of the evidence is low because in
addition to there only existing few studies on the relationship between
testosterone and performance, those that do exist rely on flawed data such as
double counting athletes and times.[12] Irrespective of the
concerns regarding the quality of the evidence used, the conclusions drawn from
it are inconsistent because World Athletics’ choice to establish a testosterone
limit for some, but not other athletic events is illogical.[13] According to the
evidence, female athletes with high levels of testosterone have a competitive advantage
in the following athletic disciplines: 400 m (2,73%), 400 m hurdles (2,78%),
800 m (1,78%), hammer throw (4,53%) and pole vault (2,94%).[14] No performance advantage
was shown to exist in other athletic disciplines.[15] The inclusion of the 1500
m and one mile events into the Regulations but not the hammer throw and pole
vault runs counter to the evidence and the goal of ensuring a level playing
field.
Secondly,
there appears to be no satisfying answer as to why there is no equivalent
testosterone limit for male athletes despite their testosterone levels
differing much more significantly[16].
Thirdly,
the choice of using testosterone as the determining factor can be called into
question. Given the wide range of physical attributes that are helpful in
sport, it is not clear what makes testosterone so different from other physical
attributes. Would a mix of physical attributes and parameters like the one used
in Paralympics not be fairer and more inclusive?[17]
5. Conclusion
The Semenya
case has the potential to appreciably change international federations’ and
Switzerland’s relationship with the ECHR. It is shown above that if the Court
wants to apply the ECHR directly to the Regulations, it must bend the doctrine
of positive obligations. Until now, the Court has not explained its
unconventional use of the doctrine. Two explanations are at the Court’s
disposal.[18]
They are both premised on the idea that Semenya is in a position of dependence
towards World Athletics.
Firstly, it
is possible to extend the reasoning behind Mutu and Pechstein according
to which the CAS (a private Court) must, in situations involving forced arbitration,
offer the same fair trial guarantees as a state court, to all types of sports
regulations.[19]
Indeed, if one accepts that sports arbitration clauses are compulsory, it
becomes very difficult to argue that sports regulations in general are not
compulsory since the former are contained in the latter.[20]
Secondly, the
Court can treat international federations analogous to state-like entities.[21] The relationship between
Semenya and World Athletics is akin to that between regular citizens and a state
due to the size, power, and monopolistic position it holds in the sport of
athletics.[22]
The Semenya case exemplifies this power imbalance well. World Athletics’
monopoly means that it can impose the Regulations upon Semenya. She cannot
object to this effectively since giving up her international athletics career
is not an option as she would put her livelihood at risk.[23]
In the
present case, the first explanation is more fitting because World Athletics’
seat is in Monaco and not in Switzerland. If, as argued here, the Court bends
the positive obligations doctrine to properly engage with the arguments raised
by Semenya, this would give it the opportunity to explain its unusual approach.
But even if the Court does not take this opportunity, its unconventional use of
the doctrine of positive obligations would still send a message to
international federations and Switzerland that they must take ECHR considerations
seriously in spite of the private nature of international sports disputes.
Beyond the
question of the applicability of the Convention, the Semenya case has
the potential to have far-reaching consequences for the world of sports. This
is because of the wide-ranging reach of the Court’s decisions and the fact that
World Athletics’ policy on intersex athletes is based on a recommendation
made by the International Olympic Committee (IOC). As the supreme governing
body of global sports, the IOC’s policy on this matter influences sports
regulations at all levels throughout the world.
Finally,
the case is infused with highly relevant but difficult scientific, sports and
societal issues. The discussions around the definition of sex are particularly
sensitive in today’s society. The complexity and sensitive nature of the case
as well as the clash between two fundamental goals of sport are all ingredients
for an extremely contentious fight which will ultimately come down to the
judges’ scorecards. Whilst a split decision is likely, controversy is certain.
[1] Franck Latty,
"Le TAS marque des points devant la CEDH" (2018)
issue 192 Revue juridique et économique du sport 31, 32.
[3] Mandates
of Special Rapporteurs and the Working Group “Special
Procedures Communication to the IAAF” (18
September 2018) OL OTH 62/2018 5.
[4] Although
this is due to change soon. See C Delrave “Medical
“normalisation” of intersex persons: third-party intervention to the ECTHR in
the case of M. v. France” (Strasbourg Observers, 7 April 2021).
[6] Janis Block, Geschlechtergleichheit
im Sport – Mit besonderer Berücksichtigung der Diskriminierung von trans- und
intersexuellen Sportlerinnen unter den Voschriften des Allgemeinen
Gleichbehandlungsgesetzes (Schriften zur Gleichstellung Band 39, Nomos 2014)
328-329.
[8] The same
considerations apply under German law (see endnote 6).
[9] “The
battle over trans athletes in American schools heats up – Inclusivity bumps up
against fairness” The Economist (London, 5 September 2020).
[10] Mokgadi
Caster Semenya v International Association of Athletics Federations paras
473-538.
[12] Roger
Pielke Jr, Ross Tucker and Erik Boye, “Scientific
Integrity and the IAAF testosterone regulations” (2019)
vol 19 issue 1-2 International Sports Law Journal 18, 21-22.
[14] Mokgadi
Caster Semenya v International Association of Athletics Federations
para 338.
[15] ibid.
[17] Maayan
Sudai “The
testosterone rule – constructing fairness in professional sport”
(2017) vol 4 issue 1 Journal of Law and the Biosciences 181, 193.
[19] Björn
Hessert, “Cooperation
and reporting obligations in sporting investigations”
(2020) issue 3-4 International Sports Law Journal 145, 149.
[20] ibid.
[21] Latty (n 1)
32.
[23] Hessert (n
20) 149.