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Caster Semenya at the SFT – in 10 points - By Jack Anderson

Editor's note: Jack Anderson is Professor and Director of Sports Law Studies at the University of Melbourne


1.     Caster Semenya appealed to the Swiss Federal Court (SFT) arguing that World Athletics’ regulations violated human rights principles relating to gender discrimination and human dignity. The Swiss Federal Tribunal (as at CAS) held that World Athletics’ regulations may prima facie breach such human rights principles but were “necessary, reasonable and proportionate” to maintain fairness in women's athletics;

2.     Although in part addressed at the SFT, expect further legal argument on this in the domestic courts of South Africa or at the ECtHR, and in the following ways:

  • Necessity - is the athletic advantage that Caster Semenya has of such a scientifically-measurable extent that it is necessary for World Athletics to intervene in such an invasive manner? In a broader ethical sense, is the incidence of what the World Athletics’ regulations call “difference of sex development” of such prevalence in the general population, and specifically in middle-distance athletics, that, by way of the principle of “sporting beneficence”, intervention is justified. Or, in contrast, is the incidence of DSD not at a level which justifies a departure from the ethical principle of primum non nocere – first, do no harm?
  • Reasonableness - if World Athletics’ regulations are necessary, is the manner of implementation reasonable and in line with the principle of human and bodily integrity? In answering such a question, the focus must be on the fact that in order to continue to compete in her favourite events (such as the 800 metres) Caster Semenya will have to lower her testosterone level through medication;
  • Proportionate - if World Athletics’ regulations are necessary and reasonable is the manner of implementation proportionate? In answering such a question, the focus must be on whether the regulations disproportionately discriminate against a certain, limited group of athletes in a certain, limited number of events and in a certain, limited manner.


3.     Overall, in assessing whether the qualification of a human right (e.g. freedom of expression) can be justified, the usual issue for a court is that that human right is competing against or in conflict with another human right or issue of public importance (in the instance of free expression, that competing issue might be one of public order or health, for example). The fundamental issue in the Caster Semenya proceedings seems to be whether the qualification of anti-discrimination principles can be justified, not on grounds such as, in the absence of such regulation, other athletes might be endangered in competing against Caster Semenya; but rather and simply that without intervention, it is unfair, in the sporting sense, on other athletes to compete against Caster Semenya. Is a purely sporting right (a level playing field) sufficient of itself to justify a derogation from a fundamental principle of human rights or is that derogation something that can reasonably be reserved to a sporting body on the grounds of fair competition for all?


4.     In sum, both CAS and now the SFT, have said that World Athletics has justified the deviation from human rights law because (a) it is necessary, as premised on a scientifically measurable, sporting disadvantage and (b) the resulting regulations have been drafted/implemented in a reasonable/proportionate manner.


5.     A key legal issue in the future is how the CAS’s award and the SFT’s judgment can be reconciled with the opinion of the United Nations High Commissioner for Human Rights in a report presented recently to the 44th session of the Human Rights Council (15 June to 3 July 2020) on the “Intersection of race and gender discrimination in sport”. In that report, the UN High Commissioner for Human Rights elaborated on relevant international human rights norms and standards and the corresponding obligations of States and the responsibilities of sporting bodies towards women and girl athletes. In doing so, the report identified possible gaps in the protection of the human rights of women and girls in sports and including the manner in which sport resolves disputes with a significant human rights element to them.


6.     At paragraph 53 of the report, the UN High Commission for Human Rights concluded pertinently:

“In addition, regulations regarding female eligibility to compete in sport raise concerns about the ability of all athletes to enjoy their rights. Private sports bodies and their rules and regulations dominate the current global and corporatized structure of sport governance. Concerns have been raised in this context indicating that women and girl athletes may face serious obstacles to accessing effective remedies and seeking full redress for violations of their human rights. In accordance with their obligations under international human rights law, States should ensure that non-State actors, including sport governing bodies, respect human rights in their own regulatory regimes and are accountable for breaches.”


7.     It is also of note that prior to the SFT judgment and with implied reference to the Semenya award at CAS, the UN High Commissioner for Human Rights noted the following two points (at paragraph 47). First, the process under Swiss law of appealing a CAS award to the SFT includes an appeal premised on public policy ground of prohibition from discriminatory measures -  A. v. Z., FIFA and X., Case No. 4A_304/2013, judgment of 3 March 2014, sect. 5.1. Second, the Commissioner noted that:

“Other national courts may also refuse to recognize and enforce an arbitral award if doing so would be contrary to the public policy of that State, which may include certain fundamental human rights.”

8.     In this, the UN High Commissioner relied on article V (2) (b) of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards. The Commission did admit however that such a decision by a state (e.g., if South Africa refused to recognised the CAS award in the Semenya case) would be “jurisdictionally limited, as it would not be capable of suspending the regulations of a sport governing body [World Athletics] worldwide.”


9.     With regard to World Athletics’ regulations, World Athletics itself appear to recognise the dynamic, living nature of the research and policy objectives that underpin the regulations. It follows that where new evidence is presented (on, for example, the scientific foundations of the regulations or their manner of implementation or impact on athletes) the necessity, reasonable and proportionality of the regulations can and ought to be reassessed.


10.  Finally, the proceedings as whole might suggest that where an analogous human rights related case arises again (and not just in athletics) an athlete may resile from having it resolved at CAS, arguing, in the language of human rights law, that CAS does not provide an “effective remedy”.  But the focus on CAS is somewhat misplaced. CAS’s jurisdiction is founded in, granted to it by and largely constricted to the interpretation of the regulations of the referring sports body – in this case World Athletics. Although of little consolation to the athlete herself, the key legal lesson from the Caster Semenya proceedings – which appear far from over -  may be that the campaign to embed human rights principles in the regulations of sports bodies must continue apace and where sport bodies agree to comply with such principles, human rights norms should permeate not just their regulatory activities but should also enable athletes to rely on any and all aspects of human rights law up to and including seeking effective remedy at CAS.  

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