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.