Editor's note: Sofia Balzaretti is a Graduate research assistant and a PhD candidate at
the University of Fribourg (Switzerland) where she is writing a thesis on the Protection against Gender Stereotypes in
International Law. In addition to research in human rights and feminist
legal theory, she has also carried out some research in legal philosophy and on
the relationship between gender and the law.
The International
Association of Athletics Federations (IAAF), the monitoring body of track and
field athletics, regularly submitted South African middle distance runner and
Olympic gold medalist Mokgadi Caster Semenya to sex verification tests when it
began questioning her sexual characteristics and speculating whether her body
belonged on the Disorder of Sex Development (DSD) spectrum. DSD Syndrome is often
defined as an “intersex condition” which affects the clear development of
either/or genitalia, gonads and chromosomes into one distinctive sex or
another. The spectrum of the intersex condition is particularly wide, and the
disorder can sometimes be minimal - some cases of female infertility can actually
be explained by an intersex condition.
The IAAF deemed the
controversial sex verification tests necessary on the grounds that it was
required to prove Semenya did not have a “medical condition” which could give
her an “unfair advantage”. It was eventually found that, because of an intersex
trait, Semenya did have abnormally high levels of testosterone for a woman,
which, in the IAAF’s opinion, justified a need for regulatory hormonal adjustments
in order for her to keep competing in the women’s category. The IAAF also funded
research to determine how ‘hyperandrogenism’ affects athletic performance. In 2018,
it issued Eligibility Regulations on Female Classification (“Athlete with
Differences of Sexual Development”) for events from 400m to the mile, including
400m, hurdles races, 800m and 1’500m. The IAAF rules indicated that in case of
an existing high level of testosterone, suppression or regulation by
chemotherapy, hormonal castration, and/or iatrogenic irradiation was mandatory
in order to take part in these events.
Semenya and her
lawyers challenged the IAAF Regulations in front of the CAS, who, in a very
controversial decision, deemed the Regulations a necessary, reasonable
and proportionate mean “of achieving the aim of what is described as the
integrity of female athletics and for the upholding of the ‘protected class’ of
female athletes in certain events” (§626).
The CAS Ruling
Semenya and her
attorneys claimed that forcing her to get unwanted medication represented a
violation of human rights. On the 1st May 2019, the Swiss-based Court
of Arbitration of Sport (CAS) ruled in favor of the restrictions placed on female
athletes with high levels of testosterone by the IAAF. The direct consequence
of this decision for Semenya was the obligation for her to take testosterone
suppressants in order to continue competing in her category of IAAF events.
In March 2019, the
United Nations Human Rights Council issued a resolution indicating the IAAF Regulations were “not
compatible with international human rights norms and standards, including the
rights of women with differences of sex development” and that there was “no
clear relationship of proportionality between the aim of the regulations and
the proposed measures and their impact.”
Because the
Regulations established conditions and restrictions which were targeted at the
female (or intersex) athlete population exclusively and did not impose any equivalent
conditions or restrictions on male athletes, the CAS Panel considered that the Regulations
were, prima facie discriminatory on
grounds of legal sex. After reminding that “it is common ground that a rule
that imposes differential treatment on the basis of a particular protected
characteristic is valid and lawful if it is a necessary, reasonable and a
proportionate means of attaining a legitimate objective” (§548), the Panel
considered that its sole responsibility was to determine whether the DSD
Regulations were necessary, reasonable and proportionate. As such, the Panel
said it was “not required to (…) appraise the adequacy of the IAAF’s
policy-making process”.
The Swiss Federal Tribunal and ordre public
A decision from the
CAS can only be challenged at the Swiss Federal Tribunal (SFT) on a limited
number of grounds, enclosed in art. 190 al. 2 of the Federal Act on Private
International Law (PILA), which include claiming that the principle of equal
treatment of the parties or their right to be heard in an adversarial procedure
has not been observed (lit. d) and that the award is incompatible with public
policy (lit. e). At the beginning of June 2019, after an ex parte request, the SFT, Switzerland’s highest court, granted
Semenya a temporary suspension of the IAAF rules on testosterone limits. She
was able to compete over distances of 400 to 1’500m without medication, until the
SFT issued a ruling.
Because it was
considered that the discrimination was necessary, reasonable and proportionate
in comparison with the vast majority of non-DSD women, the only outcome for
Semenya’s lawyers was to argue on the violation of the principle of public order.
The 30th July 2019, the SFT reversed the ruling that temporarily lifted
the application of the IAAF’s regulations, thus impeding her to defend her 800m
title at the World Championships in Doha in September 2019. The SFT concluded
that “neither the allegation of an infringement of the principle of
non-discrimination, nor the alleged violation of ordre public due to an infringement of their personality and human
dignity appeared with high probability to
be well founded”. Welcoming the decision, the IAAF stated that, in certain
particular cases, “biology trumps identity”.
The elements of comparison
Body Policing
Admitting
that “the imperfect alignment between nature, law and identity is what gives
rise to the conundrum at the heart of this case” (§559), the CAS stated that:
“On true analysis, (…) the purpose of the
male-female divide in competitive athletics is not to protect athletes with a
female legal sex from having to compete against athletes with a male legal sex.
Nor is it to protect athletes with a female gender identity from having to compete
against athletes with a male gender identity. Rather, it is to protect
individuals whose bodies have developed in a certain way following puberty from
having to compete against individuals who, by virtue of their bodies having developed
in a different way following puberty, possess certain physical traits that create
such a significant performance advantage that fair competition between the two groups
is not possible.”
The public opinion could
not help but point the finger at the underlying hypocrisy of the decision, in
comparison with similar cases, both inside and outside of the sports world.
Firstly, the same type of policy and legal arguments are often held for controlling
certain types of bodies exclusively, whilst leaving others out of the line of
sight. In the sports world, it is certainly the case: think of the impressive
decoration of Olympian swimmer Michael Phelps aligned with the god-like praises
he received for his physical strength and capacity; for instance. On the contrary, leaving “abnormally” tall
basket-ball players on the bench so as to give naturally shorter players a
chance to win, or testing male athletes with poor athletic results in suspicion
they might have low levels of testosterone seems absurd. In fact, the latter
are only tested as to make sure they do not take anything effectively modifying
their capacities in competing. Semenya and her lawyers did point to the fact
that “it is illogical
and unnecessary to regulate one genetic trait while celebrating all the others”
(CAS decision, §53).
Out of the sports
world, indications of “naturalness” in pro-life arguments or governments’
refusal to medically cover the suppression of hormones in transgender
reassignment cases are also examples of body policing. The case therefore raises
the central question of how stereotypes, especially gender ones, give a social
meaning to a fact and how legal regulation can confirm it, thus perpetuating
it.
The social meaning of women and gender
Taking a step away
from Semenya’s cause célèbre, it must
be stressed that, for long, women were not accepted to compete in the Olympics
and that their progressive integration was only made possible when a redefinition
of the norms of femininity and masculinity, as they relate to sports and
competition, occurred. This means that medical tests were carried out and, as a
backlash to noticing the instability and fluidity of sex categories, those very
categories were reinforced and redefined according to stereotypes. In other
words, the sports world went very far to ensure there was a biological
difference so that the natural and social order as it was could not be
disrupted.
If we try to move
away from the (in my opinion, sterile) debate on biological differences
(remembering that the latter has also been explained by anthropologists as
being a consequence of our gendered social order[1]),
we should ask ourselves who has the power to define the norms of femininity and
masculinity. “Woman” and “man” have very particular social meanings. Furthermore,
commentators often qualify the sex verification tests as being racially flawed.
In this sense, the discussion is also of epistemological importance: the bonus corpus is never the female body, and
is always the white male one, with “naturally” good athletic abilities. True,
scientific results are usually dependent on a certain political order[2],
as are any other empirical social-situated findings. The CAS Panel said that an
assessment of the likely impact of the DSD Regulations on wider society would
require “an analysis of multifaceted sociological issues which are not amenable
to judicial resolution by an arbitral tribunal (…)” (§518). And, as such, it is
certainly not for an arbitration court to have the power to (re)define gender
categories, which are intrinsically political and historical, and are not
limited to the sports world.
Appealing to the ECtHR
If she does not
prevail before the SFT, Semenya could still appeal to the European Court of
Human Rights, alleging a breach of Article 14 and/or Article 8[3].
It may give the Strasbourg Court an interesting opportunity to comment on
gender opposition and binarity, as well as on the social limitations put on
gendered bodies. The gender stereotypes discussion is not a new one; regional
and international courts have had the opportunity, on many occasions, to
comment on the need to combat harmful gender stereotypes[4].
However, they usually do so in relation to human rights law and to the
principles of equality and non-discrimination. Even if, of course, not every unjustified
discrimination is rooted in stereotypes[5],
they seldom point at the wrong of gender stereotypes per se. Hopefully this may lead the ECtHR to further reflect on the
harmfulness of gender stereotypes, beyond the well-established categories in
need of protection against unjustified discrimination.
The CAS practically
said that it was bound by biology. If anything, the results of the sex
verification tests should have proven that Semenya’s body has incredible
athletic abilities, with no requirements of medically modifying it whatsoever.
Conclusion
In a letter to the IAAF about their regulations, United
Nations experts on health, torture, and women’s rights wrote:
“The assessment for ‘exclusion or treatment’
based on the IAAF regulations relies on suspicion and speculation, based on
stereotypes about femininity. This effectively legitimizes widespread
surveillance of all women athletes by requesting national federations as well as
doctors, doping officials, and other official personnel to scrutinize women
athletes’ perceived femininity, which can include appearance, gender
expression, and sexuality. Women who are understood to be “suspicious” about
their natural physical traits are tied to subjective and cultural expectations
regarding which bodies and modes of gender expression are “appropriate,” or
even valorised by adherence to traditional or normative aesthetics of
femininity. Gender and sex-based stereotyping and stigma have a long history,
not only of causing psychological harm to women and gender minorities, but also
of increasing the possibility of violence against them.”
The social norms of
gender act as a blur on reality, based on the stereotype that “a real woman”
should not be that good of an athlete. It provides us with an overview of how
public policy decisions are justified by scientific findings, operating in a
gender-normative environment. The discrimination was considered “necessary,
reasonable and proportionate” in comparison with the vast majority of non-DSD
women, but it somehow appears to be a debate on the equality
between women and men and on reaffirming the importance of the “fixed duality
of sexual difference”[6].
The CAS Panel
said that it was “faced with conflicting rights concerning the rights of female
athletes who do, and do not, have DSD” (§554).
Interestingly
enough, the more women are compared to each other, on the grounds of fairness, the
stronger the female gender category is reinforced.
[3] The ECtHR had considered an application brought
following an unsuccessful appeal to the Swiss Federal Tribunal in the October
2018 decision ECtHR, Mutu
and Pechstein v Switzerland, applications no. 40575/10 and no. 67474/10, ECLI:CE:ECHR:2018:1002JUD004057510, alleging
breaches of Article 6 of the European Convention on Human Rights.
[4]
The Office of the High Commissioner for Human Rights has broadly defined the
notion of “harmful gender stereotypes”, as sexist beliefs, which include
representing women in roles considered traditional; as mothers and household
heads, as subordinates of men or as sexual objects. In 2013, the OHCHR prepared
a report
on sex and gender stereotypes, which outlines the practice of treaty bodies and
their reference to gender stereotypes. The obligations of States with regard to
stereotypes are those set out in Article 5 lit. a CEDAW, reinforced by Article
2 lit. f. which provides that States must “take all appropriate measures,
including legislation, to modify or abolish existing laws, regulations, customs
and practices which constitute discrimination against women”. At European
level, judgments of the ECtHR have concerned stereotypes related in particular
to sexuality (Kalucza v. Hungary),
reproduction (A. B. C. v. Ireland;
R. R. v. Poland)
or domestic violence (Valiuliené v.
Lithuania; Opuz v. Turkey).
See also Konstantin Markin v.
Russia; Carvalho Pinto de
Sousa Morais v. Portugal; Khamtokhu and
Aksenchick v. Russia.