Editor's Note: Marjolaine is an attorney admitted to the Geneva bar (Switzerland) who specialises in sports and life sciences. She currently participates as a scientific collaborator at the University of Neuchâtel on a research project to produce the first article-by-article legal commentary of the 2015 World Anti-Doping Code.
Over the past days, we have been flooded by
media reports discussing the “Caster Semenya-case”, reports rapidly relayed in
social networks. Since the debate has a distinct legal component and since
almost every report appears to draw significantly from the legal background, I granted
myself permission – as compensation so to speak - to publish a somewhat more personal,
less legal, post than I usually would.
Let me make one thing clear from the outset
– I am still ‘agnostic’ about the question of how to solve the issues
surrounding the male versus female divide in sports. Each time I have been
asked to write or speak on the subject, I have tried to stick to describing the
legal situation and its implications. I do not have the miracle solution as to
how to handle this infinitely complex issue. And I am not sure anyone can claim
to hold that solution at this point. Like everyone, I am doing my research and
trying to be humble enough to stay within the realm of my competences.
What I do know: when discussing legal
regulation, it is usually not wise to focus disproportionality on an individual
case, no matter how much that case stands out. Humans are wired to respond to
the particular and the concrete. Caster Semenya’s story is a compelling
narrative, which can also very conveniently be supported by pictures (often in
poses that – deliberately? – do not do her justice). By contrast, legal
regulation is general and abstract and must be designed to address multiple
potential situations. I am not naïve enough to believe that regulation is not
influenced by politics and – yes - emotions. Still: law-making must be able to
distance itself from the pressure of public opinion. This is especially true if
the resulting regulations are to deliver satisfactory results on the long term,
after the public eye has turned away.
The Court of Arbitration for Sport ruling
in the Dutee Chand matter that suspended the validity of the IAAF
Hyperandrogenism Regulations was based on a lack of sufficient scientific
evidence. More precisely, the decisive factor for the CAS panel was that the
IAAF had not adduced sufficient evidence that testosterone levels - at the
threshold set in its Regulations - conferred to female athletes an advantage
that would outrank any other natural characteristic, in a manner that would place
them in a position comparable to male competitors. Absence of evidence is not
evidence of absence. Thus, the mere fact that the IAAF – reportedly – intends
to continue seeking support to regulate hyperandrogenism and related issues
does not truly amount to a ‘challenge’ of the CAS’ ruling or a ‘contempt’ for
the decision of the panel. Nor do the IOC recommendations
to the same effect. These statements are, on the contrary, the logical sequel
of the interim award and the two-year deadline given to the IAAF. I previously
made the point – along with my co-author - that the rendering of an interim
award was surprising, for various reasons related to legal technique and
arbitration practice. But the reactions of the IAAF and the IOC to that award
seem rather unsurprising. What is more significant from a legal perspective:
the CAS panel placed the burden of proof on the IAAF. This means that, as long
as the science is unsettled, women with hyperandrogenism will be given the
benefit of the doubt.
Which leads us back to Caster Semenya. I
have been reading that making history in Rio could paradoxically be
career-ending for her[i].
This is because an outstanding victory would represent outstanding indication
of her enjoying an unfair advantage. This may – unfortunately – hold true for
public rumour. However, what the CAS panel was looking for in the Dutee Chand
award is clearly scientific studies, supported by data and analysed by experts.
Evidence in court may not always be rocket science, but CAS panels do not rely
on purely anecdotic evidence either.
Meanwhile, the manner in which the topic is
being dealt with today is fundamentally divisive, when we should be aiming for
cohesion. It positions men against women, sports authorities against athletes, (presumed)
non-hyperandrogenic females against (suspected) hyperandrogenic ones. The level
playing field is an ever-elusive ideal – some may call it an illusion or utopia
- but one worth striving for. It is one of the primary reasons humans bother to
look at a couple of other humans running around a 400m loop. Perhaps
regrettably, giving legal contours to the level playing field will always
involve compromise of some sort, leaving out certain factors to include others.
Today, Caster Semenya is competing
legitimately under the rules currently applicable to her. End of the story. And
she is entitled to enjoy it - like any other individual, male or female, - who
invested years of their lives into their Olympic dream. Let us continue the
debate around the legitimacy of gender categories in sport, but without tarnishing
the reputation of individuals in the process.
[i] See e.g. http://www.bbc.com/sport/olympics/37102204
(accessed 18.08.16): “For
what greater indication of unfair advantage could there be, when the IAAF is
trying to buttress its case, than a victory unlike anything history has ever