By Greg Nott*
After many months of deliberation, the Federal Supreme Court of Switzerland has refused to set aside a 2019 ruling against Olympic gold medalist Caster Semenya by the Court of Arbitration for Sport (CAS). The CAS ruling had upheld controversial regulations issued by the International Association of Athletics Federations IAAF (now World Athletics).
This ruling supports World Athletics’ efforts to prevent Caster from defending her 800m gold medal at the Tokyo Olympics in 2021. To be eligible to race in future international competitions, female athletes like Caster, who have naturally elevated testosterone levels, are forced to take medication to lower their testosterone levels and, if they don’t want to, must compete against men.
Caster commented: “I am very disappointed by this ruling but refuse to let World Athletics drug me or stop me from being who I am. Excluding female athletes or endangering our health solely because of our natural abilities puts World Athletics on the wrong side of history. I will continue to fight for the human rights of female athletes, both on the track and off the track, until we can all run free the way we were born. I know what is right and will do all I can to protect basic human rights, for young girls everywhere.”
The Swiss Supreme Court found that World Athletics’ requirement of subjecting certain female athletes to drug or surgical interventions as a precondition to compete in women’s 400m to 1500m events does not amount to a violation of Swiss public policy. Importantly, the Swiss Supreme Court was bound by the controversial factual findings of the majority of the CAS Panel (without regard to the findings of the dissenting arbitrator). The Swiss Court dismissed the appeal despite finding that the World Athletics regulations seriously violate Caster’s physical integrity because the required hormonal drug intervention is not medically indicated, has negative health effects and is not based on the athlete’s free consent.
In recent months I have been lamenting the discriminatory policies that are often unfairly exercised against African and Asian women in sport. I believe that race science has targeted these women, hindering them from competing on the international stage. Tennis champion Serena Williams has endured similar treatment to Semenya, and in 2018 complained of invasive doping tests. Even though she’s never tested positive for doping, Williams says she’s been tested four times more than her sporting peers.
In the cases of athletes such as Caster, it seems they have been targeted for an apparent reason, but the underlying reason is often prejudice and unfair policies that strike at the essence of their human dignity. I can’t help but wonder if these international courts in the echelons of power were more diverse and included people of colour, whether their decisions might be more favourable and inclusive of African women in particular.
The recent ruling against Caster is not aligned with the court of public opinion and with reputable bodies and organisations who have significant influence. In April 2019, the World Medical Association stated that the World Athletics rules “constitute a flagrant discrimination based on the genetic variation of female athletes and are contrary to international medical ethics and human rights standards”.
Caster also has the full support of the United Nations High Commissioner for Human Rights who, in a June 2020 report titled “Intersection of race and gender discrimination in sport”, called on World Athletics to “review, revise and revoke” its eligibility rules.
The United Nations report stresses concerns that the regulations “effectively legitimize the surveillance of all women athletes based on stereotypes of femininity” and “single out a group of women athletes, putting them at risk of repercussions far beyond the inability to compete,” and holds that the implementation of such regulations “denies athletes with variations in sex characteristics an equal right to participate in sports and violates the right to non-discrimination more broadly.”
The report also states: “Noting with concern also that the eligibility regulations for the female classification published by the International Association of Athletics Federations (IAAF) that came into effect on 1 November 2018 are not compatible with international human rights norms and standards, including the rights of women with differences of sex development, and concerned at the absence of legitimate and justifiable evidence for the regulations to the extent that they may not be reasonable and objective, and that there is no clear relationship of proportionality between the aim of the regulations and the proposed measures and their impact.”
In addition, the report “Recognises that sports regulations and practices that discriminate against women and girls on the basis of race, gender or any other ground of discrimination can lead to the exclusion of such women and girls from competing as such on the basis of their physical and biological traits, reinforce harmful gender stereotypes, racism, sexism and stigma, and infringe upon the dignity, privacy, bodily integrity and bodily autonomy of women and girls.”
In refusing to invalidate the World Athletics rules, neither the CAS or the Swiss Supreme Court decided whether the World Athletics rules are lawful or enforceable under the domestic law of various countries around the world, such as Japan, with the CAS finding that this “will ultimately be a matter for the courts of the various jurisdictions in question to determine”. This means that athletes can challenge the ruling domestically and we should do so.
Naturally, Caster is disappointed, but she says the door is closed but not locked and we are considering all options for a legal fightback. As long as a sporting federation holds the power to force female athletes with DSD to medically alter their testosterone levels, there is more work to be done.
Until World Athletics rules and policies reflect our former President Mandela’s ideals, we need to continue to challenge discriminatory policies that prejudice the human dignity and rights of certain members of society.