Caster Semenya – Difficult Policy Decisions and Deference

Caster Semenya – Difficult Policy Decisions and Deference

CategoryArticles Author Stephanie David Date

“I am a woman and I am a world-class athlete. The IAAF will not drug me or stop me from being who I am.” – Caster Semenya [1]

It is reported that on 29 May 2019 Caster Semenya, 800m Olympic champion, appealed the decision of the Court of Arbitration for Sport (“CAS”) dated 1 May 2019 to the Swiss Federal Tribunal; and that Athletics South Africa has recently joined her in the appeal.

As discussed in an earlier post [see here], the CAS had found that whilst the IAAF Eligibility Regulations for the Female Classification (Athletes with Differences of Sex Development) (the “DSD Regulations”) were prima facie discriminatory, but that discrimination is a necessary, reasonable and proportionate means of achieving a legitimate objective. The objective is to ensure fair competition in female athletics and safeguarding the “protected class” of female athletes in certain events.

Given it is legitimate to have separate categories of male and female competition, it is then necessary to devise an objective, fair and effective means of determining which individuals may, and which may not, participate in those categories. Ultimately, that separation is based on biology rather than legal status, because biology determines an individual’s physical traits and insuperable advantage. The panel’s conclusion was based upon its unanimous acceptance of the evidence that endogenous testosterone is the primary driver of the difference in sports performance between males and females, but biology does not always map perfectly onto legal status and gender identity. Accordingly, the panel concluded that the regulations are proportionate.

Whilst making various observations as to the practical application of the DSD regulations, the panel ultimately relied upon its judicial function and deferred to the policy-maker, the IAAF.

On what grounds can the CAS award be challenged?

The scope of any such appeal is tightly circumscribed by Switzerland’s Federal Code of Private International Law (“Code”). Article 190 of the Code allows a final arbitral award to be challenged only:

  1. If the sole arbitrator was designated or the arbitral tribunal was constituted irregularly;
  2. If the arbitral tribunal erroneously held that it did or did not have jurisdiction;
  3. If the arbitral tribunal ruled on matters beyond the claims submitted  to it or if it failed to rule on one of the claims;
  4. If the equality of the parties or their right to be heard in adversarial proceeding was not respected;
  5. If the award is incompatible with Swiss public policy (ordre public).

Whilst not having seen the grounds of appeal, the most obvious one would seem to be that the award is incompatible with public policy, particularly substantive public policy. For example, in the Matuzalem case the Federal Tribunal set aside the CAS award for breach of substantive public policy because the sanction imposed on the player by FIFA and upheld by CAS, consisting in an unlimited ban for not having paid compensation to his former club, was in violation of the prohibition against excessive commitments set out in Article 27.2 of the Swiss Civil Code (see Federal Tribunal, Judgment 4A_558/2011 of 27 March 2012, Matuzalem, at 4.3.5). It is reported that Semenya’s appeal is based on fundamental human rights, although we do not know exactly how it is framed. Given the scope, however, of expert evidence that the CAS panel considered, will the Swiss court be willing to delve into the substance or will the court defer to the arbitral tribunal?[2]

So far the Swiss court has acted robustly: on 3 June 2019, it indicated that it had “super-provisionally instructed the IAAF to suspend the application of the ‘Eligibility Regulations for the Female Classification for athletes with differences of sex development’ with respect to the claimant, until the decision on the request for issuance of provisional measures.” [3] It is not known, however, when the court will issue an interlocutory order containing the provisional measures. We understand the IAAF has issued a press release (see here). That press release clarifies that the order only relates to Semenya. In the meantime, whilst the provisional order is in force (we understand until 25th June 2019), Semenya is allowed to compete without taking testosterone-reducing medication.

If the appeal is unsuccessful?

It might be open to Caster Semenya to apply to the European Court of Human Rights (“ECtHR”) (subject to jurisdictional arguments given she is a South African national). The Court has previously considered applications brought following unsuccessful appeals to the Swiss Federal Court: see the decision from October 2018 in Mutu and Pechstein v Switzerland (applications no. 40575/10 and no. 67474/10) (which concerned a Romanian and a German national). In that case the applicants challenged the lawfulness of the proceedings brought by athletes before the CAS (and thus alleged breaches of Article 6 of the European Convention on Human Rights).

The ECtHR has a reputation for guarding against discrimination in the enjoyment of Convention rights, particularly in relation to certain categories of discrimination: for example, on the grounds of sex in Abdulaziz, Cabales and Balkandali v the United Kingdom (1985) 7 E.H/R/R 471. Weighed against that, however, the ECtHR also tends to defer when there are difficult questions of policy, especially the balancing of competing interests in circumstances where there is lack of European consensus: for instance, cases involving the right to life (Evans v United Kingdom (2008) 46 E.H.R.R 34).

Even if the ECtHR is not the appropriate forum, more broadly, it would be interesting to see exactly how such an alleged violation could be framed – Article 14 (and similar non-discrimination provisions) prohibit discrimination on the grounds of sex, but this case ultimately turns upon different definitions of sex. Moreover, discrimination claims in and of themselves rely upon static definitions in order to prove unjustified differential treatment between individuals on the basis of certain immutable characteristics. In Semenya’s case, would that characteristic have to be based upon an “other status” (see e.g. Article 14), such as (self-defining) female athletes with XY chromosones competing in the restricted events (400m to mile) as compared to those with XX? Consideration would then be given to whether that differential treatment can be reasonably justified, which brings us back to the CAS panel’s initial reasoning.

[1] According to various news sources

[2] Expert evidence in gynaecology, andrology and the causes, diagnosis, effects and treatment of DSD; genetics, endocrinology and pharmacology; exercise physiology and sports performance; medical and research ethics; sports regulation and governance; and statistics.

[3] BBC see here.

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