Getting the balance right: female athletics and differences of sex development – CAS' decision in Caster Semenya

No one can dispute that fairness is integral to sport, but fair to whom? As the International Olympic Charter states as one of its fundamental principles:

"The practice of sport is a human right. Every individual must have the possibility of practising sport, without discrimination of any kind and in the Olympic spirit, which requires mutual understanding with a spirit of friendship, solidarity and fair play."

Difficulties arise, however, when fair play or fair competition (without delving into the differences between the two) conflict with other principles, namely practising sport without discrimination (and the corollary, right to equal treatment).

Yesterday, the Court of Arbitration for Sport Panel ("Panel") handed down its decision in Caster Semenya and Athletics South Africa v International Association of Athletics Foundation. The challenge was to the validity of the IAAF Eligibility Regulations for the Female Classification (Athletes with Differences of Sex Development) (the "DSD Regulations"). The DSD Regulations are concerned with 46 XY DSD, so conditions where the affected individual has XY chromosomes. They replaced the hyperandrogenism regulations, which had been successfully challenged in 2014 by Indian athlete Dutee Chand (CAS 2014/A/3759).

The Panel found that whilst the DSD Regulations are discriminatory, that discrimination is a necessary, reasonable and proportionate means of achieving a legitimate objective. The aim is ensuring fair competition in female athletics and protecting the "protected class" of female athletes in certain events.

In its award, the Panel observed that the case involves a complex collision of scientific, ethical and legal conundrums; and acknowledged that it involves incompatible, competing rights. On the one hand, the right of every athlete to compete in sport, to have their legal sex and gender identity respected, and to be free from any form of discrimination. Whilst on the other, the right of female athletes, who are relevantly biologically disadvantaged vis-à-vis male athletes, to be able to compete against female athletes and to achieve the benefits of athletic success. Any decision as to how to reconcile these rights was constrained by the accepted, necessary binary division of athletics into male events and female events, when there is no such binary division of athletes.

Whilst accepting that the DSD Regulations are prima facie discriminatory, the Panel went on to find that they were necessary. 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. That conclusion was based on the Panel's unanimous acceptance of the evidence that endogenous testosterone is the primary driver of the sex difference in sports performance between males and females. Biology, however, does not always map perfectly onto legal status and gender identity.

A majority of the Panel concluded that the DSD Regulations were proportionate, however expressed serious concerns about their practical application. The concerns particularly relate to: (a) compliance with the regulations (and the requirement that athletes maintain a natural testosterone level below 5 nmol/L) and (b) the lack of evidence justifying the inclusion of two events (1500m and one mile). The Panel therefore strongly encouraged the IAAF to address these concerns when implementing the regulations, emphasising that it is a "living document."

It is certainly a finely balanced decision, relying on the Panel's limited judicial function and resulting deference to the policy-maker, the IAAF. It will be interesting to see how the regulations can be practically and effectively implemented to ensure that they do indeed remain proportionate.

See here to read the TAS / CAS press release on the decision.