Stephanie David
Year of call: 2016
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.
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.
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.