The competing rights of women in sport
On International Women’s Day, Chris Foulkes and Hannah Thomas examine the case of Mokgadi Caster Semenya and her appeal to the European Court of Human Rights.
Ms Semenya is challenging the discriminatory effect of the 2018 World Athletics[1] regulations which prevent athletes with disorders of sexual development from competing in certain female athletics events without undergoing medical intervention.
Background
Mokgadi Caster Semenya is a 30-year-old South African double Olympic champion. She has what is known as a Disorder of Sexual Development (‘DSD’), termed 46 XY DSD. She is legally female, identifies as female and has competed in the World Championships and the Olympics as a female athlete.
She is a successful middle-distance runner, having won Olympic gold in the 800 metres in 2012 and 2016, and gold in the World Championships in 2009, 2011 and 2017.
However, since 2018 she has been prohibited from competing in middle distance events (her specialism) due to her hormone levels caused by 46 XY DSD.
The Regulations
World Athletics (at the time the IAAF), the international governing body for athletics, has regulated the eligibility of ‘intersex’ female athletes / athletes with DSD to compete in certain female athletics events since 2011[2].
The 2011 version of the regulations were first challenged by Dutee Chand, an athlete with ‘hyperandrogenism’ (higher levels of ‘male’ hormones than females with normal sexual development). She challenged them in the Court of Arbitration for Sport (‘CAS’) on the basis that, amongst other things, they were discriminatory against female athletes, in particular those with a certain set of characteristics, and that they were based on a flawed understanding on the role of testosterone in athletic performance.
Dutee Chand’s challenge was partially upheld by CAS and the 2011 regulations were suspended for two years for the IAAF to gather and provide evidence on the relationship between testosterone and athletic performance[3].
After significant delay, in 2018 the IAAF responded to the Chand case by replacing the 2011 regulations with the Regulations Governing Qualification in the Female Category (for Athletes with Differences in Sexual Development (‘the Regulations’)[4]. These are the Regulations that are currently under challenge by Ms Semenya and Athletics South Africa (‘ASA’).
Put simply, the Regulations exclude athletes with 46 XY DSD and associated androgen sensitivity from competing in the female category in international competitions or national competitions where a world record could be set in running and hurdling events at distances from 400 metres to one mile (‘the Restricted Events’).
The athletes affected by the Regulations (‘the Affected Athletes’) are those with serum testosterone levels of 5 nmol/L or above and who are androgen-sensitive (i.e. the testosterone levels have a significant androgenising effect on the athlete). The rules do not apply to ‘XX’ females.
To be able to compete in the Restricted Events, the Affected Athletes must: be officially recognised as female or intersex; lower their blood testosterone level to below 5nmol/L for an uninterrupted period of at least 6 months; and maintain their blood testosterone below this level at all times, whether in competition or not, for as long as they wish to participate in the Restricted Events.
This effect of the Regulations is therefore to require the Affected Athletes to undergo hormone treatment (the first measure is usually contraceptive medication) and to be reactive to such treatment, before they are able to compete in the Restricted Events. Caster Semenya is one such athlete and is thus prevented from taking part in her chosen athletic events without medical intervention.
Appellate history
The Regulations were published on 23 April 2018 and on 19 June 2018 Ms Semenya and ASA launched a challenge against them in the CAS. The challenge focused on the discriminatory effect of the Regulations on females and those with particular characteristics.
On 30 April 2019 the challenge was rejected[5]. In short, the medical and expert evidence presented was sufficient for the Panel to find that higher testosterone levels afford a significant competitive advantage to athletes.
The Panel, by a majority, found that the Regulations were discriminatory, but that the discrimination was a necessary, reasonable and proportionate means of achieving a legitimate aim – namely, ensuring fair competition in female athletics in certain events. The Panel did however express “serious concerns” about the practical application of the Regulations (i.e. there is a risk that the Regulations will be implemented in a humiliating or degrading fashion, and that some athletes will not be responsive to hormone therapy).
Following the CAS’ decision, the Regulations came into force on 8 May 2019, thus preventing Ms Semenya from competing in her chosen events unless she was willing to take medication to reduce her testosterone levels to below 5 nmol/L.
Continuing her legal battle, Ms Semenya appealed the decision (along with the ASA) to the Federal Supreme Court of Switzerland (Switzerland being the home of CAS). She claimed that her fundamental human rights were infringed by the Regulations, and that their discriminatory effect violated principles of public order.
The appeal was dismissed on 25 August 2020[6]. The Federal Supreme Court of Switzerland (‘the Federal Court’) upheld the decision of CAS and found that fairness in sport is a legitimate concern and a central principle of sporting competition. The interests of other competing female athletes were also to be considered, alongside Ms Semenya’s interests. The CAS decision was compatible with public order.
The Federal Court also noted that any ‘sex testing’ would be carried out by qualified doctors and in accordance with the will of the athletes and that the athletes could refuse to undergo treatment if they wished.
On 25 February 2021 Ms Semenya announced that she will be taking her case to the European Court of Human Rights (‘ECHR’). She did so in a Tweet, which can be accessed here. Her Tweet shares the press release from her solicitors, Norton Rose Fulbright.
The appeal to the ECHR focuses on the finding of the Federal Court that the Regulations violate Ms Semenya’s right to physical integrity but refused to intervene to protect those rights. Switzerland has therefore acted in contravention of its obligations under the European Convention on Human Rights (‘the Convention’[7]) and has failed in its positive obligations to protect Ms Semenya against the violation of her Convention Rights as a result of the discriminatory Regulations.
The issues for the ECHR
The issues in Ms Semenya’s appeal are medically, legally and morally complicated. The ECHR will be considering, and in some ways comparing, the rights of all female athletes, whatever their biological make up.
The Court will have to grapple with issues of what it means to be female, the binary classification of sex in sport and the principle (and importance) of fair competition.
There can be no doubt that some other female athletes have felt that they were not competing on a level playing field when racing against Ms Semenya. But can a line fairly be drawn on the spectrum of inevitable natural advantages that all elite athletes possess?
Can it truly be sustained, as concluded by the Federal Court, that the discriminatory effect of the Regulations is proportionate[8] because female athletes have a ‘choice’ whether or not to undergo medical intervention or not? If they are unable to compete without undergoing such treatment, it is really a choice at all?
And will this appeal throw up wider issues as to the binary nature of the classification of ‘sex’ in sport?
Conclusion
Taken at face value, the Regulations have an impact upon only a small subset of society – athletes with 46 XY DSD wishing to compete in middle-distance athletics events in the female category.
However, the consequences of the Regulations affect the rights of every female athlete. World Athletics is attempting to classify what constitutes ‘sufficiently female’ to compete in certain sporting events and encouraging medical intervention to enable athletes to meet its criteria.
The decision of the ECHR is eagerly awaited and will certainly be a landmark decision for women in sport. However, the decision may not be the end of the journey for Ms Semenya. Even if the ECHR decides in her favour and concludes that Switzerland has violated her Convention rights, it remains to be seen what exactly will happen. If and how the Regulations would be changed might require determination through further protracted litigation.
Chris Foulkes and Hannah Thomas
[1] Formerly the International Association of Athletics Federations (‘IAAF’)
[2] Regulations Governing Eligibility of Females with Hyperandrogenism
[4] See here for a summary of the Regulations produced by World Athletics
[5] An executive summary of the decision can be found here
[6] Executive summary of the judgement here and full judgement here
[8] Note that this is not the sole reason for the Federal Court’s decision, but is used here by way of example
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