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12th round of Caster Semenya’s legal fight: too close to call? - By Jeremy Abel

Editor's note: Jeremy Abel is a recent graduate of the LL.M in International Business Law and Sports of the University of Lausanne.


1.     Introduction

The famous South African athlete Caster Semenya is in the last lap of her long legal battle for her right to run without changing the natural testosterone in her body. After losing her cases before the Court of Arbitration for Sport (CAS) and the Swiss Federal Tribunal, she filed an application before the European Court of Human Rights (Court). In the meantime, the Court has released a summary of her complaint and a series of questions addressed to the parties of the case.

As is well known, she is challenging the World Athletics’ Eligibility Regulations for the Female Classification (Regulations) defining the conditions under which female and intersex athletes with certain types of differences of sex development (DSDs) can compete in international athletics events. Despite the Regulations emanating from World Athletics, the last round of her legal battle is against a new opponent: Switzerland.

The purpose of this article is to revisit the Semenya case from a European Convention on Human Rights (ECHR) perspective while considering certain excellent points made by previous contributors (see here, here and here) to this blog. Therefore, the blog will follow the basic structure of an ECHR case. The following issues raised by Semenya shall be analysed: the applicability of the ECHR, Semenya’s right to private life (Article 8 ECHR) and to non discrimination (Article 14 ECHR), as well as the proportionality of the Regulations.

2.     Applicability of the ECHR

An interesting question is how the Court will apply the ECHR to the case at hand. It has two options at its disposal. It can either use the doctrine of positive or negative obligations to resolve the case. The most logical solution would be to favour the positive obligations route. This doctrine allows the Court to hold states accountable in situations involving private parties. It obliges states to intervene in these situations and not to simply sit back and remain passive. In essence, the present case opposes two private parties: Caster Semenya on the one side and World Athletics on the other. The only connection of the case to Switzerland is a judgment by its Federal Tribunal reviewing the award rendered by the CAS. Indeed, unlike most international federations, World Athletics is registered in Monaco and not in Switzerland.

The Court’s case law also appears to favour this option. In Mutu and Pechstein, the Court indirectly stated that Switzerland’s positive obligations were at play (paras 65-67). The problem with this approach is that it makes it difficult to test a set of private regulations directly against the Convention. In its Mutu and Pechstein decision, the Court sidestepped this problem by somewhat ignoring Switzerland’s positive obligations. It simply applied the requirements of Article 6 ECHR directly to the CAS proceedings without worrying about the role of Switzerland and its Federal Tribunal.[1] Mutu and Pechstein suggests that the Court is willing to use the positive obligations doctrine and tweak it where it feels it is necessary to uphold athletes’ Convention rights. It is argued here that the Court’s approach in Semenya will be similar since the case raises several fundamental rights questions which have not been dealt with extensively by previous courts.

3.     Substantive issues

a.      Semenya’s right to private life (Article 8 ECHR)

Another crucial question is whether the Court will be willing to rely on its Article 8 ECHR case law relating to transgender persons. A.P., Garçon and Nicot is of particular importance in this context. This case was about a French law making the recognition of transgender persons’ preferred gender conditional on a sterilisation surgery or treatment. The Court stated that this law presented transgender persons not willing to undergo sterilisation with an “impossible dilemma” (para 132). They had to choose between their physical integrity or the legal recognition of their gender identity. The Court deemed this burden to be unnecessary to guarantee the principle of the inalienability of civil status and the need for consistency and reliability of civil-status records and thus in violation of Article 8 ECHR.

The Regulations create a similar dilemma. Despite having been identified by the South African State and identifying herself as a female, Semenya cannot compete in the female category unless she compromises her right to physical integrity by undergoing testosterone lowering treatment. In addition, noncompliance with the Regulations means that she cannot run the middle-distance events she excels at. It is therefore likely that she must give up her international sports career.[2]

It can be argued that both cases are comparable. While it is true that, unlike the French law, the Regulations aim her sports status and not her legal sex, both rules are not so different when one considers the specificity of her profession. As a famous athlete whose life revolves around sport, a mismatch between her legal sex and “sports” sex has major consequences on her life as a professional athlete and beyond. In these special circumstances, it is difficult to strictly differentiate the legal sex from the “sports” sex. Indeed, she finds herself in the very peculiar situation of suddenly having to explain why, after a lifetime of being female for the purposes of both sex categories, she is still female enough for one but not the other. Another distinction between the Regulations and the French law is that the latter contained a sterilization requirement absent in the former. This distinction can be relativised in two ways. Firstly, both set of rules require the same type of medical treatment: surgery or hormone treatment. Secondly, although the Regulations do not require a permanent physical change, the recommended surgical and hormonal treatment may lead to irreversible changes and ultimately sterility.[3]

b.      Semenya’s right to non discrimination (Article 14 ECHR)

Regarding the potential discriminatory nature of the Regulations in the sense of Article 14 ECHR, Semenya will most likely question why the Regulations only institute a testosterone limit for female athletes. This assertion runs up against the legal hurdle of finding an appropriate comparator. For there to be a discrimination, it must in principle be possible to compare Semenya with a class of persons who are treated more favourably. This task is not made easier by the fact that no intersex case has ever been decided by the Court.[4]

In theory, three comparisons are imaginable[5]: a comparison with male, female, or intersex athletes. The viability of each comparator depends on which definition of sex is used.[6] Sex can be understood from a civil status, gender identity or biological standpoint. It is unclear whether the Court will be convinced by World Athletics’ preference for the biological sex definition. World Athletics used this definition to argue that Semenya is “biologically male” for the purpose of athletics and must therefore be compared to male and not female athletes.[7] If the condition of participation is being “biologically female”, there is no discrimination because Semenya is being treated like all the other athletes who do not fulfil this condition.[8] However, the situation completely changes if the biological sex definition is dropped in favour of the others.

4.     Proportionality of the Regulations

Finally, the Court may have to engage in a delicate balancing act between the different interests at stake. On the one hand, there are the interests of World Athletics. As an international federation, it considers it is in the best position to develop the most appropriate rules for dividing females and males for the purpose of athletics. On the other hand, there are the opposing interests of Semenya and her fellow competitors. It is a classic case of competing rights which happen also to be fundamental goals of sport: inclusion vs fairness.[9] Including intersex athletes in the female category might be unfair towards the other female athletes. Contrary to other physical or genetical traits, high levels of testosterone are viewed by some to give intersex athletes an insurmountable advantage over their female competition. By adopting and defending the Regulations, it is clear that World Athletics shares this view and is sensitive to the fairness argument.

One way of avoiding this balancing of interests exercise is to decide that the Regulations are not fit for purpose. Without getting into scientific arguments, it appears safe to affirm that while most experts agree that testosterone has a positive effect on performance, there is still a lack of consensus on the degree of that effect.[10] Both the CAS and the Swiss Federal Tribunal overcame this uncertainty by giving a lot of weight to the statistical overrepresentation of women with DSDs in elite athletics.[11] A striking example of this overrepresentation is the women’s 800 m final at the 2016 Olympics where Semenya and two other athletes with DSDs occupied all three podium places thanks to the suspension of a previous version of the Regulations.

However, an alternative view is plausible. The capability of the Regulations to achieve their goal of ensuring fairness can be called into question on three fronts.

Firstly, there is a twofold problem relating to the quality of the evidence and the conclusions drawn from it. The quality of the evidence is low because in addition to there only existing few studies on the relationship between testosterone and performance, those that do exist rely on flawed data such as double counting athletes and times.[12] Irrespective of the concerns regarding the quality of the evidence used, the conclusions drawn from it are inconsistent because World Athletics’ choice to establish a testosterone limit for some, but not other athletic events is illogical.[13] According to the evidence, female athletes with high levels of testosterone have a competitive advantage in the following athletic disciplines: 400 m (2,73%), 400 m hurdles (2,78%), 800 m (1,78%), hammer throw (4,53%) and pole vault (2,94%).[14] No performance advantage was shown to exist in other athletic disciplines.[15] The inclusion of the 1500 m and one mile events into the Regulations but not the hammer throw and pole vault runs counter to the evidence and the goal of ensuring a level playing field.

Secondly, there appears to be no satisfying answer as to why there is no equivalent testosterone limit for male athletes despite their testosterone levels differing much more significantly[16].

Thirdly, the choice of using testosterone as the determining factor can be called into question. Given the wide range of physical attributes that are helpful in sport, it is not clear what makes testosterone so different from other physical attributes. Would a mix of physical attributes and parameters like the one used in Paralympics not be fairer and more inclusive?[17]

5.     Conclusion

The Semenya case has the potential to appreciably change international federations’ and Switzerland’s relationship with the ECHR. It is shown above that if the Court wants to apply the ECHR directly to the Regulations, it must bend the doctrine of positive obligations. Until now, the Court has not explained its unconventional use of the doctrine. Two explanations are at the Court’s disposal.[18] They are both premised on the idea that Semenya is in a position of dependence towards World Athletics.

Firstly, it is possible to extend the reasoning behind Mutu and Pechstein according to which the CAS (a private Court) must, in situations involving forced arbitration, offer the same fair trial guarantees as a state court, to all types of sports regulations.[19] Indeed, if one accepts that sports arbitration clauses are compulsory, it becomes very difficult to argue that sports regulations in general are not compulsory since the former are contained in the latter.[20]

Secondly, the Court can treat international federations analogous to state-like entities.[21] The relationship between Semenya and World Athletics is akin to that between regular citizens and a state due to the size, power, and monopolistic position it holds in the sport of athletics.[22] The Semenya case exemplifies this power imbalance well. World Athletics’ monopoly means that it can impose the Regulations upon Semenya. She cannot object to this effectively since giving up her international athletics career is not an option as she would put her livelihood at risk.[23]

In the present case, the first explanation is more fitting because World Athletics’ seat is in Monaco and not in Switzerland. If, as argued here, the Court bends the positive obligations doctrine to properly engage with the arguments raised by Semenya, this would give it the opportunity to explain its unusual approach. But even if the Court does not take this opportunity, its unconventional use of the doctrine of positive obligations would still send a message to international federations and Switzerland that they must take ECHR considerations seriously in spite of the private nature of international sports disputes.

Beyond the question of the applicability of the Convention, the Semenya case has the potential to have far-reaching consequences for the world of sports. This is because of the wide-ranging reach of the Court’s decisions and the fact that World Athletics’ policy on intersex athletes is based on a recommendation made by the International Olympic Committee (IOC). As the supreme governing body of global sports, the IOC’s policy on this matter influences sports regulations at all levels throughout the world.

Finally, the case is infused with highly relevant but difficult scientific, sports and societal issues. The discussions around the definition of sex are particularly sensitive in today’s society. The complexity and sensitive nature of the case as well as the clash between two fundamental goals of sport are all ingredients for an extremely contentious fight which will ultimately come down to the judges’ scorecards. Whilst a split decision is likely, controversy is certain.

[1] Franck Latty, "Le TAS marque des points devant la CEDH" (2018) issue 192 Revue juridique et économique du sport 31, 32.

[2] Unless she competes in disciplines not covered by the Regulations. After contemplating competing in events without testosterone limits, Caster Semenya had to give up trying to qualify for the 2020 Olympics in Tokyo.

[3] Mandates of Special Rapporteurs and the Working Group “Special Procedures Communication to the IAAF” (18 September 2018) OL OTH 62/2018 5.

[4] Although this is due to change soon. See C Delrave “Medical “normalisation” of intersex persons: third-party intervention to the ECTHR in the case of M. v. France” (Strasbourg Observers, 7 April 2021).

[5] See generally Robert Wintemute, "Recognising New Kinds of Direct Sex Discrimination: Transsexualism, Sexual Orientation and Dress Codes" (1997) vol 60 issue 3 The Modern Law Review 334, 334-336.

[6] Janis Block, Geschlechtergleichheit im Sport – Mit besonderer Berücksichtigung der Diskriminierung von trans- und intersexuellen Sportlerinnen unter den Voschriften des Allgemeinen Gleichbehandlungsgesetzes (Schriften zur Gleichstellung Band 39, Nomos 2014) 328-329.

[7] Mokgadi Caster Semenya v International Association of Athletics Federations [2019] Court of Arbitration for Sport 2018/O/57294 para 295.

[8] The same considerations apply under German law (see endnote 6).

[9]The battle over trans athletes in American schools heats up – Inclusivity bumps up against fairnessThe Economist (London, 5 September 2020).

[10] Mokgadi Caster Semenya v International Association of Athletics Federations paras 473-538.

[11] ibid para 527 and Judgment of DSD Regulations [2020] Swiss Federal Tribunal 4A_248/2019 and 4A_398/2019 para

[12] Roger Pielke Jr, Ross Tucker and Erik Boye, “Scientific Integrity and the IAAF testosterone regulations” (2019) vol 19 issue 1-2 International Sports Law Journal 18, 21-22.

[13] See also Matthieu Maisonneuve, "Tribunal arbitral du sport, Mokgadi Caster Semenya & Athletics South Africa c/ International Association of Athletics Federations (IAAF) c/ Suisse, sentence du 30 avril 2019" (2019) issue 3 Revue de l’Arbitrage 941, 955.

[14] Mokgadi Caster Semenya v International Association of Athletics Federations para 338.

[15] ibid.

[16] The normal range for men is 8-30 nmol/L compared to 0.1-1.8 nmol/L for women. See “What Caster Semenya’s case means for women’s sportThe Economist (London, 8 May 2019).

[17] Maayan Sudai “The testosterone rule – constructing fairness in professional sport” (2017) vol 4 issue 1 Journal of Law and the Biosciences 181, 193.

[18] Maisonneuve (n 13) 964-965.

[19] Björn Hessert, “Cooperation and reporting obligations in sporting investigations” (2020) issue 3-4 International Sports Law Journal 145, 149.

[20] ibid.

[21] Latty (n 1) 32.

[22] French authors speak of the similarity between the "Sporting power" and "State power". See for instance Clémentine Legendre, "La soumission de la Puissance sportive à la Convention européenne des droits de l’homme: réflexions à partir de l’arrêt Mutu et Pechstein" (2020) issue 11 Recueil Dalloz 618.

[23] Hessert (n 20) 149.

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