Editor's note: Michele Krech is a JSD Candidate and SSHRC Doctoral Fellow at NYU School of Law. She was retained as a consultant by counsel for Caster Semenya in the proceedings before the Court of Arbitration for Sport discussed above. She also contributed to two reports mentioned in this blog post: the Report of UN High Commissioner for Human Rights, Intersection of race and gender discrimination in sport (June 2020); and the Human Rights Watch Report, “They’re Chasing Us Away from Sport”: Human Rights Violations in Sex Testing of Elite Women Athletes (December 2020).
This blog was first published by the Völkerrechtsblog and is republished here with authorization. Michele Krech will be joining our next Zoom In webinar on 31 March to discuss the next steps in the Caster Semenya case.
Sport is the field par excellence in which discrimination
against intersex people has been made most visible.
Commissioner for Human Rights, Council of Europe
Issue Paper: Human rights and intersex people (2015)
Olympic and world champion athlete Caster Semenya
is asking the European Court of Human Rights (ECtHR) to make sure all
women athletes are “allowed to run free, for once and for all”. Semenya
brings her application against Switzerland, which has allowed a private
sport association and a private sport court to decide – with only the
most minimal appellate review by a national judicial authority – what it
takes for women, legally and socially identified as such all their
lives, to count as women in the context of athletics. I consider how
Semenya’s application might bring human rights, sex, and sport into
conversation in ways not yet seen in a judicial forum.
Semenya, a South African national, competes in the sport of track and
field, which is governed internationally by a private association, World Athletics, headquartered in Monaco. A few years ago, World Athletics introduced new Regulations barring women with innate variations of sex characteristics
from competing in certain women’s events, unless they medically reduce
their atypically high testosterone levels. Semenya first challenged the
Regulations before the Court of Arbitration for Sport
(CAS) – an international arbitral tribunal located in Switzerland and
commonly known as the “supreme court of sport”. After the majority of
the CAS panel upheld the Regulations, Semenya appealed to Switzerland’s highest judicial authority, the Swiss Federal Tribunal (SFT), which dismissed her claim, leaving the Regulations – and “sport sex” – in place.
All the while, the UN Human Rights Council‘s independent experts and the UN High Commissioner for Human Rights, along with Human Rights Watch, the World Medical Association, and various organizations focused on women’s and LGBTQI+
equality in sport, have expressed serious concern that the Regulations
contravene international human rights norms and standards. However, no
court has squarely decided this question. The CAS panel measured the
Regulations against the non-discrimination provisions of the World Athletics Constitution and the Olympic Charter
(para. 424), finding it unnecessary to delve into the “detailed
principles” of “international human rights law including those that
apply in Monaco … and the domestic laws of many countries in which
[World Athletics] has members and holds international competitions”
(para. 544). Whether the Regulations were contrary to such laws was
deemed a matter for the courts of those jurisdictions to decide (para.
555). But because the CAS decision is an international arbitral award,
the SFT was restricted, pursuant to the Federal Statute on Private International Law, to reviewing only one substantive ground of appeal: whether the CAS decision was compatible with Swiss public policy
(i.e. the most fundamental values that, according to prevailing
opinions in Switzerland, should form the basis of any legal order). As
the SFT explained, while the principles underpinning the Swiss
Constitution or the European Convention of Human Rights (ECHR) could be
considered when defining public policy, the provisions of these
instruments could not be directly invoked to challenge the CAS decision
(paras. 9.1 to 9.2).
The ECtHR’s consideration of Semenya’s application will therefore
mark the first time a court evaluates the private regulations of World
Athletics (and, particularly, the role of Switzerland in upholding them)
against international human rights law. It may also mark the first time
the ECtHR decides a case of discrimination based on sex
characteristics. Given such novelty, what else might be new and
different before the ECtHR compared to the past (quasi)judicial
processes? I consider this question in two (intricately connected) parts
– the facts and the law – where the ECtHR could play a remedial role.
The Facts: Sex before the ECtHR
The CAS panel characterized the case as one of “significant
scientific complexity” and remarked on both the lack of consensus among
experts and the “paucity of evidence” regarding certain matters
concerning the effect of testosterone on the athletic performance (para.
582). The majority of the panel found, however, that the totality of
the evidence provided adequate support for World Athletics’ claim that
the women targeted by the Regulations “enjoy a significant performance
advantage over other female athletes, which is of such magnitude as to
be capable of subverting fair competition within the female category”
(para. 538). This finding was also central to decision of the SFT, which
was bound to rule based on the facts found by the CAS. The SFT made
clear that, pursuant to its own constitutive law,
it could not correct or supplement the arbitrators’ findings, even if
the facts had been established in a manifestly incorrect manner or in
violation of the law (para. 5.2.2).
Meanwhile, abundant scholarly critiques have been registered against World Athletics’ evidence, ranging from the methodologies used to the conclusions drawn. Moreover, much of this evidence was produced “in-house”
by World Athletics; the leaders of its own Health and Science
Department conducted the main scientific study relied on to justify the
Regulations. Without delving deeper into this apparent lack of
independence, it is notable that the conflated “scientific” and
“legislative” process here is a private one; no Swiss public authority
sought evidence to inform or evaluate the regulatory decision at issue.
To what extent, then, might the ECtHR reassess the evidence? While the Court was not set up
as a court of first or fourth instance – that is, to establish the
basic facts of a case or to re-evaluate the facts established by a
domestic court – it does require parties to substantiate their claims,
and is free to assess the admissibility, relevance, and probative value
of the evidence put forth. The Court may request additional evidence,
draw inferences from the absence of evidence, and even engage in fact-finding if the evidence is contested or unclear. To resolve uncertainty, the Court may rely on evidence from external actors, including experts and academics, as well as a wide variety of third-party interveners.
Considering this range of evidence would reveal that understandings
of sex in athletics cannot be detached from understandings of sex beyond
the sports sphere. Indeed, sport
has been shown to be especially effective at disguising and
transmitting socio-scientific ideologies – including those related to testosterone
– as self-evident truth. While there are limits to the ECtHR’s ability
to decide complex socio-scientific questions, it need not accept factual
findings made (tenuously)
by the CAS and not by Switzerland. Moreover, it should become clear to
the ECtHR that “science” cannot provide a definitive answer to the
question before it; in fact, the (selective) way science has been deployed by World Athletics is at the very heart of the alleged human rights violations.
The Law: Sport before the ECtHR
A number of rights guaranteed by the ECHR
are pertinent in Semenya’s case. Most obvious is Article 8, which
encompasses the right to personal autonomy and identity, including
physical, psychological, and moral integrity. The “impossible choices” and documented harms
inherent in the Regulations clearly interfere with this right. In
addition, Article 14 requires member States to secure to everyone within
their jurisdiction all Convention rights “without discrimination on any
ground”. The Regulations apply only to women with certain sex
characteristics (which the Commissioner for Human Rights has said fall under sex as a prohibited ground of discrimination) and arguably exhibit racial and regional bias.
Whatever Convention rights are invoked, the ECtHR will have to decide
whether any infringement is legally justifiable. To begin, any
potential infringement of Article 8 must be “in accordance with the law”
– that is, it must have some basis in domestic law. However, unlike
antidoping rules enacted by public authorities – which the ECtHR has held
meet this test – the Regulations at issue in Semenya’s case are not
part of Swiss law or based on any international treaty. Switzerland will
therefore be in the strange position of defending Regulations enacted
by a private association located in Monaco.
In this regard, Switzerland will have to establish that the
Regulations pursue one of the legitimate aims identified in the ECHR.
The ECtHR has previously recognized
“fair play and equality of opportunity” in sport as constituting such
an aim. More critically, however, Switzerland will have to establish
that the Regulations are “necessary in a democratic society” to achieve
this aim. In addition to the evidentiary shortcomings discussed already,
it is not clear that the Regulations serve a “pressing social need”
like antidoping “whereabouts” rules do, according to the ECtHR. The need
for the latter was based on abundant State-adduced evidence that doping
harms the physical and mental health of athletes and sets a dangerous
example for youth. The “danger” that Switzerland is seeking (or allowing
World Athletics) to avoid in Semenya’s case is much less apparent. In
fact, it is Semenya and other athletes targeted by the Regulations, as
well as the youth that look up to them, that are put most at risk.
It therefore cannot be said that the ECtHR has established a blanket
principle that the pursuit of fairness can justify serious infringements
of athletes’ rights, as the SFT implied in its decision (para.
188.8.131.52). Surely mandating medically unnecessary drug use (or
surgery) for certain athletes, as a condition of eligibility for the
female category of competition, is not analogous to prohibiting it (with therapeutic use exemptions) for all athletes.
In any case, the ECtHR’s practice is to “balance” individual
interests and the interests of the community as a whole. But who makes
up the relevant community? The majority of the CAS panel found, for
example, that because of “constraints on the [its] competence and role”
it was neither necessary nor appropriate for it to consider “the
possible wider impact” of the Regulations outside the “segment of
society” governed by World Athletics (para. 589). However, it is not
just Semenya’s athletic career, but her entire life, that is affected by
the Regulations. Likewise, it is not just elite women athletes without
intersex traits who comprise the community with interests at stake (and
has been adduced to characterize these interests). A much broader
community may have an interest in seeing the unhindered potential of
every athlete on display, and the whole of the LGBTQI+ community may
have an interest in avoiding the stigmatization that flows from
mandatory “normalization” procedures in any sphere of life. The fact
that sport is “a massively visible social practice, extensively relayed
worldwide” makes it all the more important which community or
communities are counted and valued in the Court’s assessment.
Finally, the scope of the relevant community will also be important to the ECtHR’s consideration of whether there is a relevant European consensus, which in turn informs how great a “margin of appreciation”
(i.e. degree of deference) is to be granted to Switzerland. There may
be a common European approach reflected in the calls of the Commissioner for Human Rights and the Parliamentary Assembly
to end medically unnecessary sex-“normalizing” interventions without
free and fully informed consent. When it comes to sport eligibility
rules, though, it could be said that the common approach is to defer to
private international governing bodies like World Athletics. But any
such “consensus by omission” only highlights the structural failure of
States to uphold – proactively, where necessary – human rights in the
context of sport. Indeed, World Athletics’ Regulations prevent any
consensus (or lack thereof) from emerging among States by restricting
athletes’ access to domestic courts. Therefore, Switzerland – as the
home of the CAS – and the SFT – as the judicial authority with exclusive
jurisdiction to review CAS awards – would seem to have a unique
responsibility to secure the human rights of athletes. In other words,
because Switzerland is effectively speaking for a worldwide community,
its margin of appreciation should be very narrow.
When it comes time for the ECtHR to consider the merits of Semenya’s
application, it will have to decide whether the paradoxical concept of “sport sex“,
as upheld by the SFT, can be sustained in accordance with the ECHR. The
limitations of the judicial processes to date point to the potential –
if not the promise – of the ECtHR to (re)consider the full range of
facts and to directly apply human rights law within athletics. Whatever
the ECtHR decides, its decision will have significant implications far
beyond both Switzerland and sport.
The author gratefully acknowledges Gráinne
de Búrca, Antoine Duval, Katrina Karkazis, and Gabriele Wadlig for their
input on this piece.