Editor's note: Kevin Gerenni is Assistant Professor in Public International Law (Facultad de Derecho de la Universidad de Buenos Aires) and LLM Candidate 2021 in Public International Law at the London School of Economics.

Even though the decision rendered by the SFT in the Semenya Case was foreseeable, the Tribunal did put forward some concerning reasoning in terms of public policy (“ordre public”) and human rights. In case Semenya decides to challenge the Swiss state before the ECtHR, one can expect the case to shake some grounds at the ECtHR, which would be faced with the question of the application to sport not of fair trial guarantees (as in Mutu & Pechstein) but of substantial human rights provisions such as the prohibition of discrimination on the basis of sex (Article 14 ECHR) and the right to private life (Article 8 ECHR).

Under Swiss law, the reasons that may lead to the annulment of an arbitral award are enumerated in art. 190 of the Swiss Private International Law Act (PILA). Semenya’s strongest case relied on art. 190(2)(e): the award’s incompatibility with public policy. Naturally, this point concentrated most of the SFT’s attention. In order to analyze the compatibility of the CAS award with Swiss public policy, the SFT focused on three main potential breaches of human rights: prohibition of discrimination, personality rights, and human dignity. In doing so, it put forward certain observations that differ with European human rights standards and the ECtHR’s jurisprudence. The purpose of this short article is to analyze those discrepancies and, consequently, Semenya’s prospects of success before the Strasbourg Tribunal.

I.               The scope of Swiss public policy versus ECHR guarantees

To begin with, the SFT distinguished between Swiss public policy and the scope of the ECHR provisions:

“An award is incompatible with public policy if it disregards essential and widely accepted values which, according to the views prevailing in Switzerland, should constitute the foundation of any legal system” (para. 9.1).[1]

“This is the place to specify that the violation of the provisions of the ECHR or of the Constitution does not count among the grievances restrictively enumerated by art. 190(2) PILA. It is therefore not possible to directly invoke such a violation. (…) Thus, the plea alleging a violation of public policy is not admissible insofar it simply tends to establish that the award in question is contrary to the various guarantees drawn from the ECHR and the Constitution.” (para. 9.2).

Contrary to this interpretation, the ECtHR has referred to the fundamental role of the ECHR in specifying the reach of a European public policy. In Loizidou v. Turkey (Preliminary Objections), it stated:

“(…) the Court must bear in mind the special character of the Convention as an instrument of European public order (ordre public) for the protection of individual human beings and its mission (…) "to ensure the observance of the engagements undertaken by the High Contracting Parties" ” (para. 93).      

In that same judgment, it remarked the value of the ECHR as “a constitutional instrument of European public order (ordre public)” (para. 75). Similar understandings can be found in Bosphorus v. Ireland and Avotiņš v. Latvia, among others. As a consequence of this preeminent position that the ECHR holds, certain interests of the State must be outweighed by the Convention’s role in the field of human rights (Bosphorus at para. 156).

II.             The concept of “horizontal effect” in human rights violations

The SFT continued with the analysis of the prohibition of discrimination, for which it partially rest upon an argument that evidently collides with European human rights criteria. Although the Tribunal also concluded that the “relationship between an athlete and a global sports federation shows some similarities to those between an individual and a State” (para. 9.4), it did argue that under Swiss law the prohibition of discrimination does not have a direct horizontal effect. The SFT considered that:

“Although the SFT has consistently held that the prohibition of discrimination is a matter of public policy (…) it has done so, primarily, in order to protect the individual vis-à-vis the State. In this respect, it may be noted that, from the point of view of Swiss constitutional law, the case law considers that the guarantee of the prohibition of discrimination is addressed to the State and does not, in principle, produce a direct horizontal effect on relations between private persons. (…) It is therefore far from obvious that the prohibition of discrimination by private individuals is one of the essential and widely recognized values which, according to the prevailing conceptions in Switzerland, should form the basis of any legal system.” (para. 9.4).

The ECtHR has a long tradition of deeming States responsible for not preventing or sanctioning human rights violations between private persons, which means that the ECHR also applies horizontally. Since its 1981 ruling Young, James and Webster v. the UK, the Court has repeatedly held that the responsibility of a State is engaged if a violation of one of the Convention’s rights is the result of non-observance by that State of its obligation under Article 1 to secure those rights and freedoms to everyone within its jurisdiction.[2]

In Pla and Puncernau v. Andorra, the Court held the State responsible for the rulings of its domestic courts, which did not redress an individual from the discrimination inflicted by another private person. The Court, referring to its duties, clearly affirmed that:

“In exercising the European supervision incumbent on it, it cannot remain passive where a national court’s interpretation of a legal act, be it a testamentary disposition, a private contract, a public document, a statutory provision or an administrative practice appears unreasonable, arbitrary or, as in the present case, blatantly inconsistent with the prohibition of discrimination established by Article 14 and more broadly with the principles underlying the Convention.” (para. 59).

Finally, in this same vein in Identoba and Others v. Georgia, the ECtHR sanctioned the State by explaining that the difference in treatment leading to discrimination can source from a purely private action, which in this particular case included attacks to a transgender person.

III.           The necessity and proportionality of the DSD regulations

Throughout its ruling, the SFT followed the reasoning advanced by the CAS to determine that the IAAF (today “World Athletics”) DSD regulations were not in violation of fundamental human rights. With a view to analyzing a recourse to the ECtHR, I will focus on the discrimination and human dignity sections of the ruling (for a remarkably-detailed insight of the SFT’s core findings please refer to  Marjolaine Viret’s recent blog).

In assessing the necessity of the DSD regulations –pursuant to the alleged legitimate aim of fair competition– the SFT considered that “female athletes are disadvantaged and deprived of chances of success when they have to compete against 46 XY DSD athletes. The statistics speak for themselves.” (para. 9.8.3.4). A fact that does not seem to be getting attention is the “800 Metres Women” all-time records table, which lists three women with a better time than Caster Semenya. None of these three women were reported to be DSD athletes. Also, the scientific articles that supposedly demonstrate unequivocal advantage for DSD athletes have been denounced as flawed (for example, by Pielke Jr., Tucker & Boye). Nevertheless, the SFT invoked the ECtHR’s FNASS and Others v. France to shockingly conclude that “the search for a fair sport represents an important goal which is capable of justifying serious encroachments upon sportspeople’s rights”[3] (para. 9.8.3.3).

In addition, the SFT assessed the proportionality of the regulations vis-à-vis the potential gender identity implications. The SFT primarily relied on the allegedly-mild side effects caused by the hormonal treatment: “no different in nature from the side effects experienced by thousands, if not millions, of other women of type XX” (para. 9.8.3.5).

Referring to gender identity (stemming from human dignity), the SFT argued that:

“It must be made clear that the sentence does not in any way seek to question the female sex of the 46 XY DSD athletes or to determine whether they are sufficiently “female”. It is not a question of knowing what a woman or an intersex person is. The only issue to be resolved is whether it is contrary to human dignity to create certain rules of eligibility, for the purposes of sporting equity and equal opportunity, applicable only to certain women who enjoy an insurmountable advantage arising from certain innate biological characteristics. (…) In some contexts, as specific competitive sport, it is permissible that biological characteristics may, exceptionally and for the purposes of fairness and equality of opportunity, overshadow a person’s legal sex or gender identity.” (para. 11.1).

The SFT struggles to highlight that Semenya’s “female sex” is not under question. However, the DSD regulations, implemented in competitions that are divided into the male/female binary, denote that Semenya’s innate sex is not female enough as to compete in female events. On the other hand, she is allowed to compete in male events.

The ECtHR has a growing jurisprudence relating to discrimination on the basis of sex which, especially linked to gender identity, leads to violations of the ECHR Articles 14 and 8. In the 2002 leading case Goodwin v. the UK which dealt with Article 8 ECHR violations, the Court remarked that:

“It is not apparent to the Court that the chromosomal element, amongst all the others, must inevitably take on decisive significance for the purposes of legal attribution of gender identity for transsexuals.” (para. 82).

It is true that Goodwin involved the rights of a trans person, not intersex.[4] However, as the European Commission points out in its Trans and intersex equality rights in Europe – A comparative analysis, the judgment was the inception of States obligation to legally recognize preferred gender in Europe. Similar conclusions in favor of gender identity would later appear, among others, in Y. Y. v Turkey, Van Kück v. Germany and Identoba and Others v. Georgia (this last one dealing with Article 14 ECHR). In Garçon and Nicot v. France the Court underpinned that “the right to respect for private life under Article 8 applies fully to gender identity, as a component of personal identity. This holds true for all individuals.” (para. 95). Later in that judgment, it rendered a particularly relevant observation for Semenya’s case:

“Medical treatment cannot be considered to be the subject of genuine consent when the fact of not submitting to it deprives the person concerned of the full exercise of his or her right to gender identity and personal development, which, as previously stated, is a fundamental aspect of the right to respect for private life.” (para. 130).

It must be noted that this paragraph pertains particularly to the world of sport. “Personal development” is a fundamental part of the Principles of the Olympic Movement, as this article by Durántez Corral et al. indicates.

Conclusions

The reasoning behind the above paragraphs supports Semenya’s case before the ECtHR and would give her a serious chance to prevail in Strasbourg. Even though it is true that the Court has mostly endorsed the lex sportiva system with its judgments FNASS, Platini and Mutu & Pechstein, the latter did aim at certain fair trial deficiencies and triggered concrete changes. Could Semenya’s case be stronger? Yes, for instance if Switzerland had ratified Protocol No. 12 ECHR or if the former IAAF were based in Switzerland instead of Monaco (an issue which the SFT took care to highlight).

On the other hand, the judges could additionally resort to extremely relevant reports in the field of intersex rights, namely the Council of Europe’s document on eliminating discrimination against intersex people, or refer to the categorical document against DSD regulations written by three UN experts. Needless to say, these instruments support the athlete’s claims even further.

The scenario is set for Semenya to create considerable turmoil if she decides to take the case to Strasbourg, where the ECtHR will have to engage –once again and deeper this time– with lex sportiva and Switzerland’s role in ensuring that sports governing bodies comply with human rights. Or, will it look the other way?

*All translations of the SFT’s decision done by the author from French, except where otherwise noted.

[1] Translation done by Marjolaine Viret for her blog article “Chronicle of a Defeat Foretold: Dissecting the Swiss Federal Tribunal’s Semenya Decision”, available here.

[2] See Spielmann, D.; “Chapter 14: The European Convention on Human Rights, The European Court of Human Rights” in Human Rights and the Private Sphere: A Comparative Study (p. 430); Eds. Oliver, D. &  Fedtke, J.; Routledge; 2007. 

[3] Translation done by Marjolaine Viret for her blog article “Chronicle of a Defeat Foretold: Dissecting the Swiss Federal Tribunal’s Semenya Decision”, available here.

[4] As shown in the excerpt, the judgment did address the relevance (or the lack of it) of the “chromosomal element” in defining a person’s gender.