Caster Semenya - What Is Fair & Meaningful Competition?

The Federal Supreme Court of Switzerland has dismissed Caster Semenya’s appeal against regulations that require female athletes to suppress naturally high levels of testosterone.[1] The decision upholds the 2019 ruling of the Court of Arbitration for Sport (‘CAS’) regarding female runners with differences of sexual development (‘DSD’).[2]

Semenya is a double Olympic and three-time world champion in the women’s 800m race. Her long-distance battle, however, has taken its form in a legal action against controversial regulations issued by World Athletics. The regulations subject female athletes with high levels of testosterone to undertake medical interventions in order to compete in women’s 400m to one mile races (‘Restricted Events’).[3]

This piece outlines the regulatory framework within which Semenya has grounded her legal challenge. It proceeds to consider the reasons for the decision of the Swiss Supreme Court before discussing its ethical and human rights implications. It argues the regulations are discriminatory and should be repealed.

I REGULATORY CRITERION

The Eligibility Regulations for the Female Classification (Athlete with Differences of Sexual Development) imposes three criterion which must be satisfied in order for a female runner with DSD to compete in Restricted Events at an international level.[4] The athlete:

• ‘must be recognised at law either as female or as intersex (or equivalent)’;

• ‘must reduce her blood testosterone level to below five (5) nmol/L for a continuous period of at least six months’; and

• ‘must maintain her blood testosterone level below five (5) nmol/L continuously’.[5]

World Athletics insists the regulations are in place solely to ensure ‘fair and meaningful competition’ within the female classification.[6]
Whilst the results of tests that sought to determine Semenya’s biological sex have never been published, it is reported Semenya is 46 XY female with DSD.[7] This means that Semenya has a natural level of blood testosterone which bars her from defending her 800m gold medal at the Tokyo Olympic Games in 2021.

There is general scientific consensus that high levels of endogenous testosterone significantly enhances athletic performance.[8] The question becomes: by how much? Semenya’s record time is only 2% faster than her opponents.[9] It is impossible to isolate individual contributors such as hormone function, performance psychology or training programs and determine which factor is conclusively responsible for, or most contributes to, this figure.[10]

II LEGAL CHALLENGE

A CAS

Semenya relied upon several grounds to support her legal challenge, submitting the regulations are discriminatory on the basis they:

• compel female athletes with certain physiological traits to undertake medical interventions in the absence of scientific support;

• perpetuate the ‘intrusive surveillance and judging of women’s bodies’; and

• stigmatise, cause harm and legitimise discrimination against female athletes.[11]

Despite finding the regulations are discriminatory, CAS held they are ‘a necessary, reasonable and proportionate means of … preserving the integrity of female athletics’.[12]

B Appeal to the Swiss Supreme Court

As a Swiss body, CAS decisions are open to appeal to the Swiss Supreme Court. Appeals generally deal with procedural irregularities or seek to determine whether a ruling is incompatible with Swiss public policy. A violation of Swiss public policy has only been found once in over 30 years.[13]

The Court upheld the validity of the regulations, holding that medical interventions as a precondition to competing in Restricted Events ‘[do] not amount to a violation of Swiss public policy’.[14] According to Semenya’s legal team, this was despite finding that the ‘regulations seriously violate [Semenya’s] physical integrity because the required hormonal drug intervention is not medically indicated, has negative health effects and is not based on the athlete’s free consent’.[15]

Semenya may appeal to the European Court of Human Rights (‘ECHR’).[16] The Swiss Supreme Court, however, opined that any appeal would be unlikely to succeed as the ECHR ‘attaches particular importance to … fair competition’.[17] Any notion of fair competition is discoloured by the injustice of the ruling — intersex conditions are already prone to stigmatisation and marginalisation, and these decisions promote further discrimination.

III IMPLICATIONS

Semenya’s reaction underscores her desire to fight for the human rights of female athletes: 'I am very disappointed by this ruling, but refuse to let World Athletics drug me or stop me from being who I am … I know what is right and will do all I can to protect basic human rights.'[18]

The United National Human Rights Council has expressed its concerns within its human rights framework, stating the regulations violate ‘the right to equality and non-discrimination … and full respect for the dignity, bodily integrity and bodily autonomy of the person’.[19] Denying female athletes the opportunity to compete in Restricted Events (that have been determined arbitrarily) is a flagrant violation of their right to:

• fulfil their natural potential in their preferred event(s); and

• experience non-discrimination on the basis of genetic variations.

This is exacerbated by the potentially harmful consequences for female runners that seek to comply with the regulations, given they must undertake methods of intervention that generally involve some latent risk. Semenya, for instance, revealed that taking oral contraceptives made her injury prone.[20] Biological intervention in the form of hormone suppressing drugs not only compromises the health and natural ability of female athletes, but plainly offends their right to self-realisation. This is a disproportionate and unreasonable mechanism by which World Athletics purportedly seeks to maintain a level playing field.

The World Medical Association, in voicing its support for Semenya, has:

• called for physicians to reject implementing the regulations;

• demanded the regulations are immediately repealed; and

• stated the regulations ‘are contrary to international medical ethics and human rights standards’.[21]

IV CONCLUDING REMARKS

There is no reasonable basis for sporting policies that enforce gender inequality on the basis of genetic anomaly. Elite male and female competitors are born with rare physiological variations that not only distinguish them from the ordinary person, but enable them to become remarkable athletes. The scrutinies posed within in this piece as to the ethical (in)validity of the regulations provide a sound basis for their repeal.

Acknowledgements

[1] Norton Rose Fulbright, ‘Caster Semenya Remains Determined to Fight for Human Rights’ (Press Release, 8 September 2020) <https://www.nortonrosefulbright.com/en-za/news/8ee6fb77/caster-semenya-remains-determined-to-fight-for-human-rights>. See also Sean Ingle, ‘Caster Semenya’s Olympic Hopes Fade as Runner Loses Testosterone Rules Appeal’, The Guardian (online, 9 September 2020) <https://www.theguardian.com/sport/2020/sep/08/caster-semenya-loses-appeal-against-world-athletics-testosterone-rules> (‘(2020)’).
[2] See, eg, George Ramsay and Jill Martin, ‘Caster Semenya Loses Appeal in Swiss Court Over Restriction of Testosterone Levels’, CNN (online, 9 September 2020) <https://edition.cnn.com/2020/09/09/sport/caster-semenya-ruling-athletics-spt-intl/index.html>.
[3] World Athletics, ‘IAAF Introduces New Eligibility Regulations for Female Classification’ (Press Release, 26 April 2018) <https://www.worldathletics.org/news/press-release/eligibility-regulations-for-female-classifica>. See also Norton Rose Fulbright (n 1).
[4] IAAF Athletics, Eligibility Regulations for the Female Classification (Athletes with Differences of Sex Development) (1 May 2019) 3 [2.3].
[5] World Athletics (n 3). See also IAAF Athletics (n 4) 3 [2.3].
[6] IAAF Athletics (n 4) 1 [1.1].
[7] See, eg, Harriet Gibson, ‘Caster Semenya & ASA vs the IAAF — What It Means for Women and Sport’, Squire Patton Boggs (Article, 20 June 2019) < https://www.sports.legal/2019/06/caster-semenya-asa-vs-the-iaaf-what-it-means-for-women-and-sport/>.
[8] See World Athletics (n 3).
[9] Julian Savulescu, ‘Ten Ethical Flaws in the Caster Semenya Decision on Intersex in Sport’, The Conversation (online, 10 May 2019) <https://theconversation.com/ten-ethical-flaws-in-the-caster-semenya-decision-on-intersex-in-sport-116448>.
[10] Ibid.
[11] Jamie Strashin, ‘Caster Semenya Files Legal Challenge Against “Discriminatory” IAAF Rule’, CBC (online, 18 June 2018) <https://www.cbc.ca/sports/olympics/summer/trackandfield/caster-semenya-legal-challenge-iaaf-rule-1.4710183>.
[12] Sean Ingle, ‘Semenya Loses Landmark Legal Case Against IAAF Over Testosterone Levels’, The Guardian (online, 1 May 20219) <https://www.theguardian.com/sport/2019/may/01/caster-semenya-loses-landmark-legal-case-iaaf-athletics>.
[13] Norton Rose Fulbright (n 1).
[14] Ibid.
[15] Ibid.
[16] See Sean Ingle, (2020) (n 1).
[17] Ibid.
[18] Norton Rose Fulbright (n 1).
[19] Human Rights Council, Elimination of Discrimination Against Women and Girls in Sport, UN Doc A/HRC/40/10 (25 February–22 March 2019) 2.
[20] See, eg, Graham Dunbar and Gerald Imray, ‘Semenya Loses at Swiss Supreme Court Over Testosterone Rules’, AP (online, 9 September 2020) <https://apnews.com/bd69bc7ea983d9a1959813402d3d3472>.
[21] Norton Rose Fulbright (n 1).