The Semenya case
On April 30, 2019, the Court of Arbitration for Sports (hereinafter: CAS) delivered its award in the case brought by athlete Caster Semenya, together with Athletics South Africa (hereinafter: ASA), against the International Association of Athletics Federations (hereinafter: IAAF). The subject of the dispute was the implementation of the new IAAF regulations regarding the participation of hyperandrogenic athletes in women’s competitions.
It is not the first time that the CAS has ruled on this issue. Already in 2015, the CAS considered a similar IAAF regulation to be discriminatory.
In 2018, IAAF drew up completely new regulations. The ‘Differences of Sex Development Regulations’ (hereinafter: DSD regulations) mean that female hyperandrogenic athletes with a testosterone level above 5.0 nmol/L are not allowed to participate in competitions. Only the so-called ‘restricted events’ are targeted. These are eight athletics disciplines in which the IAAF claims that hyperandrogenic athletes have too great an advantage over non-hyperandrogenic athletes. This includes the 400, 800 and 1500 meters. Athletes with too high a testosterone level have the choice of 1) through treatment to reduce their testosterone level, 2) only participate in national competitions at a lower level or 3) submit an application to participate in the men’s competition.
Caster Semenya is an athlete with a natural testosterone level that is above the limit of 5.0 nmol/l. Moreover, she is active in the targeted disciplines. However, she experiences the DSD regulations as discriminatory and challenged them with the CAS.
Argumentation parties
Caster Semenya argues that there is discrimination based on gender because the aforementioned rules only apply to female athletes. Moreover, only women with specific physiological characteristics are targeted. The rules would not be based on scientific grounds, would not be necessary to guarantee fair competition and would ultimately cause unjustified and irreparable harm to the affected athletes.
IAAF, on the other hand, believes that the DSD regulations are necessary to guarantee fair competition and to create a level playing field.
CAS decision
The CAS initially establishes that the DSD regulations are indeed discriminatory in nature. On the one hand, female athletes experience limitations that do not apply to male athletes, resulting in discrimination based on gender. On the other hand, restrictions are imposed on women with certain biological characteristics, as opposed to women who do not possess these characteristics.
However, different treatment can be justified if it is necessary and reasonable to achieve a specific objective and the means used are also proportionate to this objective.
The CAS believes that the DSD regulations are necessary to guarantee a fair competition.
According to the CAS, the classification of an athlete in the men’s or women’s competition should be based on the concrete biological characteristics of the athlete in question. This prevents women with exceptional physiological characteristics, which provide a significant competitive advantage, from participating in competitions where the competition does not have these advantages. In this way it is hoped that a fair competition will be guaranteed.
Following this reasoning, women with an exceptionally high testosterone level cannot be allowed to participate in women’s competitions, in which the vast majority of participants have a normal testosterone level for women. The CAS is of the opinion that hyperandrogenic athletes would enjoy a significant and decisive advantage, especially in the disciplines targeted by the DSD regulations.
The CAS then states that the DSD regulations are reasonable and proportionate. After all, women with exceptionally high testosterone levels are not required to undergo surgical procedures. Treatment with orally administered medication is sufficient.
The discriminatory nature of the DSD regulations is therefore justified according to the CAS.
ASA and Caster Semenya have 30 days from notification of the decision to appeal to the Swiss Federal Court. ASA has already announced that it will do this.
The CAS’s decision leads to intense discussions in sports circles.
What the Semenya case decided, and what it left open
The dispute turned on eligibility rather than on doping. The question was whether a federation may attach a condition to participation in a female category that rests on a physiological characteristic, and whether an athlete can be required to lower a naturally occurring hormone level in order to compete. The panel accepted that such a rule can be justified where it pursues fair competition and is applied proportionately, while recognising at the same time that the rule discriminates.
What the case did not settle is how that proportionality is measured in an individual file. The evidence about the actual effect of a hormone level on performance stays contested, the rules differ between disciplines, and the assessment is made by sporting bodies long before it reaches a court. For an athlete this means the file has to be built on the medical evidence from the first day, because the later stages review the record rather than reopen it.
What the Semenya case decided, and what it did not
The award turned on a narrow question: whether eligibility rules that require certain athletes to lower their testosterone before competing in particular events are a lawful way of pursuing fair competition in the female category. The panel accepted that the rules were discriminatory, and then held that on the evidence before it the discrimination was a necessary and proportionate means of reaching a legitimate aim. Those two steps are what every later discussion of the case returns to.
What the award did not do is settle the science or the ethics. It decided a dispute between named parties on a defined record, under the regulations that governed that competition at that time. A different record, or a different set of regulations, can produce a different answer, which is exactly why the litigation continued in other forums afterwards.
The practical lesson for an athlete
A challenge to an eligibility rule is won or lost on expert evidence assembled long before the hearing, and the body that hears it is fixed by the regulations you accepted when you entered the competition. Neither of those can be improvised once a decision has landed. We advise athletes on selection disputes and access to competition and on arbitration and litigation.