On 8 September, Switzerland’s Federal Supreme Court dismissed two-time Olympic gold medallist Caster Semenya’s appeal. The dismissal upheld a ruling that was announced last year by the Court of Arbitration for Sport (CAS), that came into effect from 8 May 2019, stipulating that it was mandatory for all athletes with a difference in sex development (DSD) to undertake the necessary procedures to maintain a testosterone level below 5nmol/L continuously for the entirety of their athletic career in order to be allowed to compete in international athletic events.
In response to the decision made by the Swiss Federal Supreme Court, the University of Pretoria’s Centre for Human Rights has formulated a statement that unpacks the legal nuances between the erred judgements of the aforementioned judiciaries. The statement articulates that the regulations that were conceived inexplicably give the impression that they were set out to target Semenya, due to their specificity. The regulations apply to a small bracket of athletes who participate in the 400m, 400m hurdles, 800m, 1500m and mile events, and fall into the category of ’46, XY DSD’ (a form of sex development in which an individual has one X and one Y chromosome in each cell, but has external female genitalia). The high degree of specificity that the regulations exhibit coincides not only with Caster Semenya’s status, but are inclusive of other renowned athletes such as Burundi’s Francine Niyonsaba, and Kenya’s Margaret Wambui, who were both the silver and bronze medallists at the 2016 Rio Olympics respectively. As the reigning Olympic Champion in the 800m event, the statement gives the impression that she was targeted.
Furthermore, UP’s Centre for Human Rights notes that the Supreme Court exhibited bias in amplifying fair play as an integral part of the reason for the decision, discounting other core principles such Semenya’s right to human dignity, stating that “while the necessary drug-related lowering of the testosterone level represented a considerable interference with physical integrity, this was necessary and did not infringe on Caster’s right to human dignity.
“The statement articulates that the regulations that were conceived inexplicably give the impression that they were set out to target Semenya, due to their specificity.“
The statement articulates a series of legal options available to Semenya to challenge the decision made by the CAS. One of these options resides in the form of taking the said case to the European Court of Human Rights, which is governed by the European Convention that underscores the protection of one’s “freedom from non-discrimination and the right to privacy”. This motivates a likelihood that the European Court can undertake a strong position against gender stereotyping. In spite of the likelihood, the European Court can choose to invoke a principle known as “margin of appreciation” which will give it the power to defer back to the original judgments formulated by the national institutions such as the Swiss Supreme Court, and substantiates this through the notion that there is no “European consensus on the substantive issue under consideration”.
The Centre also articulates a Quasi-judicial (when a non-judicial body interprets the law) option, citing that attempts can be made “[…]to secure a finding by a United Nations (UN) human rights treaty body in respect of individual communication, making the case that Switzerland has violated the relevant UN human rights treaty”. However, the statement notes limitations in this route as well, that include but are not limited to, the lengthy and non-binding nature of the process.
The South African government has the option of taking the issue to the UN Human Rights Council, calling on Resolution 40/5 titled “Elimination of discrimination against women and girls in Sport”, that was adopted in March 2019 which states to “ensure that sporting associations and bodies implement policies and practices in accordance with international human rights norms and standards, and refrain from developing and enforcing policies and practices that force, coerce or otherwise pressure women and girl athletes into undergoing unnecessary, humiliating and harmful medical procedures in order to participate in women’s events in competitive sports”.
“This motivates a likelihood that the European Court can undertake a strong position against gender stereotyping.“
Despite the potential for success and failure in pursuing the aforementioned legal options, as of date, Semenya will not be allowed to compete in the Tokyo 2021 Olympics to defend her 800m title, unless she adheres to the stipulated drug treatments. UP’s Centre for Human Rights notes through its statement that “neither the CAS nor the Swiss Supreme Court has made out a justification for subjecting hyper-androgenic female athletes to unwanted and non-consensual hormonal treatment”, asserting that “the infringement on their right to human right to dignity, bodily autonomy and physical integrity is not necessitated by the argument for competitiveness”. In a statement issued by Semenya’s legal team, Dorothee Schramm, the lawyer responsible for leading Semenya’s appeal, asserted that “this decision is a call to action – as a society, we cannot allow a sports federation to override the most fundamental of human rights”.
World Athletics has welcomed the decision, mentioning in a statement that, “throughout this long battle, World Athletics has always maintained that its regulations are lawful and legitimate and that they represent fair, necessary and proportionate means of ensuring the rights of all female athletes to participate on fair and equal terms. It has rejected the suggestion that they infringe any athlete’s human rights, including the right to dignity and the right to bodily integrity.”