Run Free, for once and for all!” - Human Rights Thoughts on Caster Semenya’s Fight against Discrimination in Sports“-Ali Masoudi

Ali Masoudi Lamraski - Ph.D. in International Law, Shahid Beheshti University, Tehran, Iran

2021/05/25

On 25 February 2021, Mokgadi Caster Semenya, the South African middle-distance runner, Olympic, and world gold medalist, announced that she is filing her case against Switzerland before the European Court of Human Rights (ECtHR) to “take a stand and fight for dignity, equality and the human rights of women in sport” and to make sure all women athletes are “allowed to run free, for once and for all.”

As her legal support team has also stated, her application continues her rejected challenges before the Swiss-based Court of Arbitration for Sport (CAS) and the Swiss Federal Tribunal (SFT) to the Eligibility Regulations for the Female Classification - Athletes with Differences of Sex Development (DSD Regulations) implemented by Monaco-based World Athletics (WA), the former International Association of Athletics Federation (IAAF) in 2018, which prohibit women with differences of sex development (DSD), i.e., intersex women athletes with naturally higher levels of testosterone, from participating in international competitions.

The present note does not aim to delve into various technical and/or formalistic legal aspects of Semenya’s several lawsuits as this has been dealt with by different authors. It instead intends to put questions to broader issues concerning WA, the CAS, and the SFT’s approach towards the human rights of athletes; rights such as access to justice, equality and prohibition of racial and gender discrimination, rights to full respect for the dignity, bodily integrity, self-determination, livelihood, privacy, and so forth. Part of the issues discussed here, especially regarding the CAS, has been further elaborated by the author in an article in Farsi here.

1. DSD Regulations: Where human rights violation, gender, and racial discrimination meet

The DSD Regulations require women athletes with naturally produced levels of testosterone higher than five nmol/L (nanomoles per liter), who are sensitive to testosterone and who have XY chromosomes (§§ 2.1-2.2) to undergo physical examinations followed by medical procedures to medically reduce their high testosterone levels if they wish to compete internationally in women’s events between 400m and one mile. This is the exact range that applies to Semenya’s specialization. Based on its criticized in-house researches, WA believes that these women athletes have a performance advantage in athletics and deems the Regulations as vital to “ensure fair and meaningful competition in the sport of athletics” (§ 1). According to WA, the principles of equality and non-discrimination, enshrined in its Constitution (§ 4), mandates the provision of a “female-only” competition category, and as a result, different treatment between women with DSD and women without DSD. These treatments, the scientific bases and validity of which have been seriously disputed by many independent researchers, scholars, UN experts, human rights, and medical organizations, are not capped at hormone therapies that reduce athletes’ testosterone levels; they rather include “unnecessary” gonadectomies and partial clitoridectomies, as shown in different studies.

The Regulations have been considered as part of a history of “sex tests” carried out by international sports federations since at least the 1930s (not, as is commonly suggested, 1960s). These tests are rooted in patriarchal binary gender stereotypes that considers testosterone a ‘male-only’ possession and deems strong females as ‘not being woman enough’, or differences of sex development as ‘disorder’. They have instrumentalization of women’s bodies in violation of their human dignity at their very heart and that is why they have been subject to much human-rights-centered controversy ever since. As pointed out by the EU Commissioner for Human Rights: “Sport is the field par excellence in which discrimination against intersex people has been made most visible.”

The WA and its DSD Regulations are not an exception either. In fact, the international human rights community, together with athletes, has taken a strong stance against the Regulations. The mandate holders of the UN Special Procedures on health, torture, and discrimination against women, for instance, the UN Human Rights Council itself in several documents have expressed their grave concerns as to the contravention and incompatibility of the Regulations with international human rights norms and standards, including “the right to equality and non-discrimination, the right to the highest attainable standard of physical and mental health, the right to sexual and reproductive health, the right to work and to the enjoyment of just and favorable condition of work, the right to privacy, the right to freedom from torture, and other cruel, inhuman or degrading treatment and harmful practices or punishments, and the right to full respect for the dignity, bodily integrity and bodily autonomy of the person.” Other human rights and women rights organizations have taken a more assertive stance and firmly condemned the DSD Regulations, the “invasive testing”, and the “medically unnecessary” treatments they require, described by athletes, such as Semenya herself as “harmful, experimental, humiliating, demeaning, and intrusive” on multiple occasions.

Much has been said regarding the adverse side effects and lifelong physical and mental negative impacts of exposing women with DSD to these invasive testing and so-called ‘treatments’ which gave rise to the violation of the above-mentioned human rights. Diuretic effects causing excessive thirst, urination and electrolyte imbalances, disruption of carbohydrate metabolism, headaches, liver toxicity, chronic weakness, irreversible harms such as compromising bone and muscle strength are just few examples.

An essential controversial issue related to DSD Regulations and the treatments emanate therefrom is their non-consensual nature and the problem of athletes’ full and free consent to undergo these treatments. A brief look at the structure of sports governance in the world and the dominant position of Sport Governing Bodies (SGBs) will reveal that consent in sport is not really consent where there exist other genuine and real options for the athletes. Athletes do not have “free rein” in their dealings with the SGBs and “in order to continue their sport professionally”, they have “no other choice than to submit to SGBs’ desires and regulations”, as held by the SFT in its Cañas decision (§ 4.3.2.2) and reiterated by the ECtHR in well-renowned Pechstein judgment (§§ 109-115). Similarly, in order to be compliant with DSD Regulations and to be able to compete at WA’s events, women athletes with naturally higher levels of testosterone have to endure these treatments.

On this topic, some may argue, as did the IAAF itself before the CAS in Semenya’s case (§ 308), that according to DSD Regulations (§ 2.5) “no athlete will be compelled to undergo any assessment or treatment under the Regulations, and that is the athlete’s responsibility to decide whether to proceed with any such treatment/assessment”. Nonetheless, besides what has been said regarding athlete’s freedom of action in their dealings with SGBs, this argument does not appear to be narrating the whole story as well. According to §2.6 of the Regulations, if an athlete refuses these treatments, she will be eligible to compete only at non-international competitions, international competitions to which DSD Regulations do not apply, in the male classification, or in a hypothetical, not-yet-created intersex or similar classification. In consideration of the foregoing, female athletes with DSD have no other genuine and real option  than to submit to the Regulations and the treatments.

The other significant problematic matter regarding the DSD Regulations, i.e., its discriminatory nature, is threefold. Firstly, they do not apply to male athletes. Instead, as critics of the existing rules have repeatedly pointed out, the anatomy, physiology, and outstanding abilities of the fastest male runners and swimmers, which lie outside the normal range, are praised and celebrated. This is best exemplified by Usain Bolt’s leg muscles, Ian Thorpe’s feet, and Michael Phelps’ wingspan and naturally low lactic acid production. This is while by applying the DSD Regulations, the women athletes who are born female, have legal and social identities of a woman, are being actually penalized for their innate biological traits, over which they have no control. They have not cheated or been found to be taking prohibited substances enhancing their performance, yet are being stigmatized and penalized since the Regulations imply wrong-doing and come with a penalty. Secondly, as already pointed out,  the Regulations are discriminatory against women athletes with DSD in the female athletes category itself. Last but not least, studies conducted based on the DSD Regulations documents, scientific publications, media coverage, in-depth interviews, and sports officials’ public presentations show this “supposedly neutral and scientific regulation” targets women of color from the Global South. This is best exemplified and evidenced by the experience of four 18-21 female athletes, all from ‘rural areas of the Global South’, the ‘Indian’ sprinter Dutee Chand in 2014, which is well documented by Lenskyj (pp. 123-126), and finally ‘South African’ Caster Semenya herself.

2. CAS: Appropriate forum to hear human rights?

Caster Semenya’s challenge to the DSD Regulations was heard by the Ordinary Arbitration Chamber of the CAS, the ‘exclusive’ and compulsory jurisdiction of which is recognized by §5.2 of the Regulations. Having previously suspended by way of an interim arbitral award the IAAF’s similar Hyperandrogenism Rule for lack of scientific basis in Chand’s case, the CAS panel in Semenya took a utilitarian approach and found by majority that the DSD Regulations while being “discriminatory” are “necessary, reasonable and proportionate means of achieving” the IAAF’s aim of preserving the integrity of female athletics (§§ 625-626). Instead of addressing the aforesaid human rights considerations regarding the Regulations, the panel has focused mainly on the physical effects of testosterone on athletes’ performance and, in general, the scientific bases of the Regulations to decide if they are discriminatory. In this regard, to measure the compatibility by the DSD Regulations of human rights standards, the CAS applied, in line with Article R45 of its Code, the provisions of the IAAF Constitution and the Olympic Charter (§§ 421-424) and found it “not necessary” to “set out the detailed principles” of “international human rights laws” and “documents” (§ 544). In the eyes of the arbitral panel, the DSD Regulations “reflect a rational resolution of conflicting human rights”. It is evident why the CAS decision has led to an outcry by the international human rights community, as mentioned already, as well as many professionals from the medical community. The World Medical Association (WMA), for instance, advised all doctors around the world not to participate in the implementation of the DSD Regulations, as it is deemed unethical.

That being said, one may ask if CAS, which is a dispute settlement model similar to the one for investment law rather than public interest issues, is the appropriate forum to address such inherently human rights issues. The author believes that it is not and has discussed this issue in Farsi here partially, and in a forthcoming book in detail.

First and foremost, CAS itself is of the firm belief that human rights standards, at the very best, will not be applied directly by its panels. This is unambiguously reflected in a recently published document prepared by CAS, overviewing human rights in sport “from a CAS perspective” (see for e.g pp. 9, 10, 11, and 12). This is despite the facts that CAS does have the power, authority, and functions similar to the courts of law in domestic legal systems, exemplified by compulsory and exclusive jurisdiction, it has a ‘de novo’ power of hearing reflected in Article R57 of its Code, and as expressly held by the ECtHR in Pechstein judgment (§§ 109-115)  has to fully and directly apply at least the human rights standards reflected in Article 6§1 of the European Convention on Human Rights (ECHR) in its proceedings. Secondly, due to their arbitral nature and functions, CAS panels are mostly limited to the will of the parties, including with regards to the applicable law, and as was the case in Semenya’s proceedings (§§ 423-424), they are not free to apply the primary sources of Human Rights Law, even if they intend to do so. Thirdly, CAS arbitrators have hardly any experience with human rights. According to the statistics published by CAS, only 18 arbitrators out of its closed list of almost 400 arbitrators have expertise in human rights. The issue has also been addressed by the UN Special Representative for Business and Human Rights, who believes the CAS arbitrators “generally lack human rights expertise”. Lastly, as discussed by different authors, the close link between SGBs, the ICAS, and CAS works in the athletes’ disadvantage in CAS procedures and the CAS’ institutional set-up “favors the selection of arbitrators whose approach to sports regulations is similar to the approach by international sports governance bodies”. To this, one shall add the truly insufficient judicial control applied by the SFT over the CAS from a human rights perspective, which will be briefly discussed below.

3. SFT: Not even adequate!

According to Article 191 of the Swiss Federal Act on Private International Law (PILA), Article 389 of the Swiss Civil Procedure Code (CPC), and as held by the SFT itself in Semenya judgment (§ 5.2.3), SFT is the sole authority to hear challenges (and not as commonly thought ‘appeals’) against the arbitral awards issued in Switzerland, including those of the CAS, exclusively based on the quintuple grounds set out in Article 190 of the PILA. Amongst these grounds, the only one which may be interpreted as protecting substantive human rights is the incompatibility of the arbitral awards with Swiss public policy. It must be borne in mind that even in such scenarios, as unequivocally held by the SFT in various cases, violations of the human rights standards enshrined in the ECHR cannot be invoked as a ground for challenging the arbitral awards, even if one can categorize them within the grounds enumerated in Article 191 of the PILA (see §§ 4.2.1, 7.2.2, and 3.1.2 of the cited cases respectively).

Semenya challenged the CAS award for violating the Swiss public policy due to a violation of the principle of non-discrimination, human dignity, and her personality rights, including the right to bodily integrity, identity, private life, and economic freedom. Similar to the approach taken by the CAS, the SFT took a consequentialist utilitarian approach as well and added to the ruling of the CAS that “it is not sufficient that the reasoning of an arbitral tribunal offends the public order, [rather], it is the ‘result’ the award which must be incompatible with public order”. In the eyes of the SFT, “it is not enough that the evidence has been poorly assessed” by the arbitral tribunal, “that a finding of fact is manifestly false” or even “that a rule of law has been clearly violated”. In this vein, it stressed that an arbitral award violates public order only when it is “manifestly untenable, seriously disregards a clear and unquestionable legal norm or principle, or shockingly offends the feeling of justice and equity” (§ 9.1). As a result, the SFT rejected Semenya’s challenge.

The finding of the SFT in this case is of no surprise. It has been recurringly held in SFT’s case law. As some pointed out, it was not “unexpected” either, particularly in light of the very narrowly interpreted notion of public policy by the SFT. Be that as it may, it seems that SFT is not even an adequate forum to hear human rights violations. The true nature of the so-called appeals before the SFT and the strictly limited grounds for challenging the arbitral awards, in which human rights have no meaningful place, if any at all, and SFT’s approach towards human rights violations have been briefly discussed. Next is the favorable approach it has towards the arbitration tribunals located in Switzerland, particularly the CAS, which the SFT itself considered to be “benevolent” in the Cañas case (§ 4.3.2.3). Research conducted by the author shows during almost four decades of the life of CAS and more than at least 3,500 awards rendered, only 12 CAS awards were successfully challenged before the SFT, amongst which only one had the violation of a human right standard, namely right to personal freedom, as the ground for annulment. That is why some call Switzerland an “arbitration-friendly” nation or a “legal haven for sports arbitration”.

4. ECtHR: What to expect

Although the actions of the SFT, as an organ of the Swiss government, in upholding arbitral awards contrary to the ECHR may undoubtedly engage the latter’s responsibility under the Convention, the ECtHR’s judgments in Pechstein (§§ 62-67), and more recently in Platini (§§ 36-38) cases have confirmed this with regards to challenging the CAS awards before the SFT as well.

As has been suggested, when it comes time for the ECtHR to consider the merits of Semenya’s application, it will have to decide whether the concept of “necessary discrimination” and its “scientific basis”, as upheld by the SFT, can be sustained under the ECHR. From a technical point of view, it has the authority to request additional evidence, rely on evidence from external actors, or even engage in fact-finding, if the evidence relied on by the parties is contested.

Nonetheless, what matters the most in the author’s opinion, that it is a genuinely good opportunity for the ECtHR to clarify the scope of States’ obligation reflected in Article 1 of the ECHR to “respect” and “secure to everyone within their jurisdiction the rights and freedoms” enshrined in the Convention. Switzerland, as pointed out by the SFT in the Semenya judgment (§ 9.4), is of the opinion that human rights standards, exemplified by the principle of non-discrimination, are addressed to States only and do not apply in relations between private parties. This is in clear contradiction with the twofold nature of States’ obligations regarding human rights. That is their “negative” obligation to refrain from violating these rights, on one hand; and on the other, their “positive” obligation to guarantee these rights by adopting the legislative, judicial, administrative, educative, and other appropriate measures to fulfill their obligations. This has been elaborated by the UN Human Rights Committee and the ECtHR itself in numerous cases, including in the context of the principle of non-discrimination. As a result, it is a well-timed opportunity for the ECtHR to clarify that even though the obligations enshrined in human rights instruments, such as the ECHR, are primarily addressed to States, this does not negate their applicability amongst private parties. More importantly, it is time for the ECtHR to hold that Switzerland is under a concrete obligation to secure everyone within its jurisdiction the human rights and freedoms, including those who challenge the CAS decisions before the SFT, and not let SFT validate arbitral awards rendered through total disregard to human rights standards.

Lastly, it is a superb opportunity to measure in general the SGBs’, and in particular, the CAS’ approach towards human rights of the athletes as the ‘Supreme Court of Sports’ which is on average handling 600 cases each year. The decision of the ECtHR will undoubtedly be poured over and commented on by sports and human rights lawyers for some time, far beyond WA, Switzerland, and sport.