*Written by Kunwar Malhotra
The Court of Arbitration for Sport (CAS) recently delivered a much-anticipated ruling involving athlete Caster Semenya, Athletics South Africa, and the International Association of Athletics Federations (IAAF). The ruling upheld the IAAF's eligibility regulation, which restricts female athletes, including Semenya, with "differences of sex development" – commonly understood as higher levels of testosterone – from participating in certain international athletic events. Consequently, Semenya will be required to take medication to reduce her testosterone levels if she wants to continue competing internationally in running events.
This decision falls under the purview of sports law, but it raises pertinent questions about Semenya's human rights. The United Nations Human Rights Council (UNHRC) has recently criticized the "discriminatory regulations" related to testosterone reduction in female athletes. Semenya's case exemplifies the intricate challenges of striking a balance between various interests to maintain fair competition. On one hand, the IAAF argues that their regulations are a "legitimate, necessary, and proportionate" approach to ensure a level playing field in competitive sports. On the other hand, there are concerns about the rights of individuals with hyperandrogenism, a condition where the body produces higher levels of testosterone, who wish to compete against females with what is considered "normal" testosterone levels.
The case of Caster Semenya underscores the complex interplay between sports regulations and human rights, highlighting the ongoing debate surrounding gender and eligibility in sports competitions.[i]
GENDER RIGHTS IN SPORTS: SEMENYA’S CASE
Caster Semenya's case at the European Court of Human Rights centers on her legal battle against the Swiss government, specifically challenging the ruling of its supreme court from three years ago. Her legal team contends that her rights were violated due to discrimination and the lack of an effective remedy in her previous legal challenges.
This case is highly complex, intertwining ethical and scientific arguments, revolving around the issue of fairness in sports. Its outcome could set a crucial precedent for other athletes facing similar challenges. At the heart of Semenya's argument is her assertion that she has always been legally recognized as female and should be allowed to compete in women's sports, regardless of her higher-than-typical female range of testosterone. She views her elevated testosterone as a genetic advantage similar to an athlete's height or a swimmer's long arms.
While World Athletics cannot dispute her legal gender, it argues that Semenya has a medical condition that renders her "biologically male," and her elevated testosterone level grants her an unfair advantage when competing in women's sports. Consequently, World Athletics asserts the need for specific rules to address this issue. The assertion of being "biologically male" by World Athletics has sparked a strong reaction from Semenya, leading to a protracted and contentious battle between her and the sports governing body, spanning over a decade. The outcome of this case will have significant implications for the ongoing debate surrounding fairness, gender identity, and eligibility in sports.[ii]
Caster Semenya, a renowned South African athlete, is a double Olympic gold medalist and triple world champion in the women's 800m race. In 2018, she and Athletics South Africa took their case to the Court of Arbitration for Sport (CAS) to challenge the World Athletics "DSD Regulations." These regulations established mandatory requirements for the eligibility of women with specific DSD (such as "46 XY DSD") and higher levels of natural testosterone to participate in certain female events at international athletics competitions. These athletes, referred to as "Relevant Athletes," were required to reduce their testosterone levels below a specified limit of 5nmol/L, which could be achieved through taking oral contraceptives. However, Semenya had undergone hormone treatment before under previous regulations, and she was unwilling to undergo the same treatment again.
After a 5-day hearing with extensive expert evidence, CAS issued an Award stating that the Regulations were prima facie discriminatory but deemed such discrimination necessary, reasonable, and proportionate to maintain the integrity of female athletics and protect female athletes in specific events. Ms. Semenya then challenged the CAS decision before the Swiss Federal Tribunal, which upheld CAS's assessment of proportionality, and her appeal was subsequently rejected.
Following this, Caster Semenya filed an application against Switzerland before the European Court of Human Rights (ECtHR). Her case involves a complex debate over the fairness of regulations concerning DSD and testosterone levels in female athletes, and its outcome may have significant implications for the future of gender-related eligibility rules in sports.[iii]
GENDER AND HUMAN RIGHTS
Gender and human rights are interconnected concepts that address the biological and social aspects of identity. "Sex" refers to the biological characteristics assigned at birth, while "gender" encompasses the ongoing societal consequences for individuals. Traditionally, gender identity was narrowly defined as either male or female, but it is now understood to exist on a broader spectrum. This includes transgender individuals who experience a mismatch between their gender identity and assigned sex, as well as non-binary individuals who identify outside the male-female binary.
Efforts to legally recognize and protect non-normative gender identities have gained momentum, though debates persist. Human rights and anti-discrimination provisions, both internationally and domestically, seek to safeguard individuals from discrimination based on sex and gender. The Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social and Cultural Rights, among others, address gender equality and non-discrimination. Regional systems, like the European Convention on Human Rights, also protect against gender-based discrimination.
However, ambiguity arises when applying human rights provisions to sports gender rules and their enforcement on sports bodies. Some consider sports as autonomous and beyond the scope of the law, leading to a regulatory gap in safeguarding athletes' gender rights. Resolving this issue and ensuring equal protection for all gender identities in sports remains a challenge.
THE REGULATION OF GENDER IN SPORT
Gender regulation in sports is closely linked to the division of athletes based on sex and gender. Sport uses this division to create fair competition by recognizing the physiological differences between men and women. While sports segregate men and women, it has also celebrated and questioned the physical attributes of female athletes, often associating strength and power with masculinity and advantages in sports. As the understanding of gender identity expands beyond the binary concept, a unique challenge arises - how to determine eligibility for athletes who do not fit strictly into the male or female categories. International governing bodies, like the IOC and World Athletics, have set eligibility criteria to maintain these categories, often framed around perceived physiological advantages and contested scientific understandings of sex and gender. However, there has been limited consideration of human rights in formulating these rules.
Historically, the regulation of sex and gender involved humiliating and discriminatory practices to prevent gender fraud and ensure fairness. Physical examinations and testing for chromosomes were used, but they were inconsistent and unreliable. The focus then shifted to gender verification based on hormone levels, with the belief that elevated testosterone could provide an unfair advantage. In contemporary approaches, intersex and transgender policies face challenges in protecting athletes' gender rights. The current landscape needs evaluation to identify and address these shortcomings. Balancing the essence of sport, fair competition, and inclusivity remains a complex task for sports regulatory bodies.
TRANS ATHLETE POLICIES
The participation of trans athletes in sports has significant implications, and the outcome of the Semenya case influences policies for both intersex and trans athletes. Initially, the International Olympic Committee (IOC) introduced a trans athlete policy in 2004, requiring surgical changes, legal recognition of assigned sex, and hormonal therapy for eligibility post-puberty. However, this policy faced criticism for its medical requirements, transphobic undertones, and exclusionary nature. In 2015, the IOC updated the policy, allowing trans male athletes to compete in the male category without restrictions. For trans female athletes, the policy required a declaration of female gender identity for at least four years, testosterone levels below 10nmol/L for twelve months, and monitoring. The use of testosterone as a marker for performance and the 10nmol/L threshold remained uncertain due to a lack of scientific consensus.
The Semenya case prompted sports bodies like the International Association of Athletics Federations (IAAF) to re-align their trans athlete rules with the 2018 DSD Regulations and introduce the Eligibility Regulations for Transgender Athletes in 2019. Trans female athletes are required to declare their gender identity, maintain testosterone levels below 5nmol/L for participation in the female category, and adhere to ongoing monitoring.
However, the struggle to balance sports' interests with athletes' rights persists, and the rules often focus solely on scientific aspects of performance. There is a need to address human rights provisions in the formulation and application of eligibility rules. Some sports federations, like World Rugby, have initiated consultations to develop sport-specific trans athlete guidelines. The cases of Semenya has exposed regulatory gaps and triggered a transformation in the regulation of sex and gender in sports.[iv]
THE DECISION OF THE ECtHR
The decision of the European Court of Human Rights (ECtHR) in the Caster Semenya case involved several key points:
· Jurisdiction: The first issue was whether the ECtHR had jurisdiction over the case. Article 1 of the Convention requires contracting states to secure Convention rights to everyone within their jurisdiction. While Ms. Semenya was a resident of South Africa, the Swiss government had no direct involvement in making or implementing the DSD Regulations. The regulations were set by World Athletics, based in Monaco, with a global application. However, since Ms. Semenya brought proceedings in the Swiss Federal Tribunal, complaining that the CAS award infringed her Convention rights, the majority of the ECtHR held that it created a sufficient "jurisdictional link" with Switzerland.
· Sporting Arbitration: The majority expressed concern that sporting arbitration, like CAS, is "forced" arbitration, meaning participants in sport have no choice but to arbitrate, as recourse to ordinary courts is precluded by sports governing bodies. They argued that denying access to the ECtHR for cases like this could cut off access to the Court for all involved in professional sport, contrary to the Convention's object and purpose.
· Minority's Views: The minority disagreed with the majority's expansive view of the Court's jurisdiction, arguing that reviewing a CAS award did not necessarily require applying the Convention in full, and this could lead to an unintended global scope for the Convention.
The jurisdiction point was considered significant in the case, with the Swiss government expressing concerns about its potential impact on CAS's location and the broader implications of applying the Convention to the entire sporting world. However, the majority's decision stood, allowing the ECtHR to examine the review of the DSD Regulations by CAS and the Swiss Federal Tribunal to ensure compliance with the Convention.
ECTHR ON DISCRIMINATION
· The ECtHR considered the substance of Ms. Semenya's complaint of discrimination under Article 14 (prohibition of discrimination) and Article 8 (right to respect for private life) of the Convention.
· The Court found that the DSD Regulations had an effect within the scope of Article 8, bringing Article 14 into operation, as it impacted Ms. Semenya's personal identity and private life.
· The majority held that Ms. Semenya was treated less favorably than other female athletes based on her elevated testosterone levels due to her DSD and her "sex" and "sexual characteristics" were the grounds for this discrimination.
· The ECtHR had to assess whether there were sufficient "institutional and procedural guarantees" in the Swiss system for Ms. Semenya to make her Article 14 arguments and receive a properly reasoned decision considering ECtHR case law.
· The Court identified five areas where the guarantees were inadequate: limited recourse to ordinary courts due to World Athletics rules, scientific doubts about the justification of the DSD Regulations, insufficient examination of discrimination arguments and side effects of hormone treatment, inadequate standard of review on Swiss public policy, and failure to consider the differentiation between intersex and transgender athletes.
· The Court found a violation of Article 14 together with Article 8, and also a violation of Article 13 (right to an effective remedy) for the same reasons.
· The complaint of a violation of Article 3 (torture and inhuman or degrading treatment) was found to be manifestly ill-founded by six votes to one.[v]
PROPOSALS FOR REFORM
1. Establish an International Anti-Discrimination in Sport Unit (IADSU)
Create a watchdog and enforcement body for fighting discrimination in sport and ensuring compliance with human rights. The IADSU will comprise independent experts from various fields to ensure a multidisciplinary approach.
2. Conduct an audit of gender sports rules
The IADSU should conduct an audit of gender sports rules to ensure compliance with human rights and develop an anti-discrimination code of conduct. Sports organizations can voluntarily sign up to the code, which may include justifying rules against legal standards, conducting risk assessments, and regularly reviewing rules for accurate interpretation of human differences.
3. Offer education and training
Provide education and training to sports bodies and athletes about inclusion and exclusion and inform them about human rights provisions that protect athletes.
4. Enact an anti-discrimination in sport charter
Supported by governments and international organizations, the charter will establish a legal framework binding sports bodies to protect athletes' rights and adopt measures to eliminate discrimination. The charter may endorse international harmonization of sports rules, policies, and measures to ensure compliance with broader human rights.
5. Establish an Athlete Advice Service (AAS)
Create an athlete ombudsman or AAS to provide athletes with a voice, support, and guidance in navigating legal, media, and political strategies.
6. Consider the creation of a Human Rights Tribunal for Sport
Explore the establishment of a Human Rights Tribunal for Sport to provide a stronger judicial process for dealing with sport and human rights issues. This tribunal would ensure compliance with human rights and accountability for violations.
7. Involve non-profit organizations
Encourage the involvement and support of non-profit organizations that advocate for equality in sport. These organizations can foster connections between athletes and equality organizations, providing athletes with support and expertise in asserting their rights.[vi]
ECTHR'S RULING AND ITS IMPLICATIONS:
1) The international sports dispute resolution system, relying on arbitration agreements, may face challenges due to the ECtHR's approach to "forced" arbitration, requiring state courts to undertake their own assessment of human rights arguments.
2) The scope of the Convention, especially Articles 8, 14, and Article 1 of the First Protocol, allows dissatisfied participants in sporting arbitrations to argue that their case involves human rights issues.
3) Sporting participants may seek to persuade national courts, such as the Commercial Court, to exercise a broader power of review under the Human Rights Act 1998, potentially impacting the arbitration process.
4) The distinction drawn by the ECtHR between commercial arbitration and "forced" sporting arbitration may be subject to scrutiny, raising questions about practical alternatives for small players in specific industries.
5) There is a need for further examination of the implications of the ECtHR's approach on commercial arbitration and the extent of review that national courts can undertake.
6) The requirement for state courts to conduct their own assessment of human rights arguments may result in greater scrutiny of arbitral awards and sports governing bodies' decisions.
7) The Grand Chamber of the ECtHR should hold an oral hearing to address the significant issues raised in the case and provide clarity on the implications for the sports dispute resolution system.
8) Sports organizations and governing bodies may face increased pressure to ensure compliance with human rights and non-discrimination standards to avoid potential challenges before national courts or the ECtHR.
9) The development of a more robust and independent human rights tribunal for sport may be necessary to address the regulatory gaps in the protection of athletes' rights.
10) The impact of these wider implications may require reforms in sports governing bodies, arbitration rules, and national legal systems to strike a balance between the interests of sports participants and the protection of human rights.[vii]
The Court's approach in the Semenya case raises significant concerns and leaves room for criticism. While sympathizing with Ms Semenya's plight, the majority's analytical approach appears problematic. It claims to assess the adequacy of the Federal Tribunal's justification rather than conducting its own necessity and proportionality assessment. However, in doing so, the majority seemingly delves into the merits of the balancing exercise. Moreover, the Court's insistence on an explicit assessment of justification under Article 14 seems unnecessary, as CAS had already undertaken a detailed examination of necessity and proportionality. The majority's approach also treats the case as one involving the presumption of illegitimacy, demanding exceptionally strict justification for rules defining the boundaries of protected female categories in competitive sports. This approach may tilt the scales in favor of more inclusive boundaries, potentially affecting the rights of other athletes.
The Court's treatment of CAS's concerns regarding the Regulations' operation raises questions, as those concerns could be seen as evidence of careful examination. In conclusion, the Court's approach in the Semenya case could benefit from further clarity and refinement to ensure a fair and balanced evaluation of human rights and sporting regulations.
*The author is a lawyer from India
(The image used here is for representative purposes only)
[i] https://theconversation.com/its-not-clear-where-human-rights-fit-in-the-legal-ruling-on-athlete-caster-semenya-116417 [ii] https://abcnews.go.com/Sports/wireStory/ruling-expected-tuesday-runner-caster-semenyas-human-rights-101008814 [iii] https://www.sportslawbulletin.org/caster-semenya-in-strasbourg-applying-the-echr-to-the-entire-sporting-world/ [iv] https://link.springer.com/article/10.1007/s40318-021-00182-2 [v] https://www.sportslawbulletin.org/caster-semenya-in-strasbourg-applying-the-echr-to-the-entire-sporting-world/ [vi] https://link.springer.com/article/10.1007/s40318-021-00182-2 [vii] https://www.sportslawbulletin.org/caster-semenya-in-strasbourg-applying-the-echr-to-the-entire-sporting-world/