The Court of Arbitration for Sport (the “CAS”) has ruled against the South African 800-metre Olympic champion, Caster Semeya, in her and her national federation’s , the Athletics South Africa (“ASA”), challenge against the International Association of Athletic Federations (“IAAF”)’s Eligibility Regulations for Female Classification (Athletes with Difference of Sex Development (the “DSD Regulations”).
The DSD Regulations
The DSD Regulations requires athletes with 46 XY chromosomes (as opposed to XX chromosomes who are not subject to any restriction) and who participate in race events from 400m to 1m to reduce their natural testosterone levels below 5 nmol/L and to maintain that reduced level for a continuous period of at least 6-months in order to be eligible to compete in those events. The IAAF contends that such a reduction can be achieved by use of normal oral contraceptives.
Semenya had sought a declaration that the DSD Regulations were invalid and void, arguing they were discriminatory, unnecessary, unreliable and disproportionate.
The IAAF contended that the Regulations did not infringe an athlete’s rights, including the right to equal treatment, but were a justified and proportionate means of ensuring consistent treatment, and preserving fair and meaningful competition within the female classification.
The CAS award
Following a hearing before the CAS on 18-22 February 2018, involving evidence from witnesses and experts, and the subsequent filing of additional submissions and materials, the CAS has by a majority dismissed the request by Semenya/the ASA.
The Panel found that the DSD Regulations were discriminatory. However, by a majority, the Panel also found that such discrimination was a necessary, reasonable and proportionate means of achieving the IAAF’s aim of preserving the integrity of female athletics in the relevant events.
Further, the CAS also expresses serious concerns about the future practical application of the DSD Regulations, with reference made that the Regulations may be challenged on the grounds of proportionality in the future unless constant attention is paid by the IAAF to the fairness of how the Regulations are implemented.
In particular, the Panel expressed concerns about the difficulties for an athlete to remain in compliance with the DSD Regulations; suggested that the IAAF consider deferring the application of the DSD Regulations for the 1500m and 1m events until more evidence is available as to the athletic advantage by a sufficient number of 46 XY athletes in those events; and the side-effects of hormonal treatment might lead in the future to a different conclusion as to the proportionality of the DSD Regulations.
The Panel also encouraged the IAAF to maintain its position of the DSD Regulations being a “living document” and amend them, through the experience of their implementation, to ensure they are capable of being applied proportionately.
The full award remains confidential, but an executive summary will be published shortly.
The award may be appealed to the Swiss Federal Tribunal, albeit on limited grounds, within 30-days.
Link to CAS Media Release: https://www.tas-cas.org/fileadmin/user_upload/Media_Release_Semenya_ASA_IAAF_decision.pdf
The Sports Law Group at Littleton has advised and represented athletes and NGBs in classification, selection and equalities challenges in sport.
This comment was written by the Head of the Sports Law Group, John Mehrzad