Sport: Can we protect natal-female sport?

Caster Semenya’s latest challenge against her treatment in athletics has nearly reached its final lap. The latest decision, on appeal to the European Court of Human Rights from the Swiss courts, has the potential to cause widespread reassessment of how sports are organised.

Under World Athletics regulations concerning differences of sex development (“DSD Regulations”), female athletes cannot compete (in certain elite competitions) where their testosterone levels are elevated above a set level. This rule would thus require the affected individual to take hormone suppression medication or treatment and reduce their testosterone to the permitted level.

The DSD Regulations essentially seek to provide a contribution to the protection and regulation of natal-female-only sport, in eight events in elite athletics. The regulations, on being brought in in 2019, were challenged by Semenya in the Court of Arbitration for Sport, unsuccessfully. Semenya rejected the notion that she should consume oral contraceptives which would bring her testosterone into the accepted level. The CAS declared the regulations to be discriminatory in effect, but necessary.

An appeal to the Swiss Federal Tribunal then failed, as the decision was declared consistent with Swiss public policy (which is the avenue of challenge to a CAS decision). Noting that the DSD Regulations did impact on Semenya, the impact was justified. However, in the latest lap of litigation and by a majority of four to three, the ECtHR favoured Semenya. In the majority view, the Swiss Federal Tribunal had not sufficiently scrutinised the decision of the private, non-state, Court of Arbitration for Sport. It had exercised limited supervision of the decision-making, by not requiring better reasoning for the intrusion to the rights impacted by the regulations. The decision-making was insufficient to protect people within its jurisdiction from discrimination.

Key considerations

To begin with, the curiosity of the ECtHR ruling over a Swiss court in relation to a governing body (World Athletics) based in Monaco, over Semenya, a South African citizen and resident, was overcome, with the arbitration to CAS and submission to CAS’s decision-making in Switzerland. The ECtHR was thus a permissible avenue of challenge. This was the subject of significant argument, including as to whether the effect of the judgment would result in the CAS relocating out of Switzerland to a country outwith the reach of the Council of Europe and so the ECtHR.

In the substance of the debate, key was whether, accepting that Semenya’s sexual characteristics related to her private life and that the DSD Regulations impacted on both her sexual characteristics and (in the majority view) her sex, in a detrimental way, the Swiss Federal Tribunal had applied the positive obligation on Switzerland to protect against discriminatory treatment arising out of the application of the regulations. Case law (IM v Switzerland, App 23887/16) holds that where inadequate reasons are given, an interference with article 8 rights will be unjustified. The ECtHR thus looked at whether there had been sufficient “institutional and procedural guarantees” in the Swiss system.

The court opined that there would be the need for strong justification, and found areas where the protection offered was inadequate, including the absence of express reference to human rights in the CAS decision; that the Swiss public policy test did not accord with the positive obligations imposed under ECHR; and that the Swiss Federal Tribunal ought to have considered whether the DSD Regulations treated intersex athletes in the same way as transgender athletes, when there were arguably good reasons not to do so. In conclusion, the court felt that there were not sufficient institutional and procedural protections afforded to Semenya to have her complaint of discrimination determined. Violations of articles 14 (not to be discriminated against), 8 (private life) and 13 (effective remedy) were thus pronounced.

Implications

An appeal to the Grand Chamber may well be pursued, particularly given the narrow majority and concern that this will cascade ECHR across sports regulation globally, presenting an unreasonable burden on sports regulation, complaints and disputes mechanisms. One key message to sports is that at a time when policy advocates and rulemakers are under an increasing obligation in sport to have regard to and balance the preservation of safety, fairness and single sex sports, in particular natal-female sport, while opening avenues for inclusivity and participation, very careful and documented decisions are required, with detailed reasoning.