The Court of Arbitration for Sport ("CAS") has today issued a decision dismissing the requests for arbitration made by: (i) the South African athlete Caster Semenya; and (ii) her sport's national governing body, Athletics South Africa ("ASA"). In doing so, the panel found that the "IAAF Eligibility Regulations for Female Classification (Athletes with Differences of Sex Development" ("DSD Regulations") were valid, and were necessary, reasonable and proportionate to achieve the IAAF's aims of preserving the integrity of female athletics in certain Restricted Events. 

Background

The DSD Regulations, first published in April 2018, set out a number of criteria that athletes with "differences of sex development" (defined as "a congenital condition that causes atypical development of their chromosomal, gonadal, and/or anatomic sex") must meet in order to be eligible to compete in the female category of track events between 400m and a mile (the "Restricted Events") in an international competition (or to set a world record in such an event). 

Relevant Athletes (i.e. those who as a result of their DSD, produce significantly higher levels of testosterone than the average female and have sufficient androgen sensitivity to such levels of testosterone to have a material androgenising effect) must:

(i) be recognised at law (for example under their birth certificate or passport) as female or intersex (or equivalent);

(ii) reduce their testosterone levels to below the specified level for a continuous period of six months before they can compete (e.g. through hormonal contraceptives); and

(iii) maintain their testosterone levels below such level for so long as they wish to remain eligible to compete (whether in or out of competition).

Relevant Athletes who do not meet the above conditions (or who fail or refuse to submit to testing in relation to them) remain eligible to compete: (i) in the female category (a) in international competitions in events other than the Restricted Events; or (b) in Restricted Events outside of international competitions; (ii) in male or intersex classifications for all events including the Restricted Events.

 The DSD Regulations replaced the previous "Regulations Governing Eligibility of Females with Hyperandrogenism to Compete in Women's Competition" (the "Hyperandrogenism Regulations"), which were themselves challenged before CAS by Indian 100m sprinter Dutee Chand in 2015 after she was prevented from attending the Glasgow 2014 Commonwealth Games on the basis of her increased testosterone levels. Those proceedings were terminated by the IAAF's subsequent withdrawal of the Hyperandrogenism Regulations, and the replacement of those Regulations with the DSD Regulations.

The DSD Regulations were due to come into effect on 1 November 2018, but were suspended pending the outcome of the current proceedings.

The Request for Arbitration

Semenya and ASA both filed requests for arbitration in June 2018, requesting that the DSD Regulations be declared invalid and void with immediate effect on the basis that they were discriminatory, necessary, unreliable and disproportionate. 

The Decision

The CAS Panel found that the DSD Regulations were discriminatory in nature. However, the majority of the Panel found that such discrimination was necessary, reasonable and proportionate to achieve IAAF's stated aim (i.e. to preserve the integrity of female athletics in the Restricted Events). 

The Panel also noted that the DSD Regulations could become disproportionate, depending on how they were applied in practice by the IAAF. In particular, the Panel referred to the following issues, which might have further impact on the proportionality of the DRD Regulations:

(a) the issue of strict liability, and potential consequences of unintentional non-compliance;

(b) the lack of concrete evidence of actual (as opposed to theoretical) significant athletic advantage by Relevant Athletes in the 1500m and 1 mile events. The Panel therefore suggested that the IAAF consider deferring the application of the DSD Regulations to those events until more evidence is available; and

(c) the side effects of hormonal treatments experienced by individual athletes, which could lead to a practical impossibility of compliance. 

Going forwards

The DSD Regulations now come into effect as from 8 May 2019. 

Semenya and ASA have 30 days in which to appeal the decision to the Swiss Federal Tribunal.

Comment

The issue of gender in sport is clearly a very sensitive and current issue. There are strongly held and passionate views on both sides of the debate. This CAS ruling is therefore unlikely to be the last word in the story. The IAAF has described the DRD Regulations as a "living document". It will be interesting to see how the DSD Regulations are applied in practice, and whether this raises any further legal challenges on the grounds of proportionality.