The Swiss Federal Tribunal has dismissed appeals made by Caster Semenya and Athletics South Africa (“ASA”) against the decision of the Court of Arbitration for Sport (“CAS”) to uphold the conditions on participation of certain female athletes set out in World Athletics’ “Eligibility Regulations for the Female Classification (Athletes with Differences of Sex Development) (the “DSD Regulations”).
It is generally accepted that, on average, male athletes have significant advantages in size, strength and power over their female counterparts. This is thought to be primarily due to higher levels of testosterone circulating in men following puberty. World Athletics consider that, as a result of these factors, there is on average a 10-12% difference in athletic performance between men and women.
Consequently, male and female athletes are typically divided into separate categories of competition, in order to ensure fair and meaningful competition, and to avoid discouraging women from competing in sport.
However, biological sex is not always binary: some individuals may experience atypical development of their chromosomal, gonadal, and/or anatomic sex (known as a “difference of sex development” or “DSD”).
A number of DSDs can produce significantly increased levels of circulating testosterone, with the result that female athletes with such DSDs may have naturally occurring testosterone levels well outside of the average female range, and extending into the average male range. If the DSD athlete is also sufficiently androgen sensitive such that those increased levels of testosterone produce a material androgenising effect on her physique (i.e. if she is a “Relevant Athlete”), one might therefore expect that athlete to possess similar advantages over fellow female athletes to those that men typically have over women. This appears to be borne out by World Athletics’ research, which suggests that the presence of DSD individuals are around 140 times higher in the elite athlete population than in the general female populous, and that their presence on podiums is more frequent still.
World Athletics’ research also suggests that the advantages conveyed on such athletes appear to be greatest in track events between 400m and a mile ("Restricted Events").
The DSD Regulations therefore impose certain criteria on the ability of Relevant Athletes to compete in Restricted Events in an international competition (or to set a world record in such an event at any level), namely that the Relevant Athlete must reduce their testosterone levels (e.g. through hormonal contraceptives) below a specified level for a continuous period of six months before they can compete, and for so long as they wish to remain eligible to compete (whether in or out of competition).
Relevant Athletes who do not meet those 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.
Challenge before CAS by Caster Semenya and Athletics South Africa
Semenya and ASA both filed requests for arbitration in respect of the DSD Regulations in June 2018, requesting that they be declared invalid and void with immediate effect on the basis that they were discriminatory, unnecessary, unreliable and disproportionate.
As reported in our separate article here, CAS 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).
Appeal to the Swiss Federal Tribunal
CAS decisions can be appealed to the Swiss Federal Tribunal (“SFT”), but only on very limited grounds, including lack of jurisdiction, violation of elementary procedural rules (e.g. violation of the right to a fair hearing) or incompatibility with public policy.
Semenya and ASA both appealed CAS’ decision to the SFT on the basis that:
1. in choosing to assess the proportionality of the DSD Regulations in their entirety, rather than separately examining the evidence in respect of each discipline within the list of Restricted Events, the CAS had both unduly restricted its power of review and violated Semenya and ASA’s rights to be heard; and
2. the CAS decision is contrary to “fundamental and widely recognized principles of public order”, namely that the decision violates:
(a) prohibitions on discrimination;
(b) Semenya’s “personality rights” (i.e. her rights to health, bodily integrity, honour, professional consideration, sporting activity and development and economic fulfilment); and
(c) Semenya’s human dignity.
Consideration of the Restricted Events
The SFT held that CAS’ indication that it did not have the power to rewrite the DSD Regulations or to amend the list of Restricted Events (and so was consequently restricted to reviewing the proportionality of the Regulations as a whole) did not constitute an undue restriction of its power of review, or violate Semenya and ASA’s right to be heard.
Indeed, World Athletics had provided evidence relating to each of the Restricted Events and a comprehensive and rational explanation as to how they had been chosen. It was also clear to the SFT that the CAS had thoroughly reviewed this evidence, as the CAS panel opined that the evidence in support of the actual (as opposed to theoretical) advantage conferred on Relevant Athletes in the 1500m and 1 mile events was weaker than that relating to other Restricted Events (and recommended deferring application of the DSD Regulations to those events until more evidence was available on that basis).
Prohibition on discrimination
Semenya and ASA argued that under Swiss law, only important and legitimate public interests could justify differential treatment occasioned by the DSD Regulations, and that the grounds cited by the CAS panel were insufficient to justify the such discrimination. In addition, they argued that the CAS Panel had failed to consider all of the relevant interests involved.
However, the SFT observed that ensuring fair competition sport is a completely legitimate interest. Indeed, judgments such as that of the European Court of Human Rights in National Federation of Sports Associations and Unions and others v France (in which the whereabouts provisions of the World Anti-Doping Code were held to be a legitimate restrictions on athletes’ rights to private life) demonstrate that ECtHR also attaches particularly importance to the aspect of fair competition.
The SFT also found that the CAS panel gave significant consideration to the athletes’ various interests. This included World Athletics’ interest in guaranteeing fair competition within female athletics (and ensuring that female athletes without DSDs continue to be able to compete at the highest level) as well as the potentially negative effects of oral contraceptives on the health of Relevant Athletes, and the damage linked to intrusive physical examinations aimed at assessing testosterone levels and androgen sensitivity of Relevant Athletes.
The STF acknowledged that requiring athletes to undergo such examinations, and the obligation to take oral contraceptives constituted a serious infringement of athletes’ physical integrity.
However, any examinations under the DSD Regulations are carried out by qualified doctors, and only with athletes’ consent. Furthermore, athletes are already subject to similar scrutiny in respect of anti-doping regulations. Whilst the STF acknowledged that taking oral contraceptives could result in significant side effects, athletes were not compelled to do so, and would remain eligible to compete in events (and set world records) in events other than the Restricted Events at international level, or to compete in any event (including the Restricted Events) below that level or in the male category. As a result, athletes’ rights to economic freedom were also not infringed by the restrictions in the DSD Regulations.
The STF also found that the Regulations provided that all investigations were to be conducted in confidence, and were in no way intended to “redefine” or even question the sexual or gender identity of the Relevant Athlete: they merely established the criteria under which they were eligible to compete.
As a result, the STF found that DSD Regulations do not infringe Semenya’s “personality rights”.
For similar reasons, the STF found that the DSD Regulations do not violate human dignity. Female athletes are free to refuse to lower their testosterone levels, nor do the Regulations question in any way the sex of implicated athletes.
It is important to remember that CAS decisions can only be appealed to the SFT on very narrow grounds. As a result, the SFT is bound by the findings of fact made by CAS panels, and cannot rectify or supplement the findings of the arbitrators. The findings of the arbitral tribunal as to the conduct of the proceedings also bind the SFT, whether they relate to the submissions of the parties, statements made during trial, requisitions of evidence or the content of a testimony or expert opinion.
However, the decision is also a reminder that waivers of rights to appeal may not be enforceable against athletes in sports arbitration if they are obliged to accept them as part of the sports’ rules and regulations (as established by Mutu and Pechstein v Switzerland). Semenya was therefore able to appeal the CAS panel decision despite the fact that the DSD Regulations provided that the CAS decision would be final and binding on all parties, without any right of appeal.
ASA’s appeal was also permitted on similar grounds, as the DSD Regulations are binding on all of World Athletics’ member federations (including ASA). The SFT therefore held that ASA’s waiver of its right to appeal the CAS panel’s decision within the DSD Regulations was not freely consented to, and was therefore similarly inoperative.