26/06/2019

Caster Semenya and the International Association of Athletics Federations: More questions than answers?

The International Association of Athletics Federations (IAAF) have been ordered by the Swiss Supreme Court to suspend their testosterone regulation with immediate effect after a successful appeal of the Court of Arbitration for Sport’s (CAS) decision.

Caster Semenya, an Olympic Champion, is deemed to be an athlete with differences in sexual development (DSD), and as such, was born with testes. The result of the high testosterone in female athletes can result in an increase in physical attributes most notably power, strength and size.

The IAAF has introduced a policy that requires athletes with DSD to reduce their testosterone levels to -5 nmol/L for a period of six months prior to competing internationally on the racetrack. During their decision making, CAS agreed that the policy can be deemed as “discriminatory” to athletes with DSD, but somewhat unusually, ruled in favour of the IAAF, stating that such a policy, while discriminatory, was necessary to ensure fair competition in women’s sport, and was “necessary, reasonable and proportionate.”

The Swiss Supreme Court has set aside the decision of CAS after a successful appeal, and the decision, in the first instance, will only apply to Caster Semenya and no other athlete with DSD. The decision of the Supreme Court is interesting as it appears to overturn the ‘discriminatory’ element of the original decision of CAS, potentially correcting a decision that allows a discriminatory policy to have legal effect and be successfully utilised by the IAAF.

There is a clear issue here with the effective balancing of rights between a female athlete’s rights to not be discriminated against (notwithstanding the policy in question) and ensuring fair competition in women’s sport.

Secondly, and from a more jurisdictional perspective, there are questions as to whether a national court should be setting aside decisions of CAS, which is a private body, a court of last instance, and has been created primarily to resolve sporting disputes.

Zaman Kala (Lecturer)

Law

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