Why Semenya has herculean task to overturn lower testosterone level decision
On 4th June 2019, the Swiss Federal Tribunal (SFT) temporarily suspended the application of the differences of sex development (DSD) Regulations passed by the International Association of Athletics Federations (IAAF) on Caster Semenya, women’s 800m Olympic champion.
The regulations mandate female athletes with DSD and XY chromosomes wishing to compete in track events from 400m to 1,500m to lower their testosterone level to the normal female range from the male range.
Opponents of the regulations argue these athletes were born, bred and identify as women. It is thus inhumane to compel them to take hormones to lower their testosterone level. On the other hand, the IAAF maintains that the regulations are necessary to level the competition.
Athletics South Africa (ASA) and Semenya challenged the regulations as discriminatory at the Court of Arbitration for Sport (CAS). The CAS upheld IAAF’s arguments that the regulations were necessary, reasonable and proportionate to protect fair and meaningful competition.
Kenyan athletes affected by the regulations include Maximilla Imali (the national 100m and 400m record holder), Margaret Nyairera (Olympic 800m bronze medalist) and fast-rising 400m runner Evangeline Makena.
Since the SFT ruling only applies to Semenya, the Kenyan trio have to comply with the regulations to participate in an IAAF sanctioned event. Athletics Kenya (AK) remained neutral leaving the affected Kenyan athletes on their own, unlike Athletics South Africa (ASA), which has diligently defended its affected athletes.
One might ask why the SFT, a Swiss judicial body, is hearing a dispute between a South African association and citizen against an athletics federation based in Monaco. IAAF has its own internal dispute resolution bodies and tribunals.
A disputant who’s exhausted the IAAF’s internal mechanisms but dissatisfied with the result can only appeal to the CAS, seated in Lausanne, Switzerland.
CAS adopted its procedural rules in accordance with the Swiss Private International Law Act, which provides the general framework for international arbitration in Switzerland.
ASA and Semenya must have challenged the ruling by CAS on the grounds that it violates the principle of international public policy against discrimination.
SFT will have to determine whether the regulations strike the right balance between an individual’s personal dignity and the need to protect fair and meaningful competition. ASA and Semenya face a herculean task convincing the SFT to overturn the CAS verdict. STF has shown deference to CAS since its establishment in 1984 and overturned very few cases.
The author is an international lawyer based in Washingon, DC