The most important thing in the Olympics is not to win, but to take part, just as the most important thing in life is not the triumph, but the struggle
Pierre de Coubertine, Founder of Modern Olympic Games
On March 13th, 2020, Double Olympic 800m Champion Caster Semenya stated that she wants to compete in the 200m at the 2020 Tokyo Olympics. With the Olympics onset, it becomes pertinent to revisit the judgement given by the Court of Arbitration for Sport (CAS) to South African middle-distance runner Caster Semenya, as it may affect the career of many athletes. This case provides an opportunity to re-define sex difference as well as a challenge for us to find a reasonable method to incorporate the group of people who do not fit in the binary categories of sex under the ambit of sports competition without any discrimination. It should be kept in mind that legal sex is not confined only to males and females and is subject to variation depending on different jurisdictions. And in strictly biological terms, not all individual bodies unambiguously fit into a single binary female/male category.
This dispute arose after the decision of the International Association of Athletics Federation (IAAF) to enact the Eligibility Regulations for Female Classification; Athletes with Differences of Sex Development (DSD Regulations) to reconcile the differences between male/female classification in competitive athletics. The new DSD regulations replaced the Hyperandrogenism Regulations after the case of Dutee Chand v. AFI and IAAF. The award was given by the Panel following the IAAF’s Constitution and Rules in conjunction, Olympic Charter and in subsidiary wherever necessary Monegasque law. In the present case, the onus of proof is on the claimants to establish that DSD regulations are prima facie discriminatory. The point of contention arose when the upper limit of testosterone was lowered to 5 nmol/L from 10nmol/L for governing the eligibility of 46 XY DSD athletes to compete in the female category events. This regulation shall apply in the case of eight events (Restricted events) i.e. defined in Regulation 2.2b of DSD in International athletic competition. The requests of arbitration by Caster Semenya and Athletics South Africa against the IAAF to declare DSD Regulations were dismissed affirming that the DSD Regulations are reasonable and proportionate. The issues involved in this case are of significant scientific complexity.
However, there exist differences in experts’ opinions and a paucity of evidence regarding matters concerning the effect of enhanced testosterone levels. Caster Semenya maintains that DSD Regulations unfairly discriminate based on physical, genetic, or biological traits, as well as sex, gender, physical appearance, and what sports event a woman competes in. The argument submitted by IAAF is that the purpose and effect of DSD Regulations is to ensure that like cases are treated similarly, while different cases have to be treated in a different manner
The Panel, in its award, refused to discuss whether the invocation of the concept of a ‘male sports sex’ possessed by ‘biological males’ and a ‘female sports sex’ possessed by ‘biological females’ was valid or not. Also, the Panel was not able to conclude whether DSD Regulations are compatible with various domestic and international human rights laws. Caster Semenya submitted before the Panel that DSD Regulations are discriminatory and it goes against the Olympic Charter, IAAF Constitution, Laws of Monaco (governing body of IAAF) and several other laws of member states of IAAF. Article 4 of IAAF Constitution states that one of the objective of IAAF is to ensure that no unfair discrimination exists due to gender, race or religion. Universal Declaration of Human Rights provides a useful framework to identify the concerns raised against DSD Regulations. Article 1 of UDHR ensures that all humans are equal in dignity and rights. Article 1 and Article 14 of European Convention on Human Rights ensures that there should be no discrimination based on sex. UNESCO International Charter of Physical Education, Physical Activity and Sports recognizes that access to sports should be there without any discrimination. The issue interferes with fundamental human rights in a manner that can significantly affect the treatment of women in society. This can lead to psychological harm caused by stigmatization where the affected athletes might be labelled as intersex or sexually atypical. It should be noted that the Panel of CAS agreed that the DSD regulations are discriminatory, but on the evidence before the Panel, it concluded that the discrimination is “necessary, reasonable, and proportionate.” Also, the Panel acknowledges that there will be repercussions/side effects of hormonal treatment to control the testosterone level, but this contention is not sufficient enough to outweigh the contentions in support of DSD Regulations. The award was in favor of IAAF, as the purpose of Regulations was to achieve the integrity of female athletics. Thus, the case still has many irreconcilable contradictions which are important to be answered.
Sexual disposition, one’s biological form, is an inherent feature of one’s identity. Sexual orientation, one’s sexual identity in relation to the gender they are attracted to, is an internal part of a person’s overall identity as well. Before dwelling into the question of the level playing field in sports, one must discuss the innate discrimination that people have faced due to both. Gender equality is at the heart of human rights and United Nations values. Discrimination based on sex is prohibited under every human rights treaty including the International Covenant on Civil and Political Rights, the International Covenant on Economic, the Social and Cultural Rights, the Universal Declaration of Human Rights, and the Convention on the Elimination of Discrimination against Women. To participate in Olympic events and represent one’s nation is an unmatched accomplishment for any athlete. It is greatly unfair to snatch this opportunity from any person based on one’s sexual orientation or gender identity.
Caster Semenya aims to compete at Tokyo 2020 in 200m. (n.d.). Retrieved from http://www.bbc.com/sport/athletics/51881675.
CAS 2014/A/3759 Dutee Chand v. Athletics Federation of India (AFI) & The International Association of Athletics Federations (IAAF), Award of 24 July 2015.
CAS 2018/O/5794 Mokgadi Caster Semenya v. International Association of Athletics Federation (IAAF), Award of 30 April 2019.
CAS 2018/O/5798 Athletics South Africa v. International Association of Athletics Federation (IAAF), Award of 30 April 2019.
Human Rights and Gender – United Nations and the Rule of Law. (n.d.). Retrieved April 22, 2020, from https://www.un.org/ruleoflaw/thematic-areas/human-rights-and-gender/.
OLYMPIC CHARTER. (n.d.). Retrieved from https://library.olympic.org/default/olympic-charter.aspx?_lg=en-GB.Worldathletics.org. (2018, April 26).
World Athletics: IAAF introduces new eligibility regulations for female classification: News. Retrieved from https://www.worldathletics.org/news/press-release/eligibility-regulations-for-female-classifica.