30 Sep The Decision of the Swiss Federal Supreme Court in the Caster Semenya Case: A Human Rights and Gender Analysis
[Lena Holzer is a PhD Candidate in International Law at the Graduate Institute of International and Development Studies (IHEID) in Geneva and affiliated with the IHEID Gender Centre.]
On 8 September 2020, the Swiss Federal Supreme Court (SFC) published its highly anticipated decision in the Caster Semenya case. Unfortunately, but not entirely surprisingly, it rejected Mokgadi Caster Semenya’s appeal against the Award by the Court of Arbitration for Sport (CAS) and thereby upheld the legality of the so-called “testosterone rules” by World Athletics (previously called IAAF). Based on these rules, the South African runner Semenya was banned from competing in middle-distance track events because her naturally produced testosterone levels exceeded the arbitrary threshold defined by World Athletics. This blog post analyses why the judgment by the SFC is a disappointing decision from the perspective of human rights and gender justice, and reflects broader structural inequalities in international sports arbitration. After providing some background knowledge on the Caster Semenya case, I will first dismantle some of the misunderstandings on the specific issues presented in the case and then touch upon the lack of adequate safeguard to ensure athletes’ access to justice. Some of the points discussed were further elaborated in my recent article.
The Caster Semenya case at the CAS
The current testosterone rules by World Athletics, also called DSD Regulations, are part of a history of “sex tests” carried out on women athletes by international sports federations since the 1960s. These tests have singled out specific body characteristics, such as genital appearance, chromosomes and hormone levels, to define whether a woman qualifies as such for sporting purposes. World Athletics’ current rules, the DSD Regulations, hold that women with a level of naturally produced testosterone above 5 nmol/L, who are sensitive to testosterone and who have XY chromosomes, cannot compete in certain women’s international athletic events unless they lower their testosterone level artificially. The athletic competitions in question are track events of distances between 400 meters and one mile, exactly those ranges in which Semenya competes.
Semenya and Athletics South Africa (ASA) contested the legality of the DSD Regulations as ordinary proceedings at the CAS in 2018, shortly after the arbitration tribunal had terminated a similar case initiated by Dutee Chand in 2015. The CAS was the only possible dispute settlement mechanism in the case, as the DSD Regulations hold explicitly that any dispute related to the rules’ application must be submitted to the CAS (§ 5.2, 5.3).
The DSD Regulations were challenged by Semenya and ASA on the basis that they are discriminatory against women athletes in general and in particular against women athletes with “certain physiological traits”, which here I will call intersex variations. Moreover, the two claimants held that the DSD Regulations lack a sound scientific basis, are unnecessary to establish fair competitions and cause irreparable harm to the concerned athletes, such as violations of their bodily integrity. At the end of April 2019, the majority of the CAS arbitrators rejected all of these claims by arguing that the DSD Regulations might be discriminatory, but that such discrimination “is necessary, reasonable and proportionate” to ensure fairness in women’s competitions (see Executive Summary and full award). However, many international human rights bodies have disputed this assessment (see e.g. here and here). For example, a recent OHCHR report holds that the “implementation of female eligibility regulations denies athletes with variations in sex characteristics an equal right to participate in sports and violates the right to non-discrimination more broadly” (para 34).
Semenya’s appeal to the SFC
As the CAS is located in Switzerland, Semenya and ASA appealed the tribunal’s decision for violating the prohibition of discrimination, human dignity and Semenya’s personality rights (right to bodily integrity, identity, private life and economic freedom) at the SFC. The SFC emphasized that its competences in the case were limited to examine whether the CAS Award violates fundamental and widely recognized principles of public order, which, as it clarified, includes the prohibition of discrimination, certain personality rights of athletes and the notion of human dignity (decision, § 9.4, 10.1, 11). The SFC further stressed that an arbitration award violates “public order” only when it is “manifestly untenable”, clearly disregards important legal principles and “shockingly” offends the feeling of justice and equity (decision, § 9.1).
The SFC rejected Semenya’s and ASA’s appeal by arguing that “the CAS has comprehensively examined the Caster Semenya case and consulted numerous experts” (see Press Release). It consequently ordered the two applicants to pay each a compensation of CHF8.000 to World Athletics and to split the legal costs of CHF14.000. The SFC’s decision is not entirely unexpected, given the narrow jurisdiction of the SFC in the case. Yet, it is still unfortunate that, due to this narrow jurisdiction, the SFC could not rectify the gender biases and intersexphobia, such as the assumption that testosterone is a “male property” that women are not allowed to possess, which had influenced the CAS’ decision. Moreover, the SFC reproduced several of the CAS’ harmful and reductionist assumptions on sex and gender in sports, which I have analysed elsewhere. For example, by holding that the testosterone regulations are necessary for ensuring fairness and preserving the “protected class of women” in sports, the SCF framed athletes like Semenya as a threat to other women. Moreover, it showed how normalized the regulation of women’s hormone production is by downplaying the possible side effects, such as nausea, depressions and weight gain, which can be caused by the hormone treatments to lower the athletes’ testosterone levels.
Worth noting is also that the SFC justified its decision by referring to the fact that the CAS based its Award on the “unanimous opinion of the experts” (Press Release). While this should likely provide the decision with a guise of “scientificity”, it is in fact incorrect, since the expert witnesses participating in the CAS proceedings were far from sharing a unanimous opinion. The SFC effectively ignored the 23 experts who testified in favour of Semenya and ASA and against the DSD Regulations at the CAS. By side-lining the knowledge of these expert witnesses, the SFC failed to engage seriously with Semenya’s and ASA’s claim that the DSD Regulations are discriminatory because of not being necessary for ensuring fairness in women’s sport competitions. Contrary to what the SFC postulated, there is no consensus among scientists that naturally produced testosterone above 5 nmol/L provides the women concerned with “an insurmountable competitive advantage and enables them to beat female athletes without the “46 XY DSD” variant” (Press Release).
And even if there was an athletic advantage of 0-3%, as suggested by World Athletics, how would this advantage be different from other genetic and socio-economic advantages in sports? Why are women athletes with certain intersex variations singled out among women with other advantages in sports, such financially privileged women who can access the best training and nutrition, runners with long legs, swimmers with large hands and tall basketball players? Requiring women athletes with intersex variations to undertake medically unnecessary hormone treatment is basically an unprecedented interference in the right to bodily integrity in sports, because when were other athletes asked to change their natural bodies as they were too good in their discipline? Michael Phelps is celebrated for his extraordinary vast wingspan and low production of lactic acid that advantage him in swimming, while Semenya is forced to change a remarkable body characteristic that might give her an athletic advantage.
The SFC also failed to discuss other issues related to the principle of non-discrimination, which could potentially be the case because Semenya and ASA might have not raised them in their submissions. For instance, the SFC did not debate whether it is discriminatory against women that there are no upper testosterone limits for men, as the DSD Regulations’ rationale that high testosterone harms the “level playing field” by conferring a competitive advantage should logically also apply to men’s competitions. The SFC judges equally ignored the Regulation’s problem of (indirect) race discrimination, substantiated by some evidence showing that mainly black and brown athletes and athletes from the Global South have been subjected to testosterone tests based on the DSD Regulations. Lastly, it is unfortunate that the SFC did not fully embrace the protection against horizontal discrimination as part of an issue of “public order”. The decision noted that as the case involves an agreement between two private bodies, World Athletics and an athlete, it is doubtful whether the prohibition of this specific type of discrimination “is included in the scope of the restrictive notion of public order” (§ 9.4). This approach is reflective of the weak anti-discrimination law in Switzerland, which has yet to implement effective measures to protect intersex persons from discrimination in the public and private sphere, as demanded by the abovementioned OHCHR report (§ 54(b)).
Structural hurdles for athletes to access justice
As intersex rights activist Tony Briffa said, the SFC decision “is a disappointing setback, and international sports organisations should be held accountable for failing to uphold the human rights of women athletes” (ILGA World 2020). This statement alludes to the fact that the SFC decision shows not only a failure of the sporting system to protect the rights of women athletes with intersex variations but also broader structural problems for ensuring athletes’ rights. Indeed, the relationship between human rights and sports is not an easy one, but one that is increasingly discussed (e.g. Dhonchak, 2020).
Like in many other cases involving the rights of athletes, Semenya was de facto forced to accept the jurisdiction of the CAS, since not accepting the rules on dispute settlements under the DSD Regulations would have meant that she could not challenge them at all. At the same time, the SFC underscored in its decision that it is not a proper Appeal Court for CAS awards, but that its jurisdiction is limited to overturning an award if it is incompatible with the “public order”, which happens only on extremely rare occasions (“est chose rarissime”). Additionally, it held that violations of the Swiss Constitution and the European Convention on Human Rights (ECHR) cannot be invoked in the SFC review of the CAS Award, even if principles of the Constitution and the ECHR can help to interpret the notion of “public order” (decision, § 9.2). This would mean that, at least when the CAS is the dispute settlement mechanism, athletes like Semenya can avail themselves neither to a proper appeal mechanism nor the protection of European and constitutional human rights protections.
However, let us look closer at the argument that the ECHR does not apply to private arbitration awards assessed by the SFC. In 2018, the European Court of Human Rights (ECtHR) clarified in Mutu and Pechstein v. Switzerland two crucial points concerning the applicability of the ECHR to CAS Awards. It concluded that the athletes’ acceptance of settling a dispute with a sports federation through CAS arbitration is mostly de facto compulsory, instead of voluntary. Deciding between accepting the CAS arbitration or dropping out from competitions is not a real choice for athletes whose career depends upon participating and winning competitions. The ECtHR thus held that in such cases of compulsory CAS arbitration, waiving safeguards provided for under Article 6.1 of the ECHR is not possible. The CAS proceedings must therefore guarantee, at least, the right to a fair trial as protected by ECHR Article 6.1 (§ 95-96). In 2020, the ECtHR reached similar conclusions concerning another sports dispute resolution body in Ali Rıza and Others v. Turkey (§ 181).
Yet, more relevant for the Caster Semenya case is that the ECtHR established in the Mutu and Pechstein case that Switzerland’s responsibilities under the ECHR could be engaged concerning the acts and omissions of the CAS Award, since the SFC had given the Award the force of law under the Swiss legal system (§ 62-67). Thus, the ECtHR can hold Switzerland accountable for validating acts or omissions by the CAS that are contrary to the ECHR. The same was confirmed in Platini v. Switzerland (§ 36-38). This means that as the SFC validated the CAS Award that had approved the DSD Regulations, Semenya could appeal to the ECtHR for determining whether demanding women with intersex variations to change their natural bodies as eligibility condition for certain sport events conforms to the ECHR.
What is next?
At this point, it remains unclear to the public whether Semenya is willing to bring her case in front of the ECtHR. A decision by this major regional court on human rights could help to clarify the relationship between (sports) arbitration and human rights. The Caster Semenya case has so far shed light on structural inequalities, gender biases and intersexphobia in sports. It made visible that athletes in general and women athletes with intersex variations in particular remain outside of any effective system that guarantees their access to justice and human rights. The case thus advances the discussion about the necessity to reform the sports justice system, which other athletes, notably Pechstein, have started. Until human rights guarantees and gender justice in sports are reached, Semenya is determined to “continue to fight for the human rights of female athletes, both on the track and off the track, until we can all run free the way we were born.”