CAS decision on Caster Semenya: This is what injustice looks like

"The unrelenting gaze 1789-2019", an image by South African art collective xcollektiv

“The unrelenting gaze 1789-2019”, an image by South African art collective xcollektiv comparing the treatment of Caster Semenya to the treatment of Sara Baartman, a subject of medical display in Europe born in 1789.

The Court of Arbitration for Sport has issued a press release outlining a majority decision against Caster Semenya and Athletics South Africa in their case with the IAAF.

Caster Semenya is a Black South African cisgender woman, born with a variation of sex characteristics, seeking to compete in the sex category she was assigned at birth. She first came to public attention in 2009, criticised by some competitors and media for her appearance and failure to conform to western beauty norms: one competitor said, “just look at her”. The events she competes in have been singled out for special treatment in “DSD” clinical regulations by the international governing body for athletics, the IAAF. She has been singled out.

The press statement by CAS makes for disturbing reading, in a case where the claimants had to bear the burden of proof. The media statement reports that the Panel explicitly supported discrimination:

The Panel found that the DSD Regulations are discriminatory

And it did so without a firm basis in evidence – the following statement shows a reliance on “theoretical” advantage:

The difficulty to rely on concrete evidence of actual (in contrast to theoretical) significant athletic advantage by a sufficient number of 46 XY DSD athletes in the 1500m and 1 mile events. The CAS Panel suggested that the IAAF consider deferring the application of the DSD Regulations to these events until more evidence is available.

It minimises the impact of forced medical intervention to reduce innate testosterone levels:

Such reduction can be achieved, according to the IAAF evidence, by the use of normal oral contraceptives.

While recognising that this lacks evidence that may require a re-think:

The side effects of hormonal treatment, experienced by individual athletes could, with further evidence, demonstrate the practical impossibility of compliance which could, in turn, lead to a different conclusion as to the proportionality of the DSD Regulations.

The decision is more of the same old story: discrimination, forced medical intervention, and decision-making despite a lack of evidence.

This is not what justice looks like.

IHRA contributed to a briefing paper by Athlete Ally. We also publish our own briefing paper on intersex people and sport. More details will be shared here in due course.

Publication of case executive summary

On 2 May, an executive summary for the case was published by CAS. This does not change our analysis, but certain statements give increased cause for concern:

It turns out that the IAAF regulations were changed during the course of proceedings at CAS:

6. During the course of the proceedings before the CAS, the IAAF explained that, following an amendment to the DSD Regulations, the DSD covered by the Regulations are limited to “46 XY DSD” – i.e. conditions where the affected individual has XY chromosomes. Accordingly, no individuals with XX chromosomes are subjected to any restrictions or eligibility conditions under the DSD Regulations.

This means that, rather than a focus on innate testosterone levels irrespective of sex chromosomes, the IAAF has chosen to apply regulations to specific events, with specific innate testosterone levels, and with specific chromosomes. The IAAF has returned to chromosome testing – something it abandoned after the humilation of Maria José Martínez-Patiño.

These changes add weight to criticisms of the regulations that they specifically target Caster Semenya. They have the clear (and potentially intended) effect of raising the stakes: placing private, intimate information into the public domain, with an observable and easily anticipated impact on public debate.

The executive summary also draws attention in paragraph 26 to “the paucity of evidence to justify the inclusion of two events (the 1500m and one mile events) within the category of Restricted Events”. There are a small number of “Restricted Events” in the 2018 regulations, and more than 40 women’s athletics events. In our view, this raises serious questions about proportionality that were not taken into account in the judgment.

We give our best wishes to Caster Semenya, and pay warm tribute to her extraordinary athletic achievements and her strength of character.

More information

Court of Arbitration for Sport. 2019. ‘CAS Arbitration: Caster Semenya, Athletics South Africa (ASA) and International Association of Athletics Federations (IAAF): Decision’. May 1.

Court of Arbitration for Sport. 2019. Executive Summary. Court of Arbitration for Sport.

IHRA. 2019. ‘Intersex People and Sport’. Intersex Human Rights Australia. January 16.

Equality Without Borders, and Athlete Ally. 2019. ‘Caster Semenya’s Case against the International Association of Athletics Federations Background and Talking Points’.