The landmark ruling yesterday in the case of the Olympic 800 metres champion Caster Semenya could have significant repercussions for the way in which sports governing bodies treat female and transgender athletes.
The South African middle-distance runner contested regulations proposed by the International Association of Athletics Federations (IAAF), which will prevent females with naturally high testosterone levels from competing in track events from 400 metres to a mile unless they take steps to reduce the level of testosterone naturally occurring in their bodies.
The regulations were supposed to come into force on 1 November 2018 but were delayed as a result of Semenya’s challenge, which was rejected yesterday by the Court of Arbitration for Sport (CAS).
Semenya’s case was heard in February, and the CAS decision was postponed from 26 March. While awaiting the decision, Semenya has continued to compete, winning gold in the 5,000m race at the South African Athletics Championships last Friday.
CAS recognised that the regulations discriminated against those like Semenya with differences of sexual development, but ruled by a majority that “on the basis of the evidence submitted by the parties, such discrimination is a necessary, reasonable and proportionate means of achieving the IAAF’s aim of preserving the integrity of female athletics”.
The decision will be a great disappointment to Semenya and those who supported her, including the United Nations, which had urged the IAAF to withdraw the regulations, describing them as “unnecessary, harmful and humiliating”. Despite dismissing Semenya’s appeal, CAS set out a number of concerns in its 165-page ruling on the future practical application of the regulations. This leaves them open to future challenge, and Semenya has 30 days to appeal the verdict.
The regulations will come into force from 8 May 2019, meaning that Semenya and other women affected by the regulations will be required to seek medical intervention to lower their naturally high testosterone levels to remain eligible to compete. If they want to take part in September’s World Championships in Doha, they will need to start taking medication this week. Going forward, they will be required to lower their testosterone for a period of six months before competing.
Sports governing bodies should be aware of this decision as it could transform sports regulation as we know it. For now, it will apply only to athletics, where men and women tend to compete separately.
However, the regulations could, in theory, be extended to male competitors who have naturally high testosterone levels, and they could also be introduced in other sports.
Semenya’s case sets a precedent of requiring athletes to take measures to artificially alter their physical traits to give others a fairer chance of competing against them. People are born with unique physical traits; a fortunate few are born with traits that afford them a competitive sporting advantage. It would be impossible to achieve uniform fairness in physical competition and it is not practical for sports regulation to attempt to do so. While Semenya can take steps to reduce her natural advantage, it is easy to see why many disagree with the principle of these regulations.
CAS’s ruling could also have a knock-on effect for transgender competitors as testosterone levels tend to be a key factor in determining whether a trans person is eligible to compete. Equalities legislation permits the exclusion of trans competitors in certain circumstances: a sports body has to demonstrate that the sport is “gender affected” – that being one gender placed at a disadvantage compared to the other – and that the exclusion of the trans person is necessary to preserve fair competition or the safety of competitors. The question of whether exclusion is necessary is complicated, involving legal and medical analysis of a number of factors, and holds the risk of a discrimination claim if an individual believes the exclusion to be unlawful.
Eligibility to compete covers a multitude of complex legal, scientific, factual and ethical issues. It is an area of sports law that will continue to evolve. The International Olympic Committee (IOC) is a good example of a progressive governing body. It is introducing mixed events in athletics, triathlon, swimming and table tennis at the Tokyo Olympics in 2020. The IOC’s Sports Director, Kit McConnell, supported this, saying: “We have taken a really important step forward in terms of gender equality.”
An increase in mixed-gender sports may be the future, particularly given the increase in the number of individuals who do not exclusively identify as male or female. How willing other sports governing bodies will be to follow the IOC’s approach remains to be seen.
l Rebecca Nicholson is an employment lawyer at Shepherd and Wedderburn LLP