30th March 2019

ASA not amused of agreement breaches in case before CAS

Athletics South Africa has noted with much concern public statements attributed to the IAAF and its president, Seb Coe, in recent weeks, following the conclusion of the Court of Arbitration (CAS) hearing on Friday 22 February 2019.  The CAS hearing concerned the IAAF Eligibility Regulations for Female Classification (Athletes with Differences of Sex Development) for Track Events ranging from 400m up to, and including One Mile, issued on 23 April 2018. The concern arises from confidentiality agreements entered into by the parties to the arbitration, namely the IAAF, Caster Semenya, and ASA.

Notwithstanding such an agreement, the IAAF have on several occasions (in breach of the agreement) issued public statements on matters relating to, and arising from, the Regulations. ASA would have preferred an open and transparent hearing of the matter given the (legitimate) global interest therein, but was persuaded that medically sensitive issues, and in particular, privacy issues relating to Ms Semenya, would arise during the proceedings, and that a closed and confidential hearing was appropriate.

Notwithstanding the agreement, the IAAF have on several occasions issued media releases, and its President has seen fit to comment publicly on matters relating to the Regulations. Most recently, the IAAF publicly criticised a resolution adopted by the Human Rights Council of the United Nations (UNHCR) at its 40th session held from 25 February to 22 March 2019. The resolution relates to the elimination of discrimination against women and girls in sport, and after reaffirming the purposes and principles of the Charter of the United Nations, and various UN declarations and conventions relevant to the issue, the resolution expresses concern at what are described as “discriminatory regulations, rules and practices”.  

The resolution furthermore calls upon States to ensure that sporting association and bodies implement policies and practices in accordance with international human rights, norms and standards, and to refrain from developing and enforcing policies and practices that force, coerce or otherwise pressure women and girl athletes into undergoing unnecessary, humiliating and harmful medical procedures in order to participate in women’s events in competitive sports, and to repeal rules, policies and practices that negate their rights to bodily integrity and autonomy. ASA fully supports the call, and the resolution adopted by the UNHCR. Indeed, the resolution accords with a written submission made by the UNHCR to CAS prior to the hearing of the matter. It is therefore nothing new.

ASA had also argued that the IAAF must comply with policies and practices that accord with international human rights, norms and standards, and to implement them. Indeed, the South African Constitution requires ASA to uphold international law.

ASA therefore rejects any criticism of the UNHCR resolution, and its request for the UN High Commissioner to prepare a report in due course. A few days ago, the following remarks were attributed to Seb Coe that appeared in the Australian Daily:

“The reason we have gender classification is because if you didn’t then no woman would ever run another title or another medal or break another record in our sport”.

We support the rebuke issued by Ms Semenya’s lawyers. We agree that the DSD Regulations are discriminatory on a number of bases including birth, sex, gender, physical appearance, and the fact that they are restricted to specific events (namely 400m to a mile). Ms Semenya was born, raised and has participated in athletics as a woman, and identifies as a woman. The Regulations attempt to classify her and other female DSDs as “biologically male” or as having a male “sports’ sex”. The Regulations are nothing other than a further attempt (like other scientifically discredited attempts in the past) at so-called gender verification testing.

Like in the previous Chand case, the IAAF was required to place empirical evidence before CAS to establish that the naturally occurring testosterone levels of athletes targeted by the DSD Regulations confer a significant performance advantage over other female competitors, comparable to the performance advantage that male athletes enjoy over women, and which would justify limiting their eligibility to compete in the manner that the IAAF seeks to do through the DSD Regulations. The IAAF has again failed to do so in the proceedings before CAS, and has sought rather to contend that female athletes targeted by the DSD Regulations are in fact ‘biologically male’.  The analyses relied on by the IAAF do not show a meaningful relationship between testosterone and performance. 

Indeed, there are numerous factors that indicate that women with DSDs do not, and should not be expected to have advantages similar in magnitude to those observed when comparing elite men to elite women, as contended by the IAAF. ASA also takes the opportunity to state that the pending matter before the CAS has nothing to do with the transgender athletes. Any public comment or discourse linking the transgender debate to the pending matter before the CAS is unhelpful, serving only to reinforce by implication a false position that DSD athletes are ‘biologically male’.

The delay in handing down the CAS award (due on 26 March 2019), is entirely due to the IAAF seeking to amend the Regulations post the CAS hearing. This necessitated a further exchange of written argument between the parties.

ASA calls upon the IAAF and its President, Seb Coe, to refrain from further public comment pending the outcome of the CAS award due towards the end of April 2019. In doing so, ASA however respects the right of third parties and the media to openly debate issues arising from the IAAF’s DSD Regulations. It is indeed in the public interest that they do so. ASA hopes it is done responsibly and sensitively with due regard to the rights of the parties concerned, especially that of Ms Semenya. 

• This media release was published by Athletics South Africa (ASA) on 30 March 2019. Click here for the original.

You may also like...

Pin It on Pinterest

Share This