9th September 2020

ASA to seek relief elsewhere after sad Swiss Federal Tribunal ruling

Athletics South Africa has decided to continue its pursuit for justice against the sad ruling by the Swiss Federal Tribunal on the discriminating rules of World Athletics regulating participation of women in athletics. The Swiss ruling upholds the IAAF eligibility regulations for female classification (Athletes with Differences in of Sex Development), commonly known as the DSD Regulations.  The ruling dismissed the appeals lodged by Athletics South Africa and Caster Semenya against the award announced on 30 April 2019 by the Court of Arbitration for Sport (CAS).

ASA will now be seeking an audience with the Minister of Sports for guidance about how the government of South Africa thinks we should collectively take the matter forward in our pursuit to remove discrimination in sports and restore full observance of human rights to all participants. In terms of the original CAS ruling, affected female athletes with testosterone levels that fall within the levels normally found in men, are precluded from participating in international running competitions over distances of 400m to 1 mile unless they reduce their testosterone levels to below a certain value (5 nmol/L) for 6 months before a competition and keep the levels below this value for as long as they wish to compete in international competitions in the women category. 

CAS had found that the differentiation was necessary, reasonable and proportionate in order to preserve the integrity of female athletes and guarantee fair competition. Athletics South Africa had all along contended that the regulations were highly discriminatory against athletes such as Caster Semenya and that the data relied upon to formulate the regulations were irregularly obtained, tainted and unreliable. ASA was therefore, persuaded to appeal against the CAS decision to the Swiss Federal Supreme Court for the following reasons:

1. The CAS award was not unanimous;
2. CAS had recommended to the IAAF not to implement the regulations in respect of the 1500 and mile events due to a lack of evidence;
3. The CAS panel had raised several concerns about the possibility of harmful effects on those athletes who have to undergo the  treatment;
4. The CAS panel had indicated that the regulations need on-going review.

The Swiss Federal Supreme Court determined that it could not interfere with the CAS award as its jurisdiction is limited by law to determine whether the CAS decision violates fundamental and widely recognised principles of public order which was not the case in the present circumstances. The Swiss Federal Supreme Court was satisfied that CAS had comprehensively examined the case and consulted numerous experts before coming to the conclusion that affected athletes have a testosterone level comparable to men which gives them an unsurmountable competitive advantage and enables them to beat female athletes without the higher testosterone variant. Based on these findings, the CAS decision cannot be challenged. The court furthermore endorsed the private interests of female athletes running in the “women” category that needed to be protected.

The court further found that there was no violation of affected athletes’ rights to personality and human dignity as the examinations are carried out by qualified doctors and under no circumstances against the will of any affected female athlete as the athletes are free to refuse treatment to lower their testosterone levels. The decision also does not aim to question in any way the female sex of any implicated female athlete.

ASA had been confident of a favourable outcome before the Swiss Federal Supreme Court given the human rights, medico-legal and scientific arguments and evidence that we believe invalidated the regulations. It is these facts that have left ASA shocked that the court rejected these compelling factors in favour of the WA (formerly known as IAAF). Given the profound and global effect plus consequences the implementation of the regulations will have, the regulations may warrant to be tested in the European Court of Human Rights to pronounce on the matter.

The  rejection by South African and international bodies representing the medical and legal fraternity regarding the implementation of the regulation on ethical and medical grounds, is of particular significance. More importantly, the United Nations has strongly criticised discriminatory practices against women, and its Human Rights Council on 21 March 2019 adopted a resolution for the elimination of discrimination against women and girls in sport giving significant global weight from a human rights perspective. 

The UN resolution expresses concern that the regulations, rules and practices that require woman and girl athletes with differences of sex development, androgen sensitivity and levels of testosterone to medically reduce their blood testosterone levels contravene international human rights norms and standards including the right to equality and nondiscrimination, the right to highest attainable standard of physical and mental health, the right to sexual and reproductive health, right to work and to the enjoyment of just and favourable conditions of work, the right to privacy, the right to freedom from torture or other cruel, inhuman or degrading treatment or punishment, and full respect for the dignity, bodily integrity and bodily autonomy of women and girls.

ASA continues to express our wholehearted support for Caster Semenya and all other female athletes who are similarly affected by the ruling around the world. ASA also takes the opportunity to thank all the role-players including the different governments around the world and fellow national federations that have continued to rally behind this noble course. ASA also thanks the government, UNHRC, the WHO, World Medical Association, different governments around the world and fellow national federations that have continued to rally behind this noble course.

• This media release was published by Athletics South Africa (ASA) on 9 September 2020. Click here for the original.

You may also like...

Pin It on Pinterest

Share This