8 September 2020

Caster Semenya remains determined to fight for Human Rights

After many months of deliberation, the Federal Supreme Court of Switzerland has refused to set aside a 2019 ruling against Olympic gold medalist Caster Semenya by the Court of Arbitration for Sport (CAS). The CAS ruling had upheld controversial regulations issued by the International Association of Athletics Federations IAAF, which now calls itself World Athletics.

The Swiss Supreme Court found that World Athletics’ requirement of subjecting certain female athletes to drug or surgical interventions as a precondition to compete in women’s 400m to 1500m events does not amount to a violation of Swiss public policy. The Supreme Court stressed the strict limitations of reviewing a violation of Swiss public policy, which has only been accepted once in over 30 years.

Importantly, the Swiss Supreme Court was bound by the controversial factual findings of the majority of the CAS Panel (without regard to the findings of the dissenting arbitrator). Based on those controversial facts, the Swiss Supreme Court denied a violation of Swiss public policy. The Swiss Court dismissed the appeal despite finding that the World Athletics regulations seriously violate Caster’s physical integrity because the required hormonal drug intervention is not medically indicated, has negative health effects and is not based on the athlete’s free consent.

This ruling supports World Athletics’ efforts to prevent Caster from defending her 800m gold medal at the Tokyo Olympics in the summer of 2021. Caster commented: “I am very disappointed by this ruling, but refuse to let World Athletics drug me or stop me from being who I am. Excluding female athletes or endangering our health solely because of our natural abilities puts World Athletics on the wrong side of history. I will 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. I know what is right and will do all I can to protect basic human rights, for young girls everywhere.”

Dorothee Schramm, a partner with Sidley Austin LLP and the lawyer who led Caster’s appeal, added: “This decision is a call to action – as a society, we cannot allow a sports federation to override the most fundamental of human rights.”

Caster is considering all of her options internationally and domestically, noting that the World Medical Association (WMA) has called on physicians around the world to take no part in implementing the World Athletics regulations and has demanded their immediate withdrawal. In April 2019, the WMA stated that the World Athletics rules “constitute a flagrant discrimination based on the genetic variation of female athletes and are contrary to international medical ethics and human rights standards.”

Caster also has the full support of the United Nations High Commissioner for Human Rights who, in a June 2020 report titled “Intersection of race and gender discrimination in sport”, called on World Athletics to “review, revise and revoke” its eligibility rules. The United Nations report stresses concerns that the regulations “effectively legitimize the surveillance of all women athletes based on stereotypes of femininity” and “single out a group of women athletes, putting them at risk of repercussions far beyond the inability to compete,” and holds that the implementation of such regulations “denies athletes with variations in sex characteristics an equal right to participate in sports and violates the right to non-discrimination more broadly.”

In refusing to invalidate the World Athletics rules, neither the CAS or the Swiss Supreme Court decided whether the World Athletics rules are lawful or enforceable under the domestic law of various countries around the world, such as Japan, with the CAS finding that this “will ultimately be a matter for the courts of the various jurisdictions in question to determine.”

Greg Nott, a partner with Norton Rose who has been Caster’s advisor for over a decade commented: “Nelson Mandela taught us that sport has the power to inspire and unite people. The World Athletics regulations upheld by the Swiss judgment do neither. This setback will not be the end of Caster’s story. She has an amazing team of advisors and lawyers behind her from countries around the world, including South Africa, Canada, Switzerland, the United Kingdom, India, the United States and the European Union. The international team is considering the judgment and the options to challenge the findings in European and domestics courts. We stand with Caster. We stand united, and united we are strong.”

• This media release was issued by Norton Rose Fulbright on 8 September 2020. Click here for the original.

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