31 July 2019

Suspension of application of DSD Regulations to Semenya revoked

The Swiss Federal Supreme Court has revoked a 31 May supra-provisional order suspending the application of the International Association of Athletics Federations’ (IAAF) DSD Regulations to Caster Semenya. It has also rejected requests for the provisional suspension of the DSD Regulations from both the South African runner and from Athletics South Africa.

The Court said it had taken its decision after hearing counter arguments from the IAAF. ‘Such orders are only issued if it appears, after a summary examination of the case, that the appeal seems with high probability to be well founded’, read a 30 July statement (PDF below). ‘The Swiss Federal Supreme Court concludes, in a first summary examination, that Caster Semenya’s appeal does not appear with high probability to be well founded’.

The full 29 July interlocutory order (available here in French) reveals that this is because Semenya’s challenge to the DSD Regulations was based on the argument that they are discriminatory, and whilst the CAS agreed, it found that such discrimination was proportionate and necessary in order to defend the IAAF’s ‘protected class’ of female competition. Secondly, it points out that Semenya argued at CAS that the DSD Regulations infringe her human rights. ‘It should be remembered that in several judgments, the Federal Supreme Court has held that the European Convention on Human Rights does not apply directly to arbitration’, it reads.

Therefore, although Semenya’s lawyer told The Guardian that yesterday’s announcement will have no impact on Semenya’s appeal against the CAS decision to reject her challenge to the DSD Regulations, it would appear that the 29 July order dismisses arguments that they are discriminatory and infringe internationally recognised human rights standards. The Swiss Federal Supreme Court adds that its powers to review the CAS’s 30 April decision (PDF below) are limited.

‘The Swiss Federal Supreme Court further points out that its power of review in cases of international arbitration is very limited and, as a general rule, only involves examining whether the contested decision is compatible with fundamental principles of public order (“ordre public”)’, reads its 30 July statement. ‘It stresses that this also applies in the field of sport and that the Swiss Federal Supreme Court is by no means a “Supreme Court for Sports”, which could examine the matter freely’.

‘The IAAF welcomes the Swiss Federal Tribunal’s decision today to revoke its Super-Provisional Order of 31 May 2019 after hearing the IAAF’s arguments’, read an IAAF statement. ‘This decision creates much needed parity and clarity for all athletes as they prepare for the World Championships in Doha this September. In the remainder of the proceedings before the SFT, the IAAF will maintain its position that there are some contexts, sport being one of them, where biology has to trump gender identity, which is why the IAAF believes (and the CAS agreed) that the DSD Regulations are a necessary, reasonable and proportionate means of protecting fair and meaningful competition in elite female athletics.’

Semenya appealed to the Federal Supreme Court after the Court of Arbitration for Sport (CAS) dismissed her challenge to the validity of the Eligibility Regulations for the Female Classification (Athletes with Differences of Sex Development) in May. As the IAAF statement clarifies, the Swiss Federal Supreme Court has yet to rule on that challenge. 

However, Semenya has taken the ruling to mean that she will not be able to defend her 800m title at the Doha 2019 IAAF World Championships. ‘I am very disappointed to be kept from defending my hard-earned title, but this will not deter me from continuing my fight for the human rights of all of the female athletes concerned’, read a statement from her PR agency, reports The Guardian.

The DSD Regulations cover athletes with one of five listed DSDs competing in international events run between 400m and one mile in the IAAF female category, if their testosterone levels are above 5nmol/L and have an ‘androgenising effect’ (i.e. if that testosterone is taken up by their androgen receptors and boosts their physiology). The DSD Regulations only apply to XY women:

• That have one of five DSD conditions outlined by the IAAF in Article 2.2 of the Regulations;
• with naturally occurring testosterone above 5 nmol/L that compete in the Restricted Events;
• That have sufficient androgen sensitivity for naturally occurring testosterone at levels above 5 nmol/L to have a ‘material androgenising effect’.

XY females covered by the Regulations must:

• Be recognised by law as either female or intersex;
• must use hormonal contraceptives to reduce testosterone levels to below 5 nmol/L for six months prior to competing;
• must maintain naturally occurring testosterone at below 5 nmol/L.

If a XY female athlete covered by the DSD Regulations fails to take these steps, they will be ineligible to compete in the international Restricted Events, or to set world records. However, they would be eligible for all non-international events, male category events, or any ‘intersex’ events offered in the future.

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