This article will proceed to examine the regulatory gaps in the protection of athletes’ gender rights that have been exposed through the review of gender regulation in sport, and the CAS challenges. These matters have been discussed as part of the wider investigation into the deficiencies in the approach to dealing with human rights abuses in sport.Footnote 67 The unique position of sex and gender in sport adds further complexity to this evaluation.
Compatibility, enforceability and accountability
Concerns have been repeatedly raised about the compatibility of the 2018 Regulations with international human rights standards. Both Chand and Semenya argued that the gender rules were incompatible, with not only sport policies such as the IAAF Constitution and the Olympic Charter (Fundamental Principle 4 states that the practice of sport is a human right), but also that the IAAF had breached their non-discrimination obligations under Monegasque law, the laws within the jurisdiction in which international athletics competitions are held, and broader fundamental human rights law.Footnote 68 Potential breaches of other rights concerning consent and privacy in the medical assessment and treatment processes were also raised. From the outset, Semenya stated in her challenge that this is, ‘not just about the right to participate in sport, it is about the right to be human.’ Footnote 69 Yet, the thorny relationship between sport and the law limits the compatibility and enforceability of these rights. A regulatory gap in the protection of athletes’ rights therefore concerns binding sports bodies to obligations under human rights provisions and holding them accountable for human rights breaches through a legal or non-legal framework.Footnote 70
This is supported by the United Nations who made an amicus curiae submission to CAS in Semenya v IAAF about the compatibility of the eligibility rules with international human rights norms.Footnote 71 The United Nations Human Rights Council (UNHRC) reinforced this concern. The treatment of athletes in this way goes beyond equality and discrimination, and threatens other rights including,
‘the right to the highest attainable standard of physical and mental health, the right to sexual and reproductive health, the 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 the person.’Footnote 72
The UNHRC acknowledges the autonomy of sport to govern itself but stress that sport rules should be implemented in a manner consistent with these human rights standards.Footnote 73 However, CAS established its limited judicial role and concluded that human rights are a matter for the courts of the various jurisdictions to decide.Footnote 74
As demonstrated, the unilateral rules and practices of sports bodies significantly impacts upon the enjoyment of athletes’ human rights. Given their dominance, there is an inevitable encroachment into international human rights.Footnote 75 However, typically human rights provisions are associated with vertical obligations owed by the State to the individual in the public sphere. States are therefore bound by international law and only they can be the subject of complaints. This places non-state actors such as sports bodies outside of the legal regime and creates a gap in the protection of athletes’ rights.Footnote 76
Within the broad human rights framework outlined earlier, international instruments steer States and stakeholders to promote non-discrimination in sport and recognise gender rights. They set minimum standards encouraging States to adopt and implement measures, including legislation, to eliminate discrimination based on sex or gender.Footnote 77 In accordance with UNHRC Resolution 40/5,Footnote 78 in 2020 the UN High Commissioner for Human Rights published a report outlining the incompatibility of female eligibility regulations with equality and non-discrimination principles, in respect of athletes with variations in sex characteristics, and placed further obligations on States to redress human rights abuses through the application of pressure on sport.Footnote 79 The report emphasises the potential violation of other rights beyond discrimination, including the right to freedom from torture and other cruel, inhuman or degrading treatment or punishment, the right to work, the right to the highest attainable standard of physical and mental health, the right to sexual and reproductive health, the right to privacy and the right to respect for the dignity, bodily integrity and bodily autonomy of the person.
Consistent throughout some of these provisions is the agreement that private actors should adopt human rights principles in their operations. Much has been written about augmenting the existing vertical framework by imposing a system of ‘horizontal obligation’ or ‘diagonal obligation’ instead.Footnote 80 The horizontal application of human rights norms would subject all law, which governs all types of legal relations, to review for compatibility with human rights. A diagonal or indirect obligation would be placed upon the State to protect individuals from actions of non-state actors. States could use the legal framework to apply pressure on sports bodies to act fairly. There are degrees of approach that can be achieved within the vertical and horizontal application but there has been little progression in binding international law to non-state actors.Footnote 81
An increasing range of non-legally binding soft law tools are being introduced to encourage non-state actors to comply with human rights and to encourage States to more closely regulate non-state actors.Footnote 82 The UN Guiding Principles on Business and Human Rights set an expected global standard for remedying human rights abuses linked to business activity.Footnote 83 These provisions have produced some positive effect, with some sports bodies filling the gap by formally embedding the UNGP’s into their rules and regulations.Footnote 84 Whilst this is an important development in the reconciliation of sport with human rights, the soft law tools continue to lack effective enforceability and impact.Footnote 85 In addition, many of these documents include arbitration clauses with explicit reference to CAS.
At the regional level, the ECtHR have been prepared to intervene in the sport regulatory space, as evidenced in various cases evaluated below. The Court of Justice of the European Union (CJEU) are also increasingly progressing the horizonal applicability of EU law,Footnote 86 but no cases have concerned sex or gender discrimination in sport at this level. The EU have demonstrated a competence in sport as reinforced by Article 165 TFEU and in the EU White Paper on Sport.Footnote 87 In assessing the compatibility of sports rules with Community law in various cases, the CJEU implies that a balance between individual and sporting interests is possible by encouraging good governance which recognises the specificity of sport through a more sensitive and autonomous application of EC law.Footnote 88 However, the EU White Paper includes within the definition of specificity, ‘separate competitions for men and women.’Footnote 89 Given this blanket protection of the sex categories of sport, it is probable that the eligibility rules protecting those categories may be considered specific to sport and therefore exempt from the law under this current regime. The implications of this assumption reach beyond sport and become a human rights concern.
The enforceability of non-discrimination provisions at the domestic level is somewhat restricted by the exemption clauses often contained within domestic equality legislation that permit discrimination if it is a gender-affected activity.Footnote 90 A sport is gender-affected if the physical strength, stamina or physique of average persons of one sex or gender would put them at a disadvantage to average persons of the other sex or gender. This restriction is justified to ensure safe and fair competition and was used by the IAAF in Semenya v IAAF to contend that civil and common law legal systems offer a margin of appreciation to sport bodies when determining what is necessary and proportionate to achieve legitimate objectives.Footnote 91 The IAAF believed that no laws explicitly prevented them from excluding 46 XY DSD athletes from competing in the female category.Footnote 92
Further, the IAAF argued that they were beyond the reach of the law because domestic courts would not deem the 2018 Regulations to be in contravention with public policy.Footnote 93 Unfortunately, this may be largely true- in the context of human rights there is a general reluctance to regard sports bodies as fulfilling a public function for the purpose of imposing human rights law.Footnote 94 In the UK, whilst the courts have considered that sports bodies may be quasi or hybrid public authorities, that is, private bodies that exercise public functions, the position remains narrow.Footnote 95 To ensure that an individual can bring a cause of action against a private body, it has been debated that a level of horizontality should also be applied to interpret the UK HRA in a way that broadens its application to all law rather than just public law.Footnote 96
Relationship between sport and the law
Sports law, that is, the relationship between law and sport, is an area of great curiosity. Sport is unique because it is a powerful global commercial enterprise that influences society and culture and contributes to economic growth. Given this dominant position, the legal accountability of sports bodies and its governance receives increasing attention.Footnote 97 Some countries adopt an interventionist approach where it is considered that sport serves a public function and the state has a responsibility to regulate this area through the enforcement of legislation.Footnote 98 Proportionality and the rule of law is therefore considered essential for the regulation of sport. Rules must be in the pursuit of a legitimate aim and must not go beyond what is necessary.
In the UK, government intervention in sport is limited which impacts upon the approach of the courts. The law is cautious and mindful of the special qualities of sporting activity, perhaps an example of sport exceptionalism,Footnote 99 and the courts are often reluctant to intervene in sport matters, instead deferring to the authority of the governing body. The status of sports events and the force of the IOC and the Olympic movement perhaps contributes to this deflective approach.Footnote 100
Sport tends to prefer operating within an autonomous, self-regulatory private sphere, which falls outside the scope of government control. In the light of this autonomy, the IAAF responded in Semenya v IAAF that they are a private body immune from human rights instruments such as the UDHR and the ECHR.Footnote 101The treatment of sports bodies as private entities has given them freedom to operate under their own system of virtues, at times inconsistent with the societal or legal trends. Sport rules therefore remain untested against human rights standards.Footnote 102 Sports relationship with the law is very much a tug of war between public and private regulatory spaces. The vagueness of this space and the uncertainty surrounding the appropriate regulation of sport deepens the regulatory gap in the protection of athletes’ rights.
The sophistication of the internal regulation of sport has blurred the boundaries between formal law and normative rules of sport, leading to the emergence of transnational or global sports law.Footnote 103 Considerable attention has been paid to whether sport is operating and behaving in a global and autonomous way, thus creating a Lex Sportiva.Footnote 104 This notion has been used to describe the body of law being developed by international sports bodies and organisations, rather than by the State. A key aspect of Lex Sportiva is the resolution of sport disputes by CAS which have a binding impact upon the participation of athletes.Footnote 105
However, Lex Sportiva is a contested term and used in the wrong setting could represent a shield from legal intervention.Footnote 106 In the context of athletes’ rights, it could be argued that the idea of a Lex Sportiva enlarges the regulatory gaps in the protection of rights because the concept reinforces a separation between private sport regulation and public law.Footnote 107 Instead, there needs to be a reimagining of the elements of Lex Sportiva, to incorporate human rights.Footnote 108
The Power of CAS
Given the aforementioned tensions between sport and law, a wider regulatory question concerns who deals with gender discrimination disputes and where athletes turn to secure the protection of their rights. Despite being the supreme arbitration body operating exclusively for sporting disputes, the Chand and Semenya cases demonstrate that CAS may not be the most appropriate location for such challenges. Since Chand v IAAF, the circumstances transcended sport much further than CAS appreciated in Semenya v IAAF, and they have escalated into a broader human rights problem. This is not simply a matter of assessing the validity of a sports rule from a medical or science perspective, neither is it solely about proving the degree of advantage enjoyed by a non-conforming athlete. The Semenya decision is problematic on a number of levels outlined above, but the overall dissatisfaction with the Panel’s judgment ultimately stems from their procedural and structural limitations to deal with the critical human rights issues. In both cases, CAS refrained from assessing the compatibility of human rights law (presented above) with the IAAF Regulations, confirming that it was not their task to deal with those issues, but instead a matter for the courts.Footnote 109 This is unsurprising because it does not necessarily have the expertise or capacity to deal with human rights breaches.
Arbitration is often a preferred method of resolution because it is considered quicker and more flexible, inexpensive, kept within the family of sport and with relevant expertise on sport matters.Footnote 110 Indeed, CAS is very competent and successful at hearing sport disputes by using legal tools to assess the sports rule. However, these benefits are not always substantiated because CAS is a sports arbitration panel, rather than a law court with no formal doctrine of precedent binding it to previous decisions and with limited capacity to challenge the lawfulness of a rule.Footnote 111 Furthermore, arbitration only affects the parties involved, it does not contribute to the progression of the law, and the panel has limited human rights expertise.Footnote 112 By keeping gender discrimination disputes in arbitration, further reaching matters are not being addressed by an appropriate sport system. Gender rules therefore continue to evolve and unfairly exclude athletes, arguably without any scientific rigour or peer review.Footnote 113
It could be argued that CAS, as an establishment in the sport realm, is contributing to the human rights abuses by providing a legal shield for these gender eligibility regulations, whilst at the same time raising critical concerns about their implementation and whilst deferring to the authority of the courts to address human rights issues.Footnote 114
Another drawback to the use of CAS for human rights matters, is the implication of forced arbitration.Footnote 115 The work of professional athletes is unique and different to any other industry. In order to be an athlete, they subscribe to a complex contractual relationship and are bound by regulations and rules that are specific to sport and often not in accordance with law. Within those terms, athletes are frequently forced to agree to the exclusive web of CAS authority for dispute resolution. As we have seen, sports bodies prefer matters to be dealt with internally away from the law.Footnote 116 Consent to arbitration should be free and unequivocal which is not always the case in sport contracts. Athletes almost give up their legal rights under the operation of CAS in the intricate sport regulatory framework.Footnote 117 This creates an imbalance of power between the athlete and the sport giants.
Athletes in court
The supremacy of CAS leaves a regulatory gap in the ability of an athlete to access the courts for a remedy. Indeed, history suggests that legal redress for an athlete is difficult to realise. As a condition of participation, they are bound by sport governing body rules which hinders their ability to access an effective remedy.Footnote 118 The CAS appeals process is limited and can only be made to the SFT on specific grounds under Swiss Private International Law (lack of jurisdiction, breach of procedural rules, or public policy).Footnote 119 The SFT review the decisions of CAS and assess whether its process is consistent with law, with the power to annul the CAS awards. In dismissing Semenya’s appeal, the SFT reinforced the limitations of their judicial scope.Footnote 120 Only on a few occasions has a CAS decision been overturned by the SFT. In Matuzalem Francelino da Silva v CAS Swiss Federal Tribunal,Footnote 121 the SFT displayed a willingness to review the sport system and it was held that there had been a violation of public policy and a dismissal of fundamental legal principles.
Semenya seeks to refer the case to the regional ECtHR, who have also demonstrated an openness to intervene in sport disputes as earlier stated.Footnote 122 For instance, in the case of Mutu and Pechstein v Switzerland,Footnote 123 although the Court held that the CAS proceedings were lawful and complied with the Article 6(1) ECHR, the decision was not unanimous and the judges stated that CAS proceedings must be compatible with Article 6 ECHR, in that hearings must be subject to public scrutiny. The dissenting judges criticised the lack of independence and impartiality of CAS proceedings. CAS has often been described as a ‘secretive’ court, operating with a lack of transparency at times, particularly given its historic ties to the IOC.Footnote 124 The ECtHR also emphasised that athletes are forced to either accept arbitration clauses in order to compete and earn a living, or relinquish their professional careers in sport. The importance of fair trial guarantees in sport arbitration received further attention in Ali Riza and Others v TurkeyFootnote 125 where the ECtHR expanded the reach of the Mutu and Pechstein judgment to a domestic level.Footnote 126 CAS will need to act upon these important judgments and ensure compliance in the future.Footnote 127 Despite this seemingly positive progress, no ECtHR cases have concerned sex or gender discrimination in sport, leaving the capacity of the ECtHR to effectively adjudicate such cases unproven.Footnote 128
Athletes who bring legal challenges risk their careers so that others can enjoy the same fundamental rights and freedoms that all citizens enjoy.Footnote 129 Professional footballer Jean-Marc Bosman successfully challenged the infringement of his EU rights by football transfer rules in the CJEU, but at the cost of his livelihood.Footnote 130 This is a rare example of a court confirming the position that sport cannot operate above the law and strengthening the professional status of an athlete.Footnote 131 Athletes are reportedly drowned with legal fees or threatened with suspension or exclusion from participation if they access the courts for a remedy.Footnote 132
Many of the cases are ‘clouded by the mystique of sport’ which is reflected in the inconsistencies in the domestic courts.Footnote 133 The approach of the law to defer to sport and allow sport rules to prevail over law, leaves athletes in a legal no man’s land, with limited access to a remedy. For instance, in Sagen v Vancouver Organizing Committee for the 2010 Olympic and Paralympic Winter Games (VANOC),Footnote 134 ski jumpers claimed that they were being discriminated against on the grounds of sex, in the absence of a female ski jumping event. The Canadian Court accepted that there is discrimination but did not hold VANOC in violation of any human rights provisions, therefore not wanting to bind them to discrimination laws. In a similar judicial review case, a British female canoeist argued that the London Organising Committee for the Olympic Games (LOCOG) had failed to carry out an equality impact assessment in accordance with the UK EA.Footnote 135 This was rejected by the court on the grounds that the LOCOG were a private entity. Whilst the British and Canadian courts appear to prioritise sport interests over principles of equality, what emerged from these examples was the support and power of the wider activist movement that eventually secured equality in ski jumping and canoeing.Footnote 136
With a lack of expertise in CAS, it is fair to say that the courts also lack the necessary expertise to deal with such cases. In Dr Renee Richards v United States Tennis Association (USTA),Footnote 137 a trans female athlete successfully won the right to compete in a female competition. The supreme court held that the USTA requirement to force her to undergo a genetic sex test in order to be eligible, was discriminatory and a breach of human rights law. This was a favourable outcome for Richards and prioritised the athlete’s rights, but the judgment was limited and did little to directly outline the obligations of sports governing bodies under human rights provisions.
The Human Rights Tribunal of Ontario, Canada applied a measured approach in Worley v Ontario Cycling Association.Footnote 138 Kristen Worley is a trans female Canadian cyclist who was subject to gender verification testing, under the controversial IOC Stockholm Consensus. Since she was not bound by any forced sport arbitration clauses, Worley brought a legal challenge against the Union Cycliste Internationale (UCI), Cycling Canada (CC) and Ontario Cycling Association (OCA) claiming that she was subject to sex discrimination under the gender verification policies, and this constituted a breach of the Ontario Human Rights Code. Similar to Semenya, she asserted that this was a human rights matter that went beyond sport. The tribunal concluded that the application had a ‘reasonable prospect of success’ and should not be dismissed.Footnote 139 Remarkably, the UCI, OCA and CC agreed to mediation and settled the matter in 2017 with a commitment to use objective independent scientific research in the establishment of standards and guidelines for XY female athletes.Footnote 140 This is a pivotal victory for athletes rights and their autonomy to pursue a legal claim. The only limitation was the jurisdiction of the Tribunal. The IOC and WADA were included as respondents in the original application, but they were dismissed primarily because the Tribunal lacked territorial jurisdiction over those bodies. This represents a further gap in the enforcement of human rights in the global sport system.