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Gaps in the protection of athletes gender rights in sport—a regulatory riddle

Abstract

This paper examines the regulatory gaps in the protection of athletes’ gender rights in sport. The regulation of human rights in sport is increasingly being scrutinised and at the same time, the societal parameters of sex and gender identity are shifting. Together, these current developments present a regulatory riddle when determining how to balance the interests of sport with the protection of non-conforming athletes’ rights, who may not strictly fit into the binary categories of sport. Despite a strong human rights framework protecting gender rights, the complex relationship between law and sport leaves athletes in a vulnerable position, with limited accountability of sports bodies and restricted access to a legal remedy. Drawing upon existing recommendations, this paper offers original insight for resolving the riddle, such as the establishment of an anti-discrimination in sport unit to enforce human rights in sport.

Introduction

Recent years have witnessed increasing attention being afforded to the promotion of athletes’ human rights, and this has given rise to something of a regulatory riddle when determining how to guarantee those rights in the context of sport. This paper investigates the regulatory gaps in the protection of athlete’s gender rights in sport, offering solutions to tighten those gaps and remedy the current shortfalls. Modern society is undergoing significant changes in the ways in which sex and gender are perceived, discussed, recognised and organised. The topic has been catapulted to the forefront of contemporary policy debates, particularly relating to the recognition of transgender and intersex individuals. This evolution has created tensions with the traditional binary structures of sport, which have been strictly organised into male and female categories. The inclusion of non-conforming individuals such as intersex and transgender athletes, has triggered a global debate mostly framed around science and athletic advantage, but there has been significantly less discussion in the context of human rights and law. As athletes are increasingly finding their own voice and asserting their rights, the question arises how to balance the interests of sport with the protection of human rights of the athlete.

Regulating human rights abuses in sport is being widely examined in the literature.Footnote 1 This paper builds on these understandings by offering an original insight into the regulatory gaps specifically in the protection of athletes’ gender rights. Particular attention is given to two Court of Arbitration for Sport (CAS) arbitral awards, which have firmly placed sport gender rules in the spotlight. The cases brought by Dutee Chand and Caster Semenya are illustrative of how the conflict between biology, science, law, sport and identity creates a regulatory riddle for any court, sports arbitration panel or governing body tasked with resolving this issue. Whilst a strong framework of human rights provisions exists to protect individuals from gender discrimination, the intricate relationship between sport and the law has left these athletes in a vulnerable position, with little legal accountability of sport bodies and limited access to a remedy where gender rights may have been breached. It is thus timely to shift the legal lens of this inquiry and focus on the person, rather than on the institution of sport in order to effectively enforce the protection of human rights in sport.

Having identified the inherent tensions between the rights of the athlete and the autonomous powerful sports regulatory system, this paper will draw upon the existing proposals for rectifying the regulatory gaps, and make original recommendations such as the establishment of the International Anti-Discrimination in Sport Unit (IADSU). This body would be specifically designed to eradicate discrimination and enforce broader human rights in sport. Additional proposals include the enactment of an anti-discrimination in sport charter which would bind sport to human rights, the creation of an Athlete Advice Service to support athletes, and an accessible international tribunal for the resolution of human rights disputes in sport that would connect the existing sport system with the legal framework. The paper and proposals emphasise but are not confined to anti-discrimination alone; other inalienable rights are also at stake here (mentioned below) and require protection in the same way.

Gender and human rights

The term ‘sex’ refers to the biological characteristics that are determined at birth. An interchangeable term is ‘gender,’ which derives from the ongoing social consequences for the individual. Whereas sex considers what is biologically male and female, gender considers what is masculine and feminine. Gender identity has become a fluid concept that exists on a wider spectrum than simply male or female, and whereas biological and cultural sources traditionally defined an individual, self-determination of gender identity is prevailing.

Trans female or trans male individuals exist across the spectrum; they experience an incongruence between their gender identity and their assigned sex (as opposed to cisgender individuals who do not experience a mismatch between their gender identity and assigned sex). Non-binary individuals are those who identify as neither male or female, or both. Intersex is a contested term but refers to individuals with differences of sexual development (DSD), who possess variations, to changing degrees, in their biological traits relating to sexual differentiation such as genetics, hormones or genitalia. A medicalised approach was historically taken to identities which derogated from the narrow construction of man and woman. The legal recognition and legal status of non-normative individuals is slowly shifting, but there is much debate around how best to ensure inclusion within legal recognition.Footnote 2

Express references to the broader range of gender identities in human rights and anti-discrimination provisions are also currently debated and vary internationally.Footnote 3 That said, human rights are universal and should apply to all gender identities through the broad interpretation of open-ended non-discrimination clauses.Footnote 4 There exists a range of international, regional and domestic discrimination laws that seek to protect individuals from discrimination on the basis of sex and gender, and place obligations on the States that are signatories to them, to take appropriate measures to ensure the protection of human rights. At an international level, the right to equality and freedom from discrimination on the basis of sex, gender and genetics is enshrined within a wide range of international instruments, most notably the Universal Declaration of Human Rights 1948 (UDHR), the International Covenant on Civil and Political Rights 1976 (ICCPR) and the International Covenant on Economic, Social and Cultural Rights 1976 (ICESCR).Footnote 5 The promotion of non-discrimination and gender equality in sport is located in provisions such as the Convention on the Elimination of All Forms of Discrimination Against Women 1979 (CEDAW) (Article 10(g)).Footnote 6

At the regional level, the European Convention on Human Rights 1950 (ECHR) implements several principles from the UDHR, such as freedom from discrimination on any ground, including sex (see Article 14 ECHR and Protocol No. 12 ECHR). In the European Union, discrimination on the grounds of sex and gender is prohibited in several key instruments,Footnote 7 with an obligation to actively consider equality between men and women when formulating and implementing laws, regulations, administrative provisions, policies and activities.Footnote 8 Other regional human rights systems may offer different levels of protection.Footnote 9

Domestic provisions vary considerably, particularly in relation to intersex and transgender, but also form part of this framework. For instance, Article 14 of the UK Human Rights Act 1998 (HRA) prohibits discrimination in the enjoyment of human rights.Footnote 10 The UK Equality Act 2010 (EA) offers wider protection and shields individuals from discrimination based on their protected characteristics including sex and gender reassignment. The Gender Recognition Act 2004 (GRA), which was recently reviewed, affords transgender individuals the right to apply for legal recognition of their acquired gender . In the USA, a tangled and highly politicised debate has emerged following the redefinition of the meaning of sex under Title VII of the Civil Rights Act of 1964, to include gender identity. This expansion conflicts with the recent narrow interpretation of Title IX of the Education Amendments Act 1972 (Title IX) which prohibits sex discrimination in educational institutions but currently does not appear to protect trans students.Footnote 11 Title IX withdraws federal funding from educational institutions if they violate the provision, which historically provided great opportunity for minorities in sport.Footnote 12

International standards clearly confirm the value of sex and gender in the human rights framework, and the importance of ensuring that non-conforming individuals are protected from discrimination in all aspects of society. Yet, in the context of sport, there is a general uncertainty around how human rights provisions might apply to the sport gender rules, and how they are enforced upon sports bodies to ensure compliance. One of the key reasons for this ambiguity is the tendency to treat sport as an autonomous private body immune from the law. As will be shown, this creates a regulatory gap in the protection of athletes’ gender rights.

The regulation of gender in sport

The notions of sex and gender are intrinsically tied to sport because the essence of sporting activity is about testing our human differences by creating conditions which separate athletes according to these differences.Footnote 13 Sport organises competition by dividing men and women as a way of protecting that essence and remains one of the few activities in modern society where sex segregation is accepted, required and controlled. The inclusion or exclusion of athletes may therefore be viewed as legitimate when in the pursuit of this aim, even when exclusion is incompatible with principles of human rights. The view is that men have significant physiological advantages over women, and this necessitates a division. Even within the female category, whilst women have been celebrated for their strength, power and stamina, at the same time they were viewed with suspicion because these are traits that still remain associated with masculinity and, in turn, advantage in sport.Footnote 14 As the binary division is being challenged by the expansion of gender identity, a unique problem presents itself—how to determine sex for the purpose of sport and include individuals who do not meet the strict criteria to be eligible to compete in the binary female category, whilst at the same time protecting the rights of athletes and ensuring non-discrimination in sport.

In order to guard the categories in sport, international governing bodies such as the International Olympic Committee (IOC) and the International Association of Athletics Federations (IAAF, now World Athletics) have had the freedom to apply eligibility criteria to those athletes who are perceived to challenge those categories, as a means of somehow controlling femininity. Such rules have mostly been framed around physiological advantage and underpinned by contested scientific understandings of sex and gender. It will become apparent that there has been little consideration of human rights in the formation of those rules.

Most commentators agree that the historic regulation of sex and gender was humiliating and discriminatory but at that time society also shared a binary view of sex and gender. The underlying rationale was to prevent gender fraud, eliminate scandal, ensure fairness and fair performance advantage, and maintain the natural order of masculinity and femininity.Footnote 15 Yet, the methods adopted were not necessarily based upon accurate markers. The IAAF outward physical examinations of female athletes began in the 1930s and developed into the ‘peek and poke’ sex tests in the 1960s. As technology advanced, genetic and hormonal checks such as the ‘Barr body test’ were introduced at the 1968 Summer and Winter Olympic Games, which were instead based upon testing athletes for the presence of a Y chromosome, reinforcing the belief that the possession of a male Y chromosome produces superior athletic ability.Footnote 16 This method was inconsistent and unreliable because chromosomes remotely affect performance, and it was possible for varied cell patterns to naturally exist in men and women.Footnote 17 Mandatory chromosomal and genetic testing was abolished by the IAAF and the IOC in 2000, replacing it with a health focused medical examination. They expressed that chromosomal make-up needed to be considered alongside legal and psychological recognition of sex. The consequences of testing and dividing sport along only some of the factors that determine sex led to the unreasonable exclusion of individuals whose sex and gender varied and could not be strictly categorised.

Gender verification eventually replaced sex testing, and the process moved to a ‘suspicion’-based model where testing operated on an individual basis as part of an eligibility regime. The regulatory framework of the IOC and IAAF medical commissions was re-positioned to focus on levels of testosterone in athletes competing in the female category. It was believed that all females should be hormonally similar because testosterone is a primary performance factor in sport and elevated levels of testosterone can give an athlete an unfair advantage over other competitors. In a sense, this fundamental belief has implicitly continued in contemporary approaches to regulation and testing. It is important to assess the current landscape of intersex and transgender policies in order to pinpoint the shortfalls that may be impacting upon athletes’ gender rights.

Intersex Policies

In the pursuit of hormonally similar women, in 2006, the IAAF developed a Policy on Gender Verification. Officials or rival athletes could protest the eligibility of a gender ambiguous athlete, which may have resulted in mandatory treatment.Footnote 18 This policy was harmful to the integrity, dignity and rights of an athlete, as evidenced by the degrading treatment of Indian female athlete, Santhi Soundarajin.Footnote 19 The significant shortfalls in this policy were further exposed by the treatment of South African middle distance runner Caster Semenya in 2009, who was subjected to gender verification testing, restricted from competing for six months and instructed to undergo hormone treatment in the form of oral contraceptives in order to lower her testosterone levels.Footnote 20

In May 2011, the IAAF replaced their policy with the Hyperandrogenism Regulations (2011 Regulations). These focused on the degree of advantage enjoyed by female athletes with hyperandrogenism, a term used to describe females who produce excessive levels of androgen hormones.Footnote 21 The female with the condition was eligible to compete in female competition provided that her androgen levels were below the male range ( 10nmol/L). Where an athlete did not meet the necessary criteria, they would be advised to undergo medical treatment to lower their testosterone levels or were prohibited from competition. This policy was justified on the premise that that hyperandrogenic women, with enhanced testosterone levels have a significant performance advantage over non-hyperandrogenic women. However, in the absence of evidence to support that assertion, the 2011 Regulations were suspended by the Court of Arbitration for Sport (CAS) in Chand v AFI and the IAAFFootnote 22 for a period of two years (analysed below).

In September 2017, the IAAF submitted scientific evidence to establish a competitive advantage.Footnote 23 The commissioned studies were heavily criticised in the field, and it was argued that the association between genetic traits or hormones with athletic performance was far more complicated and inconclusive.Footnote 24 Making any determinations about eligibility based on limited evidence was a dangerous and discriminatory practice. Nevertheless, in March 2018, the Chand case was closed when the IAAF informed CAS that the 2011 Regulations were to be withdrawn and replaced by a new set of regulations which bypassed Chand since they did not apply to the 100m and 200m.

In 2018, the IAAF announced the implementation of the Eligibility Regulations for the Female Classification (Athletes with Differences of Sex Development (DSD)) (2018 Regulations). The 2018 Regulations required ‘biologically male’ athletes with 46 XY DSD, who have a natural testosterone level exceeding the revised threshold of 5nmol/l, which have a material androgenising effect, to reduce their level to within what they describe as the normal female range (below 5nmol/l), through hormone treatment. Athletes were required to maintain that reduced level for at least six months, as a condition of participation in eight restricted events between 400m and a mile. Athletes who did not meet the criteria and who did not wish to undergo treatment were invited to compete in non-restricted female events or male competitions.

The overall approach to intersex policies seems to be exclusionary and focused on the scientific basis of performance advantage, with little concern for the legal standards of human rights. The 2018 Regulations were challenged in Semenya v IAAFFootnote 25 and have ignited a universal debate about gender and sport (analysed below).

Trans athlete policies

The participation of trans athletes in sport is explored in depth elsewhere but the outcome of the Semenya case has significant implications for both intersex and trans athlete sport policies.Footnote 26 Both policies have been approached in a similar way, often intertangled and lacking accurate distinction between the two identities. The first trans athlete policy was introduced by the IOC in 2004. The Stockholm Consensus on Sex Reassignment in Sport negatively influenced policy making in the field, detailing that in order to be eligible for participation post puberty, the athlete must have completed surgical internal and external anatomical changes, legal recognition of their assigned sex and hormonal therapy for at least two years to reduce any gender-related advantages. The policy faced several criticisms around its medical requirements, lack of evidence, transphobic connotations, exclusionary nature and legal inconsistencies.Footnote 27

Acknowledging the significant deficiencies in the Stockholm Consensus, the IOC Medical Commission updated the policy in 2015.Footnote 28 Trans male athletes were eligible to compete in the male category without restriction. Trans female athletes were eligible to compete if they had declared that their gender identity is female for a minimum of four years; if their testosterone levels remained below 10nmol/L for at least twelve months prior to competition; and if they agreed to monitoring by testing. The policy moved away from the mandatory requirement for surgery and hormone treatment but what remained uncertain was the use of testosterone as a marker for athletic performance, and the 10nmol/L threshold as per the 2011 Hyperandrogenism Regulations. Plans to introduce new guidelines have been stalled because of the lack of scientific consensus.Footnote 29

The Semenya case initiated a momentous review of trans athlete eligibility rules by sports bodies. The IAAF re-aligned their trans athleterules with the 2018 DSD Regulations and introduced the Eligibility Regulations for Transgender Athletes in 2019.Footnote 30 The trans female athlete must provide a declaration that her gender identity is female; must demonstrate that testosterone levels are less than 5 nmol/L for at least twelve months and must maintain that for as long as she wishes to complete in the female category. Following a meeting on trans athlete eligibility, invited experts agreed that international federations should design sport-specific gender rules that are ‘living documents’ and that are consistent with the latest scientific knowledge.Footnote 31 Sport bodies seem to be given some flexibility by the IAAF and the IOC in their use of testosterone as the basis for the policy.Footnote 32 It was accepted that more research is needed on this issue and should be encouraged by sports federations. Consistent with this recommendation, World Rugby was one of the first international federations to convene a multidisciplinary working group in 2020, tasked with producing a rugby-specific trans athlete guideline.Footnote 33

Overall, as the progression of intersex policies remain contentious and subject to the outcome of the Semenya challenge, trans athlete policies are developing, with sports bodies attempting to formulate sport-specific rules for the participation of trans athletes. However, there remains a clear struggle to fairly balance the interests of sport with the rights of the athlete. The rules are centred around the scientific aspects of performance and advantage and fail to address adherence to human rights provisions in the construction and application of eligibility rules. For instance, despite World Rugby’s progressive and open consultation process, in October 2020 they announced new guidelines that ban transwomen from competing in contact rugby at the international level.Footnote 34 Although the policing of sex and gender long existed as a legitimate condition of participation, there is a radical shift in the attitudes towards sex and gender identity with growing support for athletes who are being marginalised on the basis of their traits and who seek to challenge such treatment. Chand and Semenya are representative of that revolution, and they have altered the path of the regulation of sex and gender in sport by exposing the regulatory gaps in this field.

Challenges to the regulations

Chand and Semenya brought their cases before CAS, challenging the scientific basis of the regulations and their discriminatory impact. A close analysis of the cases is beneficial to this discussion because they reveal the significant scientific shortfalls in the regulations which impact upon the legal protection of athletes’ gender rights. The cases also emphasise the incompatibility of the regulations with human rights standards, and an inability to deal with this in the current sport framework.

From a sport perspective, the crux of this issue is scientific—identifying how sex is determined in sport, whether testosterone is a primary marker for athletic performance, whether the testosterone levels of non-conforming athletes impact on the body in the same way as men, whether those elevated testosterone levels give them an unfair advantage over ‘normal’ female athletes and whether that justifies their exclusion from the restricted female events. For CAS, the validity of the rules rests upon whether they are discriminatory, necessary, reasonable and proportionate. From a legal perspective however, these issues go beyond sport and instead concerns compliance with human rights and accountability of sports bodies.

Chand

In 2014, Indian female 100m  and 200m  sprinter Dutee Chand was prohibited from international competition after hormone testing reportedly revealed that her body produced excessive natural levels of testosterone, which was unacceptable according to the IAAF 2011 Regulations (above). Chand refused medical treatment to help make her eligible and challenged her ban before CAS.

Chand argued that the 2011 Regulations unlawfully discriminated against some female athletes on the basis of a natural physical characteristic and sex, since no testosterone limit applied to male athletes in the same way. The IAAF accepted that the 2011 Regulations were prima facie discriminatory being that they were a sex-based eligibility rule.Footnote 35 CAS agreed and reinforced that consistent, with legal standards, the responsibility fell on the IAAF to prove that the 2011 Regulations were nevertheless justified and necessary for the purpose of maintaining a level playing field.

Secondly, Chand submitted that the Regulations were factually flawed and unsupported by the ‘best available science’Footnote 36 ultimately about the impact of natural endogenous testosterone on the performance advantage of a hyperandrogenic female athlete. The IAAF strongly rejected these arguments, asserting that testosterone is a significant determinant of athletic performance and testosterone levels are the ‘best discriminating factor’ in explaining the performance differences between male and female athletes.Footnote 37 With such contrasting interpretations of relevant scientific evidence and data, CAS concluded that there is a scientific basis for the use of testosterone as a marker for male and female difference in the Regulations and the IAAF could continue to rely on it. This matter continues to be the subject of scientific debate in the literature.Footnote 38

Thirdly, Chand submitted that the Regulations were disproportionate and instead resulted in a number of detrimental effects such as stigmatisation, damage to self-esteem, a lack of informed consent and/or guarantee of confidentiality, and concerns around the long-term effects of corrective medical procedures.Footnote 39 The IAAF advanced that the Regulations were based upon existing recognised medical guidelines that protected the health of affected athletes. They insisted that the restriction was necessary and proportionate to maintain the level playing field and the categories of sport.Footnote 40 CAS agreed that sport should be separated into male and female categories to maintain fairness and were therefore satisfied that the rules intended to pursue a legitimate objective. However, it concluded that there was insufficient quantitative evidence about the degree of the advantage enjoyed by a female athlete with hyperandrogenism over a non-hyperandrogenic female to justify exclusion.Footnote 41

Without sufficient proof that the 2011 Regulations were necessary and proportionate for the purpose of pursuing the legitimate objective of organising competitive female athletics to ensure fairness in competition, CAS suspended the 2011 Regulations and Chand was once again permitted to compete.

Semenya

Following the introduction of the IAAF 2018 Regulations, Semenya and Athletics South Africa (ASA) (the claimants) filed arbitration proceedings, challenging the validity of the 2018 Regulations on both legal and scientific grounds, since they would once again apply to Semenya.Footnote 42 The case builds upon the issues raised in Chand v IAAF but went further and uncovered key deficiencies in the protection of athletes’ rights.

Whereas in Chand v IAAF the IAAF accepted that their 2011 Regulations were prima facie discriminatory, they disagreed that there was any improper discrimination here.Footnote 43 The IAAF asserted that 46 XY DSD athletes were biologically male and fundamentally different to biological women in the one trait that they considered to be the key sex difference in sport performance (testosterone), which therefore justifies the division between men and women. Semenya and the ASA claimed that the 2018 Regulations discriminated against certain women on the basis of sex, gender and genetics, and infringed a number of other constitutional rights such as privacy and bodily integrity.Footnote 44 CAS ruled that the 2018 Regulations were discriminatory, but it needed to be determined whether that discrimination was necessary, reasonable and proportionate to justify it.

The claimants secondly argued that the 2018 Regulations were not necessary because the scientific basis for differential treatment lacked transparency and was flawed and unreliable with significant errors.Footnote 45 The IAAF responded that they were based on a ‘strong scientific, legal and ethical foundation’ with sound endocrinological principles.Footnote 46 CAS accepted some of the shortfalls in the IAAF studies, but supported their findings that affected athletes have elevated levels of testosterone in the male range, and this results in a significantly enhanced performance advantage over non DSD female athletes.Footnote 47

Even if necessity was established, the claimants purported that the 2018 Regulations were not reasonable, because they were not rationally connected to the objective of ensuring fair competition in the female category. CAS concluded that the 2018 Regulations were reasonable for the same reasons that it determined they were necessary.Footnote 48

The claimants submitted that the 2018 Regulations were disproportionate and would cause severe harm because the intrusive medical assessments were likely to impact upon the physical and psychological health of the athletes.Footnote 49 The IAAF maintained that they respect gender identity and dignity of affected athletes while at the same time protecting the right of female athletes to fair and meaningful competition. They argued that there was a recognised ‘standard of care’ for individuals with this condition when offering confidential hormone treatment, with limited and reversible side effects.Footnote 50 CAS concluded that the medical assessment and the use of oral contraceptive was not in itself disproportionate to the aim.Footnote 51 Whilst accepting the side effects of the treatment, CAS held that this did not outweigh the need to impose the DSD Regulations in order to maintain fairness in competition.Footnote 52

One of the pertinent aspects of the case was the reliance on using biology to determine sex. The IAAF claimed that in the context of sport, biology forms part of its essence, and there are instances when ‘biology has to trump identity,’Footnote 53 firmly submitting that legal sex and gender identity cannot determine eligibility in sport because they have no bearing on athletic performance.Footnote 54 They distinguished their position in Chand v IAAF which concerned biological females and how their bodies respond to testosterone. Instead, the 2018 Regulations related to the performance advantage of biological males.Footnote 55 CAS agreed that the performance difference between men and women was ‘insurmountable’ and once again supported the category divisions in sport.Footnote 56 It accepted however that this biological division did not easily align with the diversity of sex characteristics that exist in natural human biology, or with the evolution of the law governing legal sex which are no longer simply male or female.Footnote 57 Although CAS clearly stated that Semenya is a woman, it held that biology rather than legal sex or gender identity must determine eligibility in sport, and the 2018 Regulations were reasonable and proportionate on their face.

However, CAS expressed ‘grave concerns’ about the future application of the 2018 Regulations, particularly the ability of an athlete to consistently maintain their testosterone levels within the 5nmol/l threshold because of the risk of inadvertent fluctuations.Footnote 58 The Panel also raised concerns about the side effects of the medication, the determination of the restricted events and the confidentiality of the athletes. CAS affirmed that the proportionately of the 2018 Regulations could therefore be compromised in the future if they cannot be fairly applied in practice. In summary, the Panel concluded that the 2018 Regulations were discriminatory, but were a necessary, reasonable and proportionate means of achieving the aim of protecting female athletes in certain events.Footnote 59 In making this decision, CAS addressed key features of the Chand v IAAF decision, but emphasised that they were not bound by that decision.Footnote 60

Following the judgement, Semenya appealed to the Swiss Federal Supreme Court (SFT), who granted a temporary suspension of the 2018 Regulations, which enabled Semenya to compete without restriction. However, in July 2019 the temporary suspension was overturned by a tribunal in the same court after finding that the ‘high threshold’ for any suspension had not been fulfilled.Footnote 61 In August 2020, the SFT dismissed the appeal, holding that the CAS decision could not be challenged since it was deemed compatible with principles of Swiss public order.Footnote 62 Semenya seeks to appeal against the 2018 Regulations to the European Court of Human Rights (ECtHR).Footnote 63

The CAS decision was based upon an incorrect understanding that the science was mainly conclusive, when in fact the 2018 Regulations are based upon largely contested science, which lacks independent consultation.Footnote 64 Furthermore, whilst the objective of the sport rules is a legitimate one, it is inconsistently applied. There are many natural biological traits and genetic mutations that endow athletes with favourable bodies for athletic performance, but they are not subject to the same restrictions.Footnote 65 Furthermore, intersex and hyperandrogenism is not exclusive to women yet men are not excluded from competing in sport. Treating athletes who are born female and identify as female, as biologically male seems illogical, oversimplistic and contrary to current scientific knowledge which recognises that sex exists on a spectrum.Footnote 66 CAS was contradictory by affirming that Semenya is a woman, but at the same time supporting the IAAF’s labelling of these individuals as biologically male for the purposes of the rules. It is further derogatory to suggest that DSD athletes compete as men not least because their performance is significantly below men at the same level of competition.

Whilst it is accepted that biology is a key factor for sport categorisation, the rights of the athlete should be equally valued at every stage of sport regulation, from rulemaking to dispute resolution. There was a clear failure to examine human rights in the judgement of both cases. Even if a physical advantage was conclusive and the Semenya v IAAF decision was justified, it becomes a question of what sport is willing to accept and what degree of difference we are willing to allow in sport, particularly as society shifts to recognise a broader range sex and gender.

Regulatory gaps

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.

Proposals for reform

To summarise, this analysis has identified key regulatory gaps in the protection of athletes’ gender rights in sport. Despite the incompatibility of sport gender rules with human rights, there are insufficient mechanisms in place to enforce those rights upon sports bodies and hold them accountable for violations. There is an incapacity to deal with human rights issues through the internal system of sport, including CAS, and any commitments to human rights remain largely theoretical. The self-regulatory autonomous nature of sport and its tendency to hide behind the Lex Sportiva concept contributes to this problem. Athletes have little support for human rights disputes and limited access to a remedy before the courts. The ability of sport to navigate human rights in their private bubble, needs to be re-evaluated.

What makes this investigation particularly dynamic is that sex and gender differences form part of the essence of inclusion and exclusion in sporting activity, yet sex and gender are also core protected human rights. This section offers proposals to reconcile this conflict and solve the regulatory riddle that is stifling the progression of human rights protection in sport.

Whereas in previous research a ladder of regulatory proposals was offered, ranging from a less-intrusive soft measures to interventionist legal regulation of inclusion and exclusion,Footnote 141it is time to propose harder measures to overcome human rights deficiencies in sport. In the broader context of human rights abuses, a number of insightful recommendations have already been made to fill these regulatory gaps and ensure better protection of athlete's rights. Turley proposes that the status of international sports bodies is changed or enhanced under international law, which would give them legal personality and facilitate a connection to the International Court of Justice for human rights violations.Footnote 142 Turley and West explore the enactment of a multilateral treaty specifically focused on sport and human rights that would have a binding impact.Footnote 143 The following proposals draw attention to equality and non-discrimination but are not confining and recognise the range of other threatened rights that require enforcement and protection, as evidenced by the UNHRC and the UN High Commissioner for Human Rights.Footnote 144

IADSU

Supplementing the existing offerings, is the creation of an International Anti-Discrimination in Sport Unit (IADSU), who would act as a watchdog and enforcement body for the fight against discrimination in sport.Footnote 145 Similar compliance units,Footnote 146 independent centresFootnote 147 and global governance agenciesFootnote 148 have also been suggested in the literature. The idea of a body specifically designed to eradicate discrimination and enforce broader human rights in sport, is adopted from the successful World Anti-Doping Agency (WADA) model. The universal agreement to combat doping in sport has led to the creation of agreed uniform standards across sport which have been described as a body of soft international law (David 2017 p. 63). As with WADA, it is proposed that the IADSU also functions by voluntary agreement to facilitate a common approach. Its legal enforceability derives from the universal agreement to commit to the WADA Code. Ensuring this universal commitment to the fight against discrimination maybe difficult to achieve but given the current pressures for sport bodies to review their gender policies, it would be prudent to commit to this movement.

The IADSU would comprise of independent experts from a range of areas including law, ethics, science, medicine and sport, to ensure a multidisciplinary approach to human difference in sport. In previous research examining inclusion and exclusion in competitive sport across sex, gender, disability and race, it was recommended that the key objective of the IADSU would be to harmonise sport eligibility rules by conducting the sports audit across sports.Footnote 149 Progressing this idea in the context of gender discrimination, the IADSU could audit gender sports rules to ensure compliance with the human rights framework outlined earlier. Sports organisations could, by agreement, sign up to the IADSU anti-discrimination code of conduct which might include some key obligations;

  1. 1.

    Embed the broad range of human rights within rules and justify the rules against legal standards, applying due diligence

  2. 2.

    Conduct a risk assessment of the sports gender rules to identity sport-specific issues

  3. 3.

    Draw upon current independent scientific, medical and legal knowledge in the development of the rule

  4. 4.

    Assess the proportionality of the rules to ensure fair and consistent application

  5. 5.

    Regularly review the rule to ensure that human differences are accurately interpreted

In order to close the gaps, the IADSU would have powers to investigate cases of discrimination, enforce amendments to rules and impose penalties on sports bodies for non-compliance with the code of conduct, such as restricting inclusion to major sporting events.

Another important function of the IADSU would be to offer education and training to sports bodies and athletes, about inclusion and exclusion and about physical and non-physical human differences. Training could be offered to educate groups about the key human rights provisions that exist to protect athletes.

Anti- discrimination in sport charter

What makes the WADA model so persuasive is its support and endorsement from governments and the law.Footnote 150 The UNESCO International Convention against Doping in Sport 2005 contains general provisions by which the States commit themselves to take steps to support the principles and regime of the WADA Code. Furthermore, it reconfirms the commitment of governments to fund half of the WADA budget. Since various branches of the UN such as UNESCO and the UNHRC are also committed to anti-discrimination, it would be reasonable to suggest that they support the IADSU through the enactment of an anti-discrimination in sport charter that would bind sport to human rights and establish a necessary legal framework. This could be underpinned by the relevant principles of the UDHR outlined above. An anti-discrimination in sport charter could endorse international harmonisation of sports rules, policies and measures by setting a range of common standards that requires states and sports bodies to adopt measures to eliminate discrimination and recognise broader human rights. Signatories could give effect to thecharter by adopting legislation, policies or mechanisms that demonstrate a commitment to protecting the rights of the athlete. In order to be effective, such a charter would need to have a binding effect on the parties.

It is accepted that the IADSU may be perceived as ambitious as it is likely to require a significant amount of investment and time from sports bodies, governments and international organisations. WADA continue to experience several global challenges in their fight against doping in sport and the regime continually conflicts with the rights of the athlete.Footnote 151 However, it has been established throughout that equality and non-discrimination are fundamental principles of human rights that deserve explicit compliance in the context of sport.

Athlete Advice Service (AAS)

The cases examined reveal that athletes face barriers to accessing a remedy for human rights breaches and there is a lack of support to guide them through the intricacies of sport and the law. That said, many of the athletes receive financial and moral support from non-profit organisations who advocate for equality in sport. Despite losing their legal or CAS challenge, it tends to be the power of the movement that prompts change and parity in the sport. Sport bodies and the wider sport community need to focus on fostering relationships and connections between athletes and equality organisations within their sports to ensure that athletes feel supported and have the information and expertise to navigate between legal, media and political strategy.Footnote 152 An athlete ombudsmanFootnote 153 or an Athlete Advice Service (AAS) may be an appropriate forum for the development of this communication. In 2017, Baroness Tanni Grey-Thompson conducted a seminal review of duty of care in sport.Footnote 154 One of the recommendations was the establishment of a Sports Ombudsman, which would provide athletes with a voice and ensure the accountability of sport governing bodies for the treatment of people involved in sport, including athletes. Anderson and Partington suggest that such a body should be independent, athlete-centred and accessible with investigatory powers for accountability. Consistent with this paper, in their evaluation of existing ombudsman models across sport, the authors conclude that any service seeking to protect athletes, require hard powers to firmly bind sport.Footnote 155

Indeed, there are now many organisations championing the protection of human rights in sport such as the World Players Association who, amongst other objectives, seek to protect organised players and athletes across professional global sports from human rights breaches through the enactment of the Universal Declaration of Player Rights 2017. The Centre for Sport and Human Rights (CSHR) and The Sport and Rights Alliance (SRA) work to align sport with the fundamental principles of human rights. These are just a few of the many bodies who are promoting change and providing a platform for athletes to assert their rights.

Human rights tribunal for sport

Neither CAS nor the law courts have necessarily dealt with athlete gender discrimination in a satisfactory manner. Given the increasing commentary about CAS by the ECtHR, there is a clear demand for a stronger judicial process for dealing with sport and human rights. Yet it is not clear what this might look like or how achievable such reform might be. Cernic evaluates the existing framework within which CAS operates and proposes ways to re-position CAS within the legal system to guarantee compliance with human rights.Footnote 156 West visualises a Court of Arbitration for Sport and Human Rights (CASHR), which would be available to any individual victim, with appeals referred to the ECtHR.Footnote 157 Carving out a space dedicated to resolving human rights disputes is worthwhile and requires further research. Since the actions of CAS may be contributing to the human rights harm as earlier stated, an independent tribunal could be a preferred option. Following the recent recommendations made by the UNHRC to States to ensure that sport-governing bodies respect human rights and are accountable for violations,Footnote 158 it strikes me that the UNHRC have a crucial role to play in developing an international, independent and accessible tribunal for the resolution of human rights disputes in sport that would connect the existing sport system with the legal framework. These suggestions are ambitious and may not be easy or realistic in the current climate, but they are necessary if the gaps in the protection of athletes’ gender rights are to be repaired.

Conclusion

There is a growing dissatisfaction with the inadequate protection of athletes’ human rights in sport. This paper has explored the regulatory gaps that are causing these failures in the context of gender. Not only do sex and gender differences form the essence of inclusion and exclusion in sporting activity, but they also go to the heart of human rights, with a strong human rights framework in place to protect the evolving spectrum of gender identity. This has created a regulatory riddle in the balancing of sport interests with athletes’ rights.

The Chand and Semenya cases outlined the key scientific debate that has troubled sport when dealing with the inclusion or exclusion of non-conforming identities in sport. Against the background of the contested science, this paper has shifted the discussion into the domain of human rights law, reinforcing the notion that these matters go beyond sport and concern the broader rights of the athlete. Yet, neither science nor law is clear on this matter and despite some positive commitments by sports bodies, there are regulatory gaps in the compatibility and enforceability of human rights provisions in sport, with an incapacity to internally manage human rights issues, and with minimal support for athletes when seeking access to a legal remedy when their rights have been violated.

Solving the regulatory riddle by introducing measures to reconcile sport with human rights is ambitious. Supplementing the existing proposals, this paper has made key recommendations to ensure a firm enforcement of human rights in sport and support athletes who wish to assert their rights. There are limitations to these suggestions, and it is unlikely that the IADSU would be established without a significant cultural and structural shift from within sport. Currently, the view that non-normative athletes should be permitted to compete in sport, is not universal, and whilst the status quo remains divided, a universal agreement to commit to anti-discrimination will be difficult to achieve. However, there is increasing pressure on sport to adapt and recognise the broader societal shifts in gender identity. The position is moving forward but sports bodies have an active duty to consistently engage with human rights or face consequences. The law and government organisations have a crucial role to play in directly enforcing those rights by scrutinising all aspects of the sport regulatory system. It is time for sports rights and human rights to operate alongside, not against each other in the pursuit of a balance between inclusion and exclusion in sport.

Declarations

Competing interests

The author declares that they have no known conflict of interests or competing interests.

Notes

  1. West (2019), Schwab (2018), Turley (2016).

  2. Council of Europe (2015) Human Rights and Intersex People, Council of Europe Commissioner for Human Rights, https://rm.coe.int/human-rights-and-intersex-people-issue-paper-published-by-the-council-/16806da5d4 (Accessed 10 September 2020); FRA (European Union Agency for Fundamental Rights) (2015) The Fundamental Rights Situation of Intersex People, FRA, https://fra.europa.eu/sites/default/files/fra-2015-focus-04-intersex.pdf (Accessed 10 September 2020); Scherpe et al. (2018) and Garland and Travis (2018).

  3. FRA 2015.

  4. Council of Europe (2015).

  5. See also The UNESCO (United Nations Educational, Scientific and Cultural Organisation) Universal Declaration on the Human Genome and Human Rights 1997; UNESCO International Declaration on Human Genetic Data 2003.

  6. See also The Beijing Declaration and Platform for Action 1995; The Brighton plus Helsinki 2014 Declaration on Women and Sport; The UNESCO International Charter of Physical Education, Physical Activity and Sport (2015 revised); The Yogyakarta Principles Plus 10 (supplementing the Yogyakarta Principles 2006).

  7. Treaty on European Union (TEU) (Article 2); Treaty on the Functioning of the European Union (TFEU) (Article 8); The Charter of Fundamental Rights of the EU 2000; Recast Directive 2006/54/EC.

  8. TFEU (Article 10).

  9. West (2019, p. 9).

  10. Not a free-standing right, see Protocol No. 12 ECHR.

  11. Levenson and Vigdor (2020) Inclusion of Transgender Student Athletes Violates Title IX, Trump Administration Says, New York Times 29 May, https://www.nytimes.com/2020/05/29/us/connecticut-transgender-student-athletes.html (Accessed 10 September 2020).

  12. Williams (2013).

  13. Patel (2015).

  14. Olsen-Acre (2007, p. 210).

  15. Cooper (2010, p. 251).

  16. Tucker and Collins (2009, p. 148).

  17. Gooren and Bunck (2004, p. 425).

  18. International Association of Athletics Federations (2006) Policy on Gender Verification, http://bolandathletics.com/sitefiles/wp-content/uploads/2015/11/IAAF-Gender-Verification-Policy.pdf (Accessed 10 September 2020).

  19. Mitra In: Hargreaves and Anderson 2014, p. 384.

  20. CAS 2018/O/5794 Mokgadi Caster Semenya v. The International Association of Athletics Federation (IAAF) and CAS 2018/O/5798 Athletics South Africa v. The International Association of Athletics Federation (IAAF), para 77.

  21. World Athletics (2011) Press Release. IAAF to introduce eligibility rules for females with hyperandrogenism, World Athletics, 12 April https://www.worldathletics.org/news/iaaf-news/iaaf-to-introduce-eligibility-rules-for-femal-1 (Accessed 10 September 2020).

  22. CAS 2014/A/3759 Dutee Chand v. Athletics Federation of India (AFI) and The International Association of Athletics Federation (IAAF).

  23. World Athletics (2017) Press Release. Levelling the playing field in female sport: new research published in the British Journal of Sports Medicine, World Athletics, 3 July https://www.worldathletics.org/news/press-release/hyperandrogenism-research (Accessed 10 September 2020).

  24. Sönksen et al. (2018).

  25. CAS 2018/O/5794 Mokgadi Caster Semenya v. The International Association of Athletics Federation (IAAF) and CAS 2018/O/5798 Athletics South Africa v. The International Association of Athletics Federation (IAAF).

  26. Jones et al. 2017; BBC One (2019) The Trans Woman Athlete Dispute with Martina Navratilova, BBC One Documentary, 26 June; Love In: Hargreaves and Anderson 2014, p. 376.

  27. Cavanagh and Sykes (2006, p. 92).

  28. International Olympic Committee (IOC) (2015) IOC Consensus Meeting on Sex Reassignment and Hyperandrogenism https://stillmed.olympic.org/Documents/Commissions_PDFfiles/Medical_commission/2015-11_ioc_consensus_meeting_on_sex_reassignment_and_hyperandrogenism-en.pdf (Accessed 10 August 2020).

  29. Ingle S (2019) IOC delays new transgender guidelines after scientists fail to agree, The Guardian, 24 September https://www.theguardian.com/sport/2019/sep/24/ioc-delays-new-transgender-guidelines-2020-olympics?CMP=Share_iOSApp_Other (Accessed 10 September 2020).

  30. World Athletics (2019) The World Athletics Eligibility Regulations for Transgender Athletes (Transgender Regulations) http://www.athletics.org.tw/Upload/Web_Page/WA/Eligibility%20Regulations%20for%20Transgender%20Athletes,%20.pdf (Accessed 10 December 2020).

  31. World Athletics (2019) Report of the International Meeting on Transgender Eligibility in Competitive Sports, World Athletics https://www.worldathletics.org/news/press-release/international-federations-rules-transgender-a (Accessed 10 September 2020).

  32. Pavitt M (2020) IOC confirms existing guidelines on transgender athlete eligibility to remain for Tokyo 2020 Inside the Games, 3 March https://www.insidethegames.biz/articles/1091417/ioc-guidelines-transgender-tokyo-2020 (Accessed 15 July 2020).

  33. World Rugby (2020) Press Release: Landmark World Rugby Transgender Workshop Important Step Towards Appropriate Rugby-Specific Policy, World Rugby, 27 February https://www.world.rugby/news/563437?lang=en (Accessed 15 July 2020).

  34. World Rugby (2020) World Rugby approves updated transgender participation guidelines, World Rugby, 9 October https://www.world.rugby/news/591776/world-rugby-approves-updated-transgender-participation-guidelines (Accessed 9 October 2020).

  35. CAS 2014/A/3759 Dutee Chand v. Athletics Federation of India (AFI) and The International Association of Athletics Federation (IAAF), para 117.

  36. Id, para 120.

  37. Id, para 128.

  38. Franklin et al. (2018).

  39. CAS 2014/A/3759 Dutee Chand v. Athletics Federation of India (AFI) and The International Association of Athletics Federation (IAAF), para 231.

  40. Id, para 244.

  41. Id, para 522; 535.

  42. CAS 2018/O/5794 Mokgadi Caster Semenya v. The International Association of Athletics Federation (IAAF) and CAS 2018/O/5798 Athletics South Africa v. The International Association of Athletics Federation (IAAF).

  43. Id, para 285.

  44. Id, para 207; 234.

  45. Id, para 55.

  46. Id, para 286; 389

  47. Id, para 535.

  48. Id, para 583.

  49. Id, para 594.

  50. Id, para 334.

  51. Id, para 599.

  52. Id.

  53. Id, para 354; 289.

  54. Id, para 289; 297.

  55. Id, para 292.

  56. Id, para 456.

  57. Id, para 458.

  58. Id, para 615; 620.

  59. Id, para 626.

  60. Id, para 471.

  61. MacInnes (2019) Caster Semenya blocked from competing at world championships, The Guardian, 30 July https://www.theguardian.com/sport/2019/jul/30/caster-semenya-blocked-defending-800-metres-title-athletics-world-championships (Accessed 30 July 2020).

  62. Swiss Federal Supreme Court (2020) Judgment of DSD Regulations: Caster Semenya's appeal against the decision of the Court of Arbitration for Sport dismissed, 25August2020 (4A_248/2019, 4A_398/2019) https://www.bger.ch/files/live/sites/bger/files/pdf/en/4A_248_2019_yyyy_mm_dd_T_e_18_18_10.pdf (Accessed 30 August 2020).

  63. BBC (2020) Caster Semenya takes appeal to European Court of Human Rights, 17 November https://www.bbc.co.uk/sport/athletics/54973244 (Accessed 17 November 2020).

  64. Kidd (2018). Savulescu (2019) Ten ethical flaws in the Caster Semenya decision on intersex in sport, The Conversation, 9 May https://theconversation.com/ten-ethical-flaws-in-the-caster-semenya-decision-on-intersex-in-sport-116448 (Accessed 10 September 2020).

  65. CAS 2018/O/5794 Mokgadi Caster Semenya v. The International Association of Athletics Federation (IAAF) and CAS 2018/O/5798 Athletics South Africa v. The International Association of Athletics Federation (IAAF), para 145.

  66. Id, para 158.

  67. West (2019), Schwab (2018), Harmon (2020); Institute for Human Rights and Business (2017) Mega Sporting Events Platform for Human Rights, Sporting Chance White Paper 2.4: Remedy Mechanisms for Human Rights in the Sports Context https://www.ihrb.org/uploads/reports/MSE_Platform%2C_Remedy_Mechanisms_for_Human_Rights_in_the_Sports_Context%2C_Jan-2017.pdf (Accessed 20 September 2020); United Nations Human Rights Council (2020) Report of the United Nations High Commissioner for Human Rights, Intersection of race and gender discrimination in sport, A/HRC/44/26 United Nations High Commissioner for Human Rights https://www.ohchr.org/EN/HRBodies/HRC/RegularSessions/Session44/_layouts/15/WopiFrame.aspx?sourcedoc=/EN/HRBodies/HRC/RegularSessions/Session44/Documents/A_HRC_44_26_AEV.docx&action=default&DefaultItemOpen=1 (Accessed 20 September 2020).

  68. CAS 2018/O/5794 Mokgadi Caster Semenya v. The International Association of Athletics Federation (IAAF) and CAS 2018/O/5798 Athletics South Africa v. The International Association of Athletics Federation (IAAF), para 2; CAS 2014/A/3759 Dutee Chand v. Athletics Federation of India (AFI) and The International Association of Athletics Federation (IAAF), para 112.

  69. CAS 2018/O/5794 Mokgadi Caster Semenya v. The International Association of Athletics Federation (IAAF) and CAS 2018/O/5798 Athletics South Africa v. The International Association of Athletics Federation (IAAF), para 82.

  70. Cooper (2010, p. 259), Lane (2018).

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  137. Dr Renee Richards v United States Tennis Association (USTA) 93 Misc.2d 713, 400 NYS 2d 267.

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Patel, S. Gaps in the protection of athletes gender rights in sport—a regulatory riddle. Int Sports Law J 21, 257–275 (2021). https://doi.org/10.1007/s40318-021-00182-2

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Keywords

  • Human rights
  • Anti-discrimination
  • Athlete rights
  • Sport regulation
  • Accountability
  • Inclusion
  • Gender