Abstract
In light of observed deficiencies in democratic accountability of SGBs (Freeburn, Regulating international sport, power, authority and legitimacy, 2018; Freeburn, SSRN Electron J, 2020; Geeraert, Sports Governance Observer 2015, 2015) and limitations of other forms of accountability, this article argues that there is a need for robust legal scrutiny of the decisions of SGBs when it comes to potential human rights infringements. However, the governing structures of many sports, the typically insular mechanisms of dispute resolution and the lack of ‘reach’ of human rights instruments combine to create an environment where avenues to seek redress for perceived human rights interferences by SGBs are limited. As human rights concerns proliferate in sport, the Court of Arbitration for Sport (CAS), as the current de facto ‘supreme court’ for sport, is likely to have an increasingly important role to play in considering, determining and framing human rights norms in a sporting context. Yet, it has been suggested that the CAS, as currently constituted, is ill equipped to play such a role (Krech, Int Sports Law Rev 3:66–76, 2019; Heerdt, The court of arbitration for sport: where do human rights stand?, 2019; Ruggie, FIFA and human rights, 2016). This article considers the recent litigation in Semenya v IAAF as a paradigmatic example of sporting self-regulation and potential interference with substantive human rights and evaluates whether the CAS’s approach reflects such concerns. In doing so, the article considers whether the ‘intensity of the review’ (Rivers, Cambridge Law J 65:174–207, 2006) of the IAAFs justifications for discrimination undertaken in Semenya was sufficient. It is argued that the Semenya litigation raises important wider concerns about a possible lacuna in accountability for SGBs with regard to decisions that result in human rights infringements.
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Notes
Gardiner et al. describe the constitutive rules as the combination of safety rules and those rules that determine the mechanics of play (for example, how one wins and what is permitted in doing so (Gardiner et al. 2012, p. 46).
The term ‘participant’ is used to indicate someone involved in the sport in some active way, such as players, clubs, and coaches, in contrast to those who may have an interest in the sport but are passive observers (such as fans, sponsors, and governments).
The Guardian, Revealed: 6500 migrant workers have died in Qatar since World Cup awarded. https://www.theguardian.com/global-development/2021/feb/23/revealed-migrant-worker-deaths-qatar-fifa-world-cup-2022#:~:text=Revealed%3A%206%2C500%20migrant%20workers%20have%20died%20in%20Qatar%20since%20World%20Cup%20awarded,-Guardian%20analysis%20indicates&text=More%20than%206%2C500%20migrant%20workers,ago%2C%20the%20Guardian%20can%20reveal. Accessed 3 December 2021
Gardiner et al. use this the term ‘governmental’ to describe ‘state like’ powers that are exercised by SGBs (Gardiner et al. 2012). It is acknowledged that the term ‘governmental regulatory powers’ potentially suffers from vagueness. It would also seem to grate against the judgement in Committee of the Jockey Club (ex parte Aga Khan) [1993] 1 WLR 909, which suggested the Jockey Club’s powers were not ‘governmental’ because they did not emanate from the state. Accordingly, to try and encapsulate the reality that SGBs are able to impose obligations on participants and restrict their freedoms as states do, the term ‘quasi-governmental’ powers will be used.
Freeburn (2020, p. 307). Ogus also recognises the strength of such criticisms in a wider self-regulatory context (Ogus 1995, pp. 98–99). Although it ought to be recognised that this observation only carries weight for those who value the democratic model, this article proceeds on the assumption that the majority of readers will do so.
Modahl v British Athletics Federation[2001] 1 WLR 1192 provides a good example, in a UK context at least,
Whilst the number of levels of the pyramid will change from sport to sport, a typical structure will see an International Sporting Federation (ISF) at the top and individual athletes at the bottom, with a range of layers in between. Typically, this will be (from top to bottom); Regional Sporting Federations, such as UEFA (sitting immediately below the ISF); National SGBs, such as the English FA, regional teams and clubs and then the players. For Olympic sports, the International Olympic Committee (IOC) will represent a further, higher level of the pyramid.
If the athlete/club wishes to participate in national competitions.
If the national association wishes its clubs/athletes to participate at international level.
It is acknowledged that this is a contestable statement, since elite level sport is often professional and, therefore, comparable to work. What is meant by voluntary here, is that those who want to enter the sport (which, of course, is unlikely to be at a professional level) choose to submit themselves to the private rules and regulations, obligations and restrictions that the sport entails. In this sense, voluntary is used to contrast with the situation where rules and obligations are imposed on all by virtue of being automatically subject to them (for example, the legal obligations and restrictions on individual freedoms that arise from being citizens of the legal jurisdiction in which we live).
In Mutu & Pechstein v Switzerland, App. nos. 40575/10 and 67474/10 [2018], the European Court of Human Rights acknowledged that athletes have no real choice but to agree to arbitration clauses (Para. 111 and 112) and, in Mutu, it was seemingly acknowledged that football players had no choice but to agree to standard form contracts, even if potentially in breach of domestic legislation.
The creation of the English Premier League serves as an example of clubs usurping the domination of a National SGB
For example, see the judicial references of Sir Thomas Bingham in the Court of Appeal in R. v The Disciplinary Committee of the Jockey Club ex parte The Aga Khan [1993] 1 W.L.R. 909, pp. 918 and 922; and the European Court of Human Rights in Mutu & Pechstein v Switzerland, Para 111–114; in an academic context see: Schwab (2017, pp. 7 and 18), Foster (2003, p. 16), Beloff (2012, p. 98), Geeraert (2015, pp. 13 and 17) and Freeburn (2018, pp. 28–29).
Although several years ago (and the proportion has likely increased), Thibault et al. identified 73% of Olympic ISFs as having an athlete commission/committee (Thibault et al. 2010, p. 8).
Thibault et al. (2010, p. 17).
Freeburn (2018, pp. 36–37). Although it should be acknowledged that some sports will have better democratic structures than others.
Freeburn (2020, p. 290).
A recent example in the UK being the Department for Digital, Culture, Media and Sports’ recent independent fan lead review into football governance; Fan-Led Review of Football Governance: securing the game’s future (2021).
The influence of broadcasters on sporting schedules is clear, but there is also increasing influence on the rules of the game itself; the new forms of cricket competition being an example.
Gardiner makes the point that where self-regulatory bodies have no direct link to a popular or legislative democratic mandate, what is key to preventing the arbitrary exercise (and possibly misuse) of power is the extent to which courts are able hold them to account. Gardiner et al. (2012, p. 92).
Such problems have included failing to safeguard young athletes and players from sexual predators (US Gymnastics/English FA), seeming acceptance and tolerance of bullying cultures and physical and mental mistreatment in the pursuit of sporting success (British Gymnastics—The Guardian, <https://www.theguardian.com/sport/2021/aug/18/british-gymnastics-deeply-sorry-and-must-do-better-to-prevent-abuse>. Accessed 6 December 2021; British Cycling—British Cycling ‘lacked good governance’, says report, <https://www.bbc.co.uk/sport/cycling/39811492>. Accessed 6 December 2021); failing to ensure protection of workers in preparing for and staging mega sporting events (FIFA—Reality Check 2021: a year to the 2022 World Cup. https://www.amnesty.org/en/documents/mde22/4966/2021/en/). In addition, there are ongoing concerns about endemic discrimination in sport and the roles of sports governing bodies (SGBs) in tackling this. In particular, racism and sexism have been prominent concerns in a number of sports and there remain question marks about how well SGBs are responding to these concerns (see generally Kilvington and Price 2017).
For example, the recent creation of the Centre for Sport and Human Rights. https://www.sporthumanrights.org/. Accessed 6 December 2021.
A term that will be used to describe national courts and those set up by international treaties between states (such as the Court of Justice of the European Union (CJEU) and the ECtHR). This term should be distinguished from the term private court, which will be used to describe arbitral panels that gain their jurisdiction and decision making power from private agreement between the parties subject to the dispute.
The most obvious example being Union Royale Belge des sociétés de football association ASBL v Jean-Marc Bosman C:1995:463 and the intervention of the (then) European Court of Justice with regard to freedom of movement.
n.13, para. 111 and 112.
As a logical consequence of recognising arbitration as forced (Freeburn 2020, p. 299).
A point recognised by West (2019, p. 7).
West has described the legal accountability mechanisms as a ‘phantom regime’ (West 2019, p.3). Schwab identifies several barriers and examples of individuals failing to get an effective remedy or there being a systematic failure in providing avenues for redress, (Schwab 2019, pp. 59–64). Krech also highlights some of perceived shortcomings of the CAS in applying principles surrounding discrimination in sport (Krech 2019, p.66).
Now World Athletics
Initially the case was heard before the Court of Arbitration for Sport (CAS): Mokgadi Caster Semenya v IAAF CAS 2018/O/5794 and then in the Swiss Federal Supreme Court (SFSC), Case 4A_248 / 2019 & Case 4A_398/2019. Miss Semenya currently has an application lodged before the ECtHR. Case 19034/21. https://hudoc.echr.coe.int/fre%23%7B%2522itemid%2522:%5B%2522001-210174%2522%5D%7D. Accessed 6 December 2021.
Heerdt (2019) https://www.sporthumanrights.org/library/the-court-of-arbitration-for-sport-where-do-human-rights-stand/. Accessed 6/12/2021
In other words, the whole framework for providing legal accountability.
In particular by Krech (2019).
Although it is accepted that some organisational theorists may argue this is not the only explanation of how and why organisations act as they do, it is suggested that is fundamental to the question of how organisations ought to act. Clegg et al. suggest that the concept of instrumental rationality is so intertwined with the concept of an organisation that ‘it is difficult to appreciate the phenomenon in any other terms’ (Clegg et al. 2006, p. 115).
Hereafter, the term rationality will be used as a shorthand for instrumental rationality.
Broome helpfully describes rationality as a property and suggests that you only act irrationally if you fail to reason at all about decisions, but that you may be more or less rational depending on how well you exercise your capacity to reason (Broome 2019, pp. 5 and 6).
This is a phrase used by Rivers when considering the level of scrutiny that is applied to questions of the proportionality of decisions (Rivers 2006).
n. 35
West (2019, p. 3).
Frost (2021, p. 2).
“What Are Human Rights?”, Office of the High Commissioner for Human Rights 2022.
The European Convention on Human Rights (ECHR), for example, provides mechanisms that create direct, vertical rights and remedies for individuals vis-a-vis the states that have acceded to the treaty and a supra-national court (the European Court of Human Rights) to ensure signatory states comply with their obligations and provide an ultimate avenue for individuals to seek a remedy.
Frost (2021, p. 8). In 2014, the Human Rights Council called for the development of a ‘legally binding instrument’ to regulate transnational organisations and a draft treaty (The Draft Business and Human Rights Treaty) has been developed, but not implemented.
Such as the Equality Act 2010 in a UK context.
The value of football and, specifically, football clubs to the local community was at the heart of the recent fan led review into football governance in the UK. (n. 21)
West (2019) p.7
Van Kleef (2014). In a UK judicial context, see also the decision of R v Disciplinary Committee of the Jockey Club (n. 15)
Frost (2021 p. 3).
Baddeley (2020, p. 5).
Establishing standing, cost, language, time, familiarity with the legal system, etc.
Lewis et al. (2016, pp. 37–38).
Subject to any right to appeal to a state court, a right that will be discussed below.
These being some of the key benefits of arbitration and other private dispute mechanisms as a valued, alternative mechanism for providing justice.
SFSC judgment (n. 35), para. 5.1.2.
Ibid.
Baddeley (2020, pp. 12–13). However, Baddeley also points out that there were two dissenting judgments in Mutu & Pechstein on this point, so clearly there remains some judicial concern about CAS’s independence and impartiality.
Cernic (2014, p.14).
Baddeley (2020, p. 11).
West (2019, p. 7).
West (2019, p. 7).
CAS Code, rule 27
‘According to the right and good’ (CAS Code rule 45).
Baddeley (2020, p. 10).
The only right of appeal against CAS judgments under Swiss law is (i) where the arbitral panel is improperly constituted, (ii) where it wrongly accepted or denied jurisdiction (iii) where the panel ruled beyond the claims put before it (or failed to decide one of them) (iv) where the parties are not treated equally or their right to be heard was infringed in some way (v) where the award was incompatible with [Swiss] public policy (art. 190, Federal Act on Private International Law 1987 & art. 393 Civil Procedure Code, https://www.fedlex.admin.ch/eli/cc/2010/262/en>. In the context of national governing bodies (NGBs) the position may be slightly different. For example, in England & Wales, the Arbitration Act 1996 limits grounds of appeal to state courts to jurisdictional issues (s.67) or serious procedural irregularity (s68). Although parties can refer questions of law to the courts, this right can be restricted by the arbitration agreement (s69).
Instead, it seems to require the claimant to demonstrate that there was a disregard for broadly recognised values which underpin any legal order and which are generally accepted in Switzerland (Semenya, SFSC judgment (n. 35), Para. 9.1.). This issue is returned to at section 3.8.
Gardiner et al. (2012, p. 128).
Freeburn (2020, pp. 301–303).
Freeburn has gone so far as to suggest that the right to appeal is largely ‘illusory’ (Freeburn 2020, pp. 315–316).
And yet, as has been noted above, are significantly less democratically accountable.
Cooper (2019).
Patel (2021, p. 258).
Article 14 ECHR.
For example, Article 8 of the Treaty on the Functioning of the European Union.
Schwab (2019). Although, for reasons discussed above, as far as private organisations are concerned this provides no hard legal obligations
Both through an amicus curiae submission in Semenya and a subsequent report (UN High Commissioner, 2020)
Human Rights Watch (Organization) (2020).
World Medical Association, 2019 Press Release [WWW Document]. World Medical Association. <https://www.wma.net/news-post/physician-leaders-reaffirm-opposition-to-iaaf-rules/.> Accessed 9/9/2020.
Semenya, para. 423 and 424. Whilst it is purely speculation, one wonders whether the IAAF’s reluctance may have been related to its assertion that, as a private organisation, it is not subject to IHRL instruments (IAAF, 2019).
Semenya, para. 543 and 544 (the judgement actually refers to Article 4, but should, seemingly, refer to Article 3(4) of the IAAF’s 2011 version of its constitution). The decision in Chand v IAAF also demonstrated a similar outlook (for example, see para. 449).
Semenya, para. 544
ibid.
An observation also made by Krech (2019, pp. 67–68).
In Semenya, at this first stage, the Regulations were found, prima facie, to infringe a right not to be discriminated against due to sex and/or gender and birth traits.
Rivers (2006, p. 181).
This was also the approach taken in IAAF v Chand, albeit ultimately reaching a different conclusion to Semenya.
Krech (2019).
Such as the Equality Act 2010 in the UK context.
Rivers (2006, pp. 175–176).
For example, Article 29 of the UDHR recognises that rights and freedoms may only be infringed for the ‘purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society’. In a sporting context, see National Federation of Sportspersons’ Associations and Unions (FNASS) and others v France C/ 48151/11 and 77769/13, 18.1.2018
Lane and Ingleby (2018, p. 532), Bilka-Kaufhaus GmbH v Weber von Hartz (170/84) EU:C:1986:204; [1986] E.C.R. 1607; [1986] 5 WLUK 96 (ECJ).
In the sense that they do not exist, primarily, for profit and economic reasons. That SGBs stand at the intersection of public and private functions is well recognised
Semenya, para. 556.
A point Lee observes in relation to the judgment of the European Court of Justice in EARL de Kerlast v Union régionale de coopératives agricoles (Unicopa) v Coopérative du Trieux (C-15/95) EU:C:1997:196 at [35] (Lee 2019).
Semenya, para. 285.
The author has discussed elsewhere the difficulties inherent in using terms such as 'biologically male' and 'biologically female' without making very clear the criteria used to make the categorisation and the reasons for doing so. See Cooper (2023, https://doi.org/10.3390/philosophies8020028).
Semenya, para. 554.
Section 4.1
FNASS v France (n. 97), para. 166
Under the ECHR, for example, the right against non-discrimination is not a ‘stand-alone’ right, it can only be raised as an infringement issue where there is difference in treatment in an area of life that is in some way linked to other, more fundamental rights protected by the ECHR (Davis 2016).
Both claims also seem to require acceptance of winning and the fulfilment of external goals (such as economic success) as necessary for the personal development and dignity of athletes; something that does not necessarily sit easily with key sporting values or the ideals of fair play. The issue of the scientific evidence will be returned to in section 3.4.1
Members isused loosely here to be synonymous with 'participants', i.e., in a sense that includes those who accept governance by the SGB.
In fact, the Regulations and the Explanatory Notes state that the Regulations ‘solely exist to ensure fair and meaningful competition within the female category’ (DSD Regulations, p.2, International Association of Athletics Federations, Eligibility Regulations for the Female Classification (Athletes with Differences in Sexual Development) Explanatory Notes (2019). However, it is arguable that there were several more reasons advanced by the IAAF in their submissions in Semenya, including the promotion of participation, sexual equality, health and social goods.
Terms used by the IAAF in Semenya (For example at para. 285.)
The general purposes of the IAAF that will be referred to are those set out in the version of its constitution, that was in force when the Regulations were introduced.
Emphasis added.
A term that is considered further below.
For example, see Sheridan (2003), Butcher and Scheider (2003) and Loland (2002), IFPC Website, <http://www.fairplayinternational.org/what-is-fair-play-> Accessed 19/5/2020.
See Cooper (2019).
Hereafter, the term ‘performance characteristics’ will be used.
Such a ‘soft-objectivist’ perspective is similar to the ‘meta-norm’ that Loland employs to justify his recognition of moral norms in sport (Loland 2002).
The use of equipment to gain an advantage.
The ban on full body suits in swimming serves as a good example of the principle, since the technical quality of the suit became fundamentally important in determining the winner, which was clearly not a valued, ‘relevant inequality’ by participants in swimming.
Loland (2020, p. 588).
For example, strength, speed, power, stamina and special awareness which can be improved through training.
Of course, it will be appreciated that not all athletes will have access to the same resources with regard to training or diet (for example), however, they are, in theory, factors that can be influenced by the approach and dedication of the participant.
Loland (2020, pp. 566–568).
Rawls argues that a fair and just system for allocating rights and the distribution of rewards should be determined by those who make up the society. To create the rules for such a system he hypothesises an ‘original position’ where free, rational and equal individuals would determine what justice looks like. In order to ensure against self-interest, those in the original position have no knowledge of any inherent advantages that were likely to increase an individual’s share of the resource (such as her natural, inherent abilities). On this basis, an agreement would be reached about the way to distribute the resource that was based on a just reward for the effort put in and respected the equal opportunity each individual has to benefit from the resource. Rawls (1971, pp. 11–12, 136–137).
For evidence on the 10–12% ‘male advantage’ see Handelsman et al. (2018).
Here the term is used to differentiate between typical male and typical females and not in the sense used by the Regulations and the IAAF(whose perspective would see athletes with relevant DSDs as biologically male). One of the problems in the discussions around the Regulations is the lack of clarity with the use of terms such as 'biological sex’. To be clear, the author’s interpretation is that the Regulations adopt a meaning of biological sex that is unique to athletics and for a specific purpose. It recognises that athletes with DSDs are not biologically identical to typical men but still defines such athletes as biologically male if they have the same biological characteristics as typical men ‘for all relevant [athletic] purposes’. (Semenya, para. 289). Of course, this raises the question about what the IAAF view as ‘relevant purposes’ and whether that distinction can be justified. For further comment on the problems of terminology in this context see Cooper 2023.
Significant advantage was the term used by the CAS panel in Chand, one that was highlighted by Pielke et al. (2019, p. 2). In Semenya, The Panel described its own task as ‘to examine the evidence and to consider whether the totality of that evidence provides adequate support for the claim that female athletes with a 46 XY DSD enjoy a significant performance advantage over other female athletes, which is of such magnitude as to be capable of subverting fair competition…” (Semenya, para. 538).
Chand v IAAF, CAS 2014/A/3759
i.e. a level of certainty that would be conventionally accepted in scientific circles.
Indeed, it is arguable that they are the essence of what seems to be valued, as alluded to above at p. 13.
The author has set out a more detailed explanation of a 'proportionate inequalities' sense of fair competition based on Rawls' original position elsewhere. See (Cooper, 2023).
As alluded to above, the generally accepted quantification of performance advantage seems to be that a typical male will have a 10–12% performance advantage over a typical female.
Handelsman et al. (2018).
The focus of the analysis being on the performance of those in the highest and lowest ‘tertiles’.
There has been strong criticisms of (1) the choice and use of tertiles being statistically inappropriate (Franklin et al. 2018; Menier 2018. In Semenya, Prof. Holt and Prof. Bohning also criticised the statistical analysis in Semenya.); (2) the inability of other scientists to reproduce and test the results due problems of accessing the data (Pielke et al. 2019); (3) the lack of uniformity in the sampling procedure given the number of variables (such as time of day when samples were taken) that can influence levels Prof. Dave (Semenya, para. 247–248); (4) whether athletes had given effective consent for the use of their data in the study (Prof. Blockman, Semenya para. 243); (5) about the independence of Dr Bermon, who acknowledged a conflict of interest given his employment with the IAAF and his involvement in the development of the Regulations (Semenya, para. 346).
In March 2023 World Athletics amended the DSD Regulations to incorporate all athletic events and to update the requirement on the maximum permitted level of testosterone. The Regulations now require athletes with relevant DSDs to suppress their testosterone levels below 2.5nmol/L for a minimum of 24 months. Temporary provisions have been brought in to help the transition for athletes who competed in events that were not covered by the original regulations. The new provisions came into effect on 31st March 2023. It was not made clear in the press release, the amended regulations or the World Athletic Council's decision what additional evidence has prompted the change (World Athletics, 2023).
Pielke et al. (2019).
Although even this, as a statistical claim, is disputed; see Professor Bohning in Semenya (Semenya, para. 176.)
This is a term used to encapsulate how the IAAF sees athletes with typical men and athletes with a relevant DSD, who they see as identical in all ways that matter.
Bermon (2017).
Hirschberg et al. (2020).
The Bermon study was strongly criticised for having a ‘statistically insignificant’ sample size (Semenya, para.
A point highlighted by Alexander et al. (2021, p.7)
Although it appears that Miss Semenya considered that Dr Bermon may have intimated that she ran deliberately slowly (Semenya, para. 85) It is also worth noting that in Semenya, the panel took pains to point out that it was not a case of cheating, wrongdoing and nothing should be taken as personal criticism (Semenya, para. 468).
See note [77].
Indeed, the CAS Panel itself recognised it was a ‘disputed issue of science’ (Semenya, para. 569)
Semenya, para. 556.
Clause 4(j)
Clause 4(e)
Such as historic margins of victory.
Semenya, para. 536 and 580. For example, at para. 536, the majority seem to accept that the evidence from the Bermon Papers provides empirical evidence of a significant and determinative advantage despite not articulating what significant or determinative advantage is.
In light of the evidence of performance advantage provided by the Bermon Papers, the Regulations seem to both regulate events that showed no statistically significant performance advantage (1500 m, 1 mile) and yet do not regulate events that do (pole vault, hammer throw).
For example, a mutation in the EPOR gene can lead to a 30% increase in haemoglobin levels (Dr Williams in Semenya, para. 147). This is the condition that affected Finish cross-country skier Eero Mäntyranta and seemingly helped him win several Olympic medals.
The variation in average male testosterone levels is said to be 7.7–29.4 nmol/L (Handelsman et al. 2018)
Semenya, para. 529. Although it is also acknowledged that any differences between typical males may not result in disproportionate advantage.
More fully outlined above at section 4.1
given that Monaco is a signatory state
Larson (2011, p. 239).
A more complete analysis of the full range of potential human rights harms has been undertaken by Human Rights Watch (Human Rights Watch (Organization) 2020).
Semenya, para. 601.
Ibid.
HUman Rights Watch (Organization) (2020, p. 9).
Wiesemann (2011, p. 218).
Herring and Wall (2017, p. 569).
n. 15
Blood was originally given for anti-doping purposes. It is worth noting that using data for a different purpose to that which it was originally taken without express consent seems slightly at odds with general legal norms on data protection, such as the EU’s General Data Protection Regulation.
Convention on Human Rights and Biomedicine, Article 5 < https://rm.coe.int/168007cf98> Accessed 17/12/2021
Wiesemann (2011, pp. 217–218). The right to not be informed is also alluded to in Article 10(2) of the Convention on Human Rights and Biomedicine.
Semenya, para. 605.
IAAF DSD Regulations, 2019, p. 2. para. 1.2(e)
A point made by Human Rights Watch. (p. 4) and evidence for just such a perspective is provided by the accounts of athletes therein (for example, pp. 98–99) (Human Rights Watch (Organisation) 2020).
Semenya, para. 569.
Oral contraceptives seemingly being the safest means of athletes suppressing their natural testosterone.
Semenya, para. 593.
Prof. Dave and Dr Gomez-Lobo in Semenya (para. 251 and 184, respectively).
Particularly about autonomy, consent and bodily integrity.
Semenya, para. 616–619.
Coleman (2019, p. 89).
Of course, this does not mean it cannot do so, and it is accepted that there may be a justifiable reason to single out functional testosterone in athletes with relevant DSDs. However, compelling evidence of the actual and relative performance advantage is needed.
Semenya, para. 540 and 541.
Semenya, para. 538
A point also noted by Krech (2019), pp. 74–75.
SFSC judgment (n. 35), para. 9.1 (English translation). Words in brackets added by the author
SFSC judgment (n. 35), para. 9.4 SFSC Judgment
SFSC judgment (n. 35), para. 9.6.2
Semenya, para. 616
Caster Semenya started her claim against the IAAF regarding the DSD Regulations in June 2018. Her application to the ECtHR was submitted to the ECtHR on 18th February 2021 and despite the ECtHR granting her application priority, she still awaits a decision.
Semenya, para. 303
SFSC judgment (n. 188)
For example, Alm concludes as much in his report on good governance in sport (Alm 2013, p. 32).
At least, not until the ECtHR has considered the matter.
West (2019, pp. 12–16).
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Cooper, J. Protecting human rights in sport: is the Court of Arbitration for Sport up to the task? A review of the decision in Semenya v IAAF. Int Sports Law J 23, 151–175 (2023). https://doi.org/10.1007/s40318-023-00239-4
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DOI: https://doi.org/10.1007/s40318-023-00239-4