A luta continua

On a clear and sunny Friday afternoon in July 2009, Ms Mokgadi Caster Semenya ascended to athletics greatness. On day two of the African Junior Athletics Championships, at the Stade Germain Comarmond in Bambous, Mauritius, Caster Semenya won the women’s 800m race in a time of 1:56:72. Her time was a new personal best, a championship record, a South African national record and the fastest time in the world that year. It was on this day that Caster Semenya became a South African household name and an inspiration for her country.

Almost three weeks later, on August 19, 2009, at the International Association of Athletics Federations (IAAF) World Championships in Berlin, Caster Semenya ran the women’s 800m final in emphatic style, demolishing her opposition and taking gold in a time of 1:55.45, more than two seconds faster than the silver medallist, Kenyan Janeth Jepkosgei Busienei. It was on this day that Caster Semenya, an 18 year old girl from rural Limpopo, South Africa, became a global household name. It was also on this day that Caster Semenya’s struggle officially began.

Before she had set foot onto the azure track of the Olympiastadion that night, Caster Semenya was immersed in controversy. News had broken less than three hours before her final that the IAAF had requested a gender verification test in order for her to prove herself a woman. At the time, Nick Davies, a spokesman for the IAAF, confirmed that the test was requested and described the tests necessary to determine the gender of an athlete as "an extremely complex procedure involving medics, scientists, gynaecologists and psychologists”.

Since that day in August 2009, for more than ten years, Caster Semenya has been embattled in a struggle for her basic human rights. Her struggle still continues today.

Norton Rose Fulbright South Africa Inc (NRFSA) is privileged and proud to represent Ms Mokgadi Caster Semenya and to be assisting her challenge to the legality of the IAAF’s Eligibility Regulations for the Female Classification (athletes with differences of sexual development).

Mr Greg Nott, partner at NRFSA, has been by Semenya’s side since 2009 when he assisted her, pro bono, to keep competing internationally whilst previous IAAF regulations were challenged, by Dutee Chand, the Indian 100 and 200 metre sprinter, and eventually declared invalid.

Despite the successful challenge to the previous IAAF regulations, in March 2018 the IAAF Council approved the implementation of the current regulations, which demand that certain women have to undergo aggressive and suppressive medical treatment if they wish to compete in specific athletics events.

The World Medical Association called on physicians around the world to take no part in implementing these regulations. At its council meeting in Santiago, Chile, on April 25, 2019, the World Medical Association demanded the immediate withdrawal of the regulations and stated that they “constitute a flagrant discrimination based on the genetic variation of female athletes and are contrary to international medical ethics and human rights standards”.

The United Nations have also criticised the regulations, stating in a letter to the IAAF President that "by singling out a certain group of athletes and denying them membership in the “female” category, the IAAF puts these women at risk of repercussions far beyond the inability to compete, as well as subjecting them to shame, ridicule, and intrusion upon their personal and private life. Furthermore, as stipulated in the title and throughout, the IAAF regulations appear to specifically target women. No similar regulations are reported to have been applied or been sought to be applied by the IAAF to male athletes. Natural physical and biological traits as well as social and economic factors also influence the performance of male athletes. Natural physical traits associated with above-average performance by elite male athletes are applauded and admired.”

The IAAF has argued in their assertion of the regulations that some athletes have an unfair advantage over others as a result of naturally high levels of testosterone in their bodies.

The regulations specifically target events from 400m to the mile, including 400m hurdles races, 800m, 1,500m, and combined events over the same distances.

The regulations require athletes who have levels of circulating testosterone of five nanomoles per litre or above, and who are testosterone-sensitive, to meet certain criteria to compete and remain eligible to participate in international competitions sanctioned by the IAAF. Such requirements involve the athlete lowering their blood testosterone levels and maintaining those reduced levels.

The regulations are intended to replace the previous regulations that sought to govern eligibility of females with hyperandrogenism to compete in women's competition, which were successfully challenged.

Hyperandrogenism, also referred to as androgen excess, is a medical condition characterized by excessive levels of androgens (hormones such as testosterone) in the female body and the associated effects of the elevated androgen levels.

In 2018, Semenya launched a challenge of the regulations before the Court of Arbitration for Sport (CAS). The CAS is an institution that provides services in order to facilitate the settlement of sports-related disputes through arbitration or mediation by means of procedural rules adapted to the specific needs of the sports world.

The CAS was created in 1984 and is placed under the administrative and financial authority of the International Council of Arbitration for Sport. Disputes directly or indirectly linked to sport may be submitted to the CAS. These may be disputes of a commercial nature, or of a disciplinary nature following a decision by a sports organization. In ordinary arbitration, the parties are free to agree on the law applicable to the merits of the dispute. Failing such agreement, Swiss law applies.

As part of her challenge, Semenya requested that the regulations be declared invalid with immediate effect; contending that they are discriminatory, unnecessary, unreliable and disproportionate. The IAAF contended that the regulations do not infringe any athlete’s rights, including the right to equal treatment, but instead are a justified and proportionate means of ensuring consistent treatment, and preserving fair and meaningful competition within the female classification.

On 1 May 2019, a majority of the three person CAS panel ruled against Semenya and found that the regulations are discriminatory. The majority found that, on their analysis of the evidence submitted by the parties, such discrimination is a necessary, reasonable and proportionate means of achieving the IAAF’s aim of preserving the integrity of female athletics in the restricted events.

In its 165 page award, the CAS panel expressed concerns as to the future practical application of the regulations. It noted that, while the evidence available so far has not established that those concerns negate the conclusion of prima facie proportionality, this may change in the future unless constant attention is paid to the fairness of how the regulations are implemented. In this regard, the majority referred to the following issues:

1. The difficulties in implementing the regulations in the context of a maximum permitted level of testosterone
2. The difficulty of finding concrete evidence of actual (in contrast to theoretical) significant athletic advantages as a result of testosterone levels
3. The side effects of hormonal treatment experienced by individual athletes that could, with further evidence, demonstrate the practical impossibility of compliance and, in turn, lead to a different conclusion as to the proportionality of the regulations.

The CAS panel held that it was restrained in its task, due to the strict framework of the arbitration, to solely determine whether the regulations were invalid or not. It nevertheless considered it appropriate to highlight its concerns with aspects of the regulations that arose from the submissions and evidence adduced by the parties during the CAS proceedings.

On June 29, 2019, Semenya filed an appeal to the Federal Supreme Court of Switzerland challenging the ruling against her by the CAS in favour of the IAAF. Since the CAS has its seat in Switzerland, appeals against its awards are heard by the Swiss Supreme Court. This makes the Swiss Supreme Court the world’s highest appeal court for international sports arbitration.

Following the filing of Semenya’s appeal, the Swiss Supreme Court ordered the IAAF to temporarily suspend the enforcement of the regulations. This order however, was not extended in late July following submissions made by the IAAF, which has prevented Semenya from competing internationally.

Semenya’s appeal focuses on fundamental human rights. In particular, the Swiss Supreme Court will be asked to consider whether there has been a violation of essential and widely recognized public policy values, including the prohibition against discrimination, the right to personal integrity, the right to economic freedom, and respect for human dignity. The CAS decision condones unnecessary and unwanted medical interventions on females despite the lack of available treatment protocols and the unknown consequences associated with such interventions.

The Swiss Supreme Court is expected to reach a final decision early in 2020. In the meantime, Semenya has signed with JVW Football Club in South Africa and had to miss the World Championships in Doha in September 2019 and forgo an opportunity to defend her world title.

Semenya is currently represented by an experienced legal team of over 10 lawyers, from three different law firms on three continents.

Together with her legal team, Semenya remains defiant in the face of the IAAF’s attempts to govern eligibility of females to compete in women's competitions. Semenya has made it unequivocally clear that she will not allow the IAAF to drug her. She has made it equally clear that she is appealing the regulations not only for her own rights, but also for the rights of all other female athletes who will be subjected to the IAAF’s discriminatory regulations.