Caster Semenya Appeals Court of Arbitration for Sport Decision
On 30 April 2019, the Court of Arbitration for Sport (CAS) delivered an Award on the challenges brought by Caster Semenya and Athletics South Africa (ASA) to the validity of the International Association of Athletics Federations’ (IAAF) eligibility regulations on athletes with “differences of sexual development” (the DSD Regulations). Ms. Semenya who has high levels of natural testosterone must subject herself to medication to lower her testosterone levels artificially if she wants to compete in IAAF sanctioned women’s events, including the Olympics.
By a majority, the CAS Panel dismissed the requests for arbitration stating that Ms. Semenya and ASA did not establish that the DSD Regulations were “invalid”. The Hearing Panel found that the DSD Regulations were discriminatory but that, on the basis of the evidence submitted by the parties, such discrimination was a necessary, reasonable and proportionate means of achieving the legitimate objective of ensuring fair competition in female athletics in certain events and protecting the “protected class” of female athletes in those events. The Hearing Panel also expressed serious concerns about the future practical application of the DSD Regulations indicating that constant attention must be paid to the fairness of how the DSD Regulations are implemented going forward.
The issue is now before the Federal Supreme Court of Switzerland. Ms. Semenya is asking the Swiss court “to set aside the decision of the CAS in its entirety” and hinted at her team’s legal strategy of appealing to “fundamental human rights”.