Greenhow, Annette; Weinert, Kim --- "Barriers to participation in elite-level sport: The case of Mokgadi Caster Semenya" [2022] PrecedentAULA 27; (2022) 170 Precedent 10

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BARRIERS TO PARTICIPATION IN ELITE-LEVEL SPORT

THE CASE OF MOKGADI CASTER SEMENYA

By Dr Annette Greenhow and Kim Weinert

Sport is a unique regulatory domain, a domain recognised for the richness of its culture and social engagement, with a ‘sport for all’ ethos embracing principles of diversity, equity and inclusivity. The key objective of Sport Australia’s Inclusive Sport policy is ‘creating positive, inclusive experiences for everyone who wants to participate’.^[1] This ethos is embedded in many governmental and non-governmental sport-related policies across the world, designed to enhance participation and encourage active communities; but there are some individuals, especially at the elite level, for whom such an ethos does not fully translate into practice. The case of Mokgadi Caster Semenya highlights this.

This article examines the challenges associated with balancing interests while adhering to the ‘sport for all’ ethos. It begins by setting out the background and regulatory role of World Athletics (WA) as custodian and guardian of the sports of athletics and as the international sports federation with rule-making authority over establishing, monitoring and enforcing eligibility criteria for participation in elite-level competition in the sports of athletics.

We then analyse the case of Semenya, a well-known South African elite athlete, who elected to challenge the legitimacy of the WA’s eligibility regulations as an intersex person with lived experience of discriminatory practices in elite-level sport.

Finally, this article discusses the wider implications for sport in general, particularly those sports where competition is based on traditional cisgender classification systems.

BARRIERS TO PARTICIPATION

Participants in sport across all countries, including Australia, who have specific ‘immutable biological characteristics’^[2] such as differences in sex characteristics, must overcome additional barriers in order to be eligible to participate at the highest level in certain categories of sporting competition.

Since 2018, regulations have been imposed on any intersex person who has innate sex characteristics (such as chromosomes, gonads or hormones) that ‘don’t fit medical and social norms for female and male bodies’^[3] and who wishes to compete in certain athletic running events at the elite level. These are the Eligibility Regulations for the Female Classification (Athletes with Differences of Sex Development) (DSD Regulations) promulgated by WA.^[4] The following rationale is advanced by WA as justifying this approach: ‘[T]here is a broad medical and scientific consensus, supported by peer‐reviewed data and evidence from the field, that the high levels of endogenous testosterone circulating in athletes with certain DSDs can significantly enhance their sporting performance’, thereby creating ‘unfair competition conditions’.^[5]

The DSD Regulations establish an eligibility criterion for competing in certain events by requiring participants’ testosterone levels to fall below a specified level. If naturally occurring testosterone levels are above this threshold, a person who wishes to compete at the elite level would be left to decide either to withdraw from competition, take hormone suppressing drugs to bring testosterone levels to below the specified threshold, or compete in the men’s category of the elite-level competition.

If eligibility requirements under the DSD Regulations are prescribed for the primary purpose of ensuring athletes fit the criteria for certain elite-level running events, it is relevant to ask: is restricting the right to sport to those who meet the requirements under the DSD Regulations a reasonable, necessary and proportionate mechanism for protecting the legitimate interests of the sport? The case highlighted in this article concerns the female category of certain running events regulated by WA. According to the Court of Arbitration for Sport (CAS) – the supreme arbitral dispute resolution forum for sport-related disputes – the DSD Regulations do fall within the realm of proportionate discrimination; they are reasonable, necessary and proportionate in the context of specified elite-level athletics events.^[6] However, according to the World Medical Association (WMA) and the United Nations Human Rights Council (UNHRC), doubts remain, these types of regulations may breach principles of primacy of patient care (according to the WMA) or violate the human rights of an individual (according to the UNHRC).^[7]

SPORT FOR ALL?

The position of World Athletics

Established in 1912, WA was formerly known as the International Amateur Athletic Federation and the International Association of Athletics Federations (IAAF). It is recognised as the international sports governing body representing the sports of athletics. As the custodian of these sports and recognised by the International Olympic Committee, WA expressly recognises the importance of a ‘sport for all’ ethos, noting that:

‘World Athletics need[s] to be proactive when trying to reach new audiences and find new hosts for [its] events. It is also fundamental that we fully understand that athletics is no longer just about high performance, gold medals and records, but also about “sport for all” and about ensuring that the maximum number of citizens are able to participate in athletics.’^[8]

A key organisational function of WA is establishing rules and policies on eligibility criteria for participation in elite-level athletic sports. As sanctioned and authorised by WA, participants in elite-level events are then eligible to compete at sports events such as the World Championships and the Olympic Games. As such, WA is a dominant actor responsible for the regulation and governance of athletic sports as well as for establishing eligibility for, and sanctioning, international elite-level competitions.

From ‘peek and poke’ testing to regulations

Testing began in the 1930s after several athletes were discovered to have ambiguous genitalia or were not considered ‘feminine looking women’.^[9] Early concerns were based on fears of ‘gender fraud’, the risk of scandal from males masquerading as women, and problems with ‘maintain[ing] the natural order of masculinity and femininity.’^[10] This led to a testing regime colloquially referred to as ‘peek and poke’.^[11]

While it could be seen as scandalous by today’s cultural norms, the policy framework introduced at the 1966 European Athletics Championships required female athletes to be naked in front of a panel of gynaecologists in order to have their identity confirmed. According to legal academic Seema Patel, the consequence of this testing regime and policy approach was the view that ‘only normal feminine looking women should compete in sport’.^[12] Therefore, as Patel explains, ‘such testing forced many top athletes quietly out of competition.’^[13]

Thankfully, elite-level testing regimes and methods have shifted away from these earlier approaches. After several iterations of policies designed to regulate eligibility based on sex differences and hormone levels in certain female running events, the IAAF promulgated the DSD Regulations, which commenced operation in November 2018.

The Court of Arbitration for Sport

South African Mokgadi Caster Semenya is an elite-level athlete, specialising in middle distance running events. During her career, she excelled in several events, including the 800m event, and finished first at the 2009, 2011 and 2017 IAAF World Championships, and the 2012 and 2016 Olympic Games.^[14]

At the 2009 IAAF World Championships in Berlin, Semenya first became subjected to gender verification testing ordered by the IAAF. According to evidence before the CAS, shortly after the examination a senior IAAF official reportedly said that ‘“it is clear that [Ms Semenya] is a woman but maybe not 100 per cent”.’^[15] Semenya was ‘acutely conscious’ that people were scrutinising her body and judging her appearance, describing this as the ‘“most profound and humiliating experience of my life”.’^[16] Shortly after the 2018 Commonwealth Games, where Semenya won the 1500m running event, the IAFF implemented the DSD Regulations. Instead of being forced quietly out of competition, Semenya refused to accept the DSD Regulations and commenced proceedings in the CAS to protect her right to ‘sport for all’, notwithstanding her ‘immutable biological characteristics’^[17] as an intersex person. In evidence before the CAS, Semenya explained: ‘“it feels like this new rule was created because of me”.’^[18]

According to Semenya’s evidence in the CAS hearing, when she had used hormone supressing drugs to try to suppress her testosterone levels, this had caused her to suffer, among other things, ‘a range of side effects including weight gain, feverish symptoms and consistent abdominal pain’.^[19]

The CAS had jurisdiction to hear the matter, with Semenya submitting to its exclusive jurisdiction as a private arbitral body. In the arbitration application, Semenya requested the CAS panel of arbitrators (Panel) render an award declaring the DSD Regulations unlawful.^[20]

While acknowledging that the case was a difficult one to decide, the Panel dismissed Semenya’s assertion that the DSD Regulations were unlawful. The Panel considered that the DSD Regulations, while discriminatory, were reasonable, necessary and proportionate for protecting the legitimate interests of WA under the current female classification system in the relevant running events. In balancing the rights of the parties, the Panel was persuaded that the rights of female athletes prevailed, finding female athletes ‘relevantly biologically disadvantaged vis-à-vis male athletes’, and respecting their right ‘to be able to compete against other female athletes and not against male athletes and to achieve the benefits of athletic success’.^[21]

The Panel, operating within a private arbitral system, was constrained by the arbitral agreement and the evidence presented by the parties. While Semenya requested the Panel consider the ‘disproportionate effect in the consequences of the DSD Regulations in broader society’,^[22] the Panel noted the ‘constraints on the Panel’s competence and role’, essentially finding that consideration of the wider impact of the DSD Regulations fell outside its decision-making power.^[23]

THE WIDER IMPACT OF THE SEMENYA CASE

As earlier noted, the ‘sport for all’ ethos is pervasive across governmental and non-governmental global policymaking. Indeed, even WA expressly recognises the principle.^[24] However, the Panel’s decision to uphold the DSD Regulations in Semenya’s case provides a striking example of how institutional thinking is out of step with social and cultural attitudes to gender discrimination. In excluding Semenya and denying her universal rights, the decision protects a space that is reserved for ciswomen and their interests only (that is, to compete on a ‘level playing field’). The CAS Arbitral Award, while made within the parameters of arbitral decision-making, displaces Semenya’s universal human rights for the sake of pursuing a notion of fairness and advancing the interests of WA. The Arbitral Award does not advance the public debate on inclusion.

In arbitrarily upholding the DSD Regulations, WA is contributing to the persistent inequality experienced by, and discriminatory treatment of, intersex and non-binary persons.^[25] The cultural significance of the DSD Regulations is their perpetuation of a strict binary two-gender construct. Unwilling to depart from an entrenched societal construct of gender, WA implicitly reinforces a stereotypical image of a ciswoman athlete.

Concerns of the United Nations

Semenya’s plight meant she was denied equality and inclusion, and would be unable to compete (and work) free from discrimination. This brought into sharp focus how sport regulation can negatively impact universal human rights.^[26] Close scrutiny of the DSD Regulations by the UN:

‘raised concerns that the regulations effectively legitimise the surveillance of all women athletes based on stereotypes of femininity, [and would] single out a group of women athletes, putting them at risk of repercussions ... [and] also subjecting them to shame, ridicule and intrusion upon their personal and private lives.’^[27]

An attempt by WA and the CAS Arbitral Award to ‘level the playing field’ for the sake of fairness gives rise to the important question of what threshold of risk of harm an individual and a specific group of LGBTIQA+ must withstand in order for the eligibility regulation to be justified. Semenya’s account of being ‘subjected to unwarranted and invasive scrutiny of the most intimate and private details of my being’^[28] emphasises how bodily integrity and dignity can be risked (and even lost) for the sake of the eligibility regulation. More broadly, the UN argued that the implementation of the eligibility regulation denies an equal right to participate in sport and violates the right to non-discrimination.^[29] Other rights identified by the UN which are negatively impacted by the eligibility regulations are:

1. The right to freedom from torture and other cruel, inhuman, or degrading treatment or punishment.^[30]

2. The right to work and to the enjoyment of just and favourable conditions of work.

3. The right to the highest attainable standard of physical and mental health.

4. The right to sexual and reproductive health.

5. The right of everyone to be free from arbitrary interference with their privacy.

6. The right to respect for the dignity, bodily integrity and bodily autonomy of the person.^[31]

Furthermore, these basic human rights of people born with variations in sex characteristics are entrenched in various international instruments and enshrined in most State laws. To illustrate, the Yogyakarta Principles are an application of human rights law in respect of sexual orientation, gender identity, gender expression and sex characteristics, and human rights of people born with variations in sex characteristics.^[32] Furthermore, these principles include consideration of the right to bodily and mental integrity.

In 2017, Australia introduced the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013 (Cth). The amendment of the Sex Discrimination Act 1984 (Cth) makes it unlawful to discriminate against a person on the basis of the person’s intersex status.^[33]

It has long been expected that non-State actors also be committed to and engage with human rights norms by striving to achieve equality and remove discriminatory barriers; however, many governing organisations in the sporting area have shown general ambivalence about their role of upholding positive human rights norms and understanding their obligations under international human rights frameworks. Indeed, WA contends that it is not bound by human rights instruments, noting:

‘The IAAF is not a public authority, exercising state powers, but rather a private body exercising private (contractual) powers. Therefore, it is not subject to human rights instruments such as the Universal Declaration of Human Rights or the European Convention on Human Rights.’^[34]

The UN High Commissioner, in explaining the concept of intersectionality, noted that sport offers a system that captures gender discrimination, but also creates layers of inequality.^[35] Sport and its respective governing bodies occupying this paradoxical position must strive to understand their responsibility to eliminate discrimination and inequality. There remains little doubt that WA, as a global non-State actor, has both a legal and an ethical responsibility to understand how its regulatory mechanisms shape and modify sociocultural treatment of minorities. The DSD Regulations, in promoting and seeking to uphold fixed constructions of gender, do very little to eliminate intersectional discrimination and inequality. WA’s displacement of an intersex athlete’s human rights and the lack of judicial oversight of human rights violations makes it challenging to understand how WA can continue to assert its supreme authority as a guardian when harm is suffered by those who need protecting.^[36]

CONCLUSION: INCOMPATIBLE WITH THE ‘SPORT FOR ALL’ ETHOS

Given the imposition of eligibility barriers in Semenya’s case, the WA ‘sport for all’ ethos is perhaps more accurately described as an ethos of sport for all who fall within binary notions of male or female bodies. The Semenya case reflects the incompatibility of the treatment of intersex elite-level athletes and the ‘sport for all’ ethos. While the strict application of the arbitral rules and narrow decision-making framework led to a finding by the CAS that these types of DSD-style regulations are not unlawful, the wider societal impact of such an approach, as raised by actors such as the WMA^[37] and the UNHRC, means that this matter is far from settled.

Based on the DSD Regulations, a person like Semenya with naturally occurring high levels of testosterone faces a dilemma not presented to a cisgender person, due to the existence of ‘immutable biological characteristics’. For the time being, WA continues to enforce the DSD Regulations, and the topic continues to attract widespread attention.

Whether these types of discriminatory practices in sport align with human rights norms is yet to be tested. However, to support her defence of her rights, Semenya filed proceedings in the European Court of Human Rights.^[38] A hearing date is yet to be set. The case will certainly be one to watch.

Dr Annette Greenhow is Assistant Professor at Bond University and teaches and researches in the area of Global Sports Law and Governance. Annette is also the General Editor of Bond University’s Sports Law and Governance Journal.

Kim Weinert is a PhD candidate at Griffith University, Queensland. Kim teaches corporate law at the University of Queensland and has published previously in the areas of not-for-profit law and cultural legal studies.

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^[1] Sport Australia, Inclusive Sport <https://www.sportaus.gov.au/integrity_in_sport/inclusive_sport>.

^[2] Mokgadi Caster Semenya v International Association of Athletics Federations (Award), Court of Arbitration for Sport, Case No 2018/O/5794, 30 April 2019 (Arbitral Award), [547(d)].

^[3] See Intersex Human Rights Australia <https://ihra.org.au/19853/welcome/>.

^[4] Eligibility Regulations for the Female Classification (Athletes with Differences of Sex Development), International Association of Athletics Federations (entered into force 1 November 2018), reg 2.3(c) (‘IAAF DSD Regulations’).

^[5] Ibid, 1, 2.

^[6] Arbitral Award, above note 2.

^[7] For further discussion on the WMA’s opinion, see WMA, ‘WMA Urges Physicians Not to Implement IAAF Rules on Classifying Women Athletes’ (Media release, 25 April 2019) <https://www.wma.net/news-post/wma-urges-physicians-not-to-implement-iaaf-rules-on-classifying-women-athletes/>. For further discussion regarding the UN General Assembly, see Human Rights Council, Elimination of Discrimination Against Women and Girls in Sport, 40^th sess, Agenda Item 3 UN.

^[8] See World Athletics, About World Athletics <www.worldathletics.org/about-iaaf>.

^[9] S Patel, Inclusion and Exclusion in Competitive Sport: Socio-Legal and Regulatory Perspectives, Routledge, 2015, 86.

^[10] Ibid, 87.

^[11] Ibid, 86.

^[12] Ibid.

^[13] Ibid.

^[14] Arbitral Award, above note 2, [3].

^[15] Ibid, [75].

^[16] Ibid, [74].

^[17] Ibid, [547(d)].

^[18] Ibid, [73].

^[19] Ibid, [594].

^[20] Ibid, [14].

^[21] Ibid, [460].

^[22] Ibid, [587].

^[23] Ibid, [589].

^[24] World Athletics, above note 8.

^[25] Gender verification testing (sex testing) began in the 1930s, and by the 1960s was in place for all woman athletes competing in international competitions governed by the International Olympic Committee and/or the International Association of Athletics Federations (World Athletics).

^[26] UNHRC, Report of the United Nations High Commissioner for Human Rights, Intersection of race and gender discrimination in sport, A/HRC/44/26, June 2020 (UNHRC), Agenda items 2 and 3, [25], 7 (UNHRC Report) <file:///H:/Downloads/A_HRC_44_26-EN.pdf>.

^[27] Ibid, [33].

^[28] M C Semenya, ‘Caster Semenya’s comeback statement in full’, The Guardian (31 March 2010) <https://www.theguardian.com/sport/2010/mar/30/caster-semenya-comeback-statement>.

^[29] UNHRC, above note 26, [34], 8.

^[30] The Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment acknowledges that IAAF’s regulations afford athletes the choice not to undergo intrusive medically unnecessary assessments or to be subject to treatments that will have negative impacts on their health and wellbeing: Mandates of the Special Rapporteur on the Right of Everyone to The Enjoyment of the Highest Attainable Standard of Physical and Mental Health; The Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; and the Working Group on the Issue of Discrimination in Law and in Practice, OL Oth 62/2018 (18 September 2018) <https://www.ohchr.org/Documents/Issues/Health/Letter_IAAF_Sept2018.pdf>.

^[31] UNHRC, above note 26, [34], 8–9.

^[32] The Yogyakarta Principles, Principles on the application of international human rights law

in relation to sexual orientation and gender identity <https://data.unaids.org/pub/manual/2007/070517_yogyakarta_principles_en.pdf>.

^[33] Sex Discrimination Act 1984 (Cth), s5C. Discrimination on the ground of intersex status is subject to the reasonableness test under s7B. See also s7D on special measures intended to achieve equality.

^[34] See World Athletics, ‘IAAF publishes briefing notes and Q&A on Female Eligibility Regulations’ (Media release, undated) <www.worldathletics.org/news/press-release/questions-answers-iaaf-female-eligibility-reg>.

^[35] UN High Commissioner for Human Rights, Impact of Multiple and Intersecting Forms of Discrimination and Violence in the Context of Racism, Racial Discrimination, Xenophobia and Related Intolerance on the Full Enjoyment of All Human Rights by Women and Girls: Report of the United Nations High Commissioner for Human Rights Impact of multiple and intersecting forms of discrimination, 21 April 2017, A/HRC/35/10, [7].

^[36] See A Greenhow and K Weinert, ‘Diversity, Equity and Inclusion (or Exclusion) in Sport: A Review of the Caster Semenya Case’, Griffith Journal of Law & Human Dignity, Vol. 7, No. 2, 2019, 48–74.

^[37] See World Medical Association, ‘Physician Leaders Reaffirm Opposition to IAAF Rules’ (Media release, 15 May 2019) <https://www.wma.net/news-post/physician-leaders-reaffirm-opposition-to-iaaf-rules/>.

^[38] Registrar, European Court of Human Rights, ‘Notification of Semenya v. Switzerland’ (Media release, 17 May 2021) ECHR 148 (2021).