Caster Semenya is temporarily free to compete in all athletic events, without lowering her testosterone levels, following the outcome of an interim appeal to the Swiss Federal Tribunal.
Court of Arbitration for Sport Decision
The International Association of Athletics Federation’s (IAFF) Eligibility Regulations for Female Classification (Athletes with differences of Sex Development) (the Regulations) which were due to come into force late last year, provide that female athletes who have testosterone levels above a certain threshold cannot compete in athletics events from 400m to 1 mile.
Caster Semenya, the reigning 800m World Champion, is one of the highest profile athletes who would be affected by the Regulations.
Before the Regulations came into force, their validity was challenged by Ms Semenya by means of an arbitration request to the Court of Arbitration for Sport (CAS). The Regulations were suspended pending the outcome of that award and on 1 May 2019, CAS dismissed the request. It held that although the Regulations were discriminatory on grounds of legal sex and innate biological characteristics, they were a “necessary, reasonable and proportionate means of achieving the IAAF’s aim of preserving the integrity of female athletics in the restricted events”. As such, CAS did not declare the Regulations as invalid and gave permission to the IAFF to activate the Regulations.
Appeal to the Swiss Federal Tribunal
Caster Semenya appealed the CAS decision to the Swiss Federal Tribunal (SFT) on 29 May 2019 and on 3 June 2019, the SFT made an interim ruling to suspend the Regulations, pending the outcome of the full appeal. This means that Ms Semenya and other affected athletes will be temporarily free to compete in all athletic events, without any restrictions and without any need to take any testosterone reducing medications.
The IAFF has until 25 June 2019 to respond with its arguments to the SFT. Although this is a temporary win for Ms Semenya, it will be interesting to see what arguments the IAFF put forward and whether this will influence the SFT to uphold the CAS ruling.
The hearing of the appeal of the CAS decision is pending, with no final appeal date set. The final decision will have ramifications for athletes worldwide. It remains to be seen whether Ms Semenya, and other affected athletes will be free to compete in these events going forward.
This article is an update to the third article in our Employment Law in Sport series which considered the Semenya case in detail and also considered similar sport discrimination claims in Ireland. Click to see the first and second articles in this series.