What effect could landmark gender case have on the future of sport?

Charlotte Hurst, of the Harrison Drury sports sector team and family law department, considers the gender ambiguities in sport raised by the recent case of South-African runner, Caster Semenya.

In a landmark case before the Court of Arbitration for Sport (CAS), Caster Semenya lost her legal battle with the International Association of Athletics Federation (IAAF). Here are the background details surrounding the IAAF dispute in an earlier blog post.

What does the ruling mean?

Under the IAAF regulations concerned, Semenya would have to take testosterone-controlling medication if she wants to continue competing in the women’s category.

After having her challenge rejected by CAS, Semenya has since filed an appeal to the Swiss courts.  The Swiss Federal Supreme Court suspended the ruling limiting testosterone levels in female athletes, allowing Semenya to compete temporarily without the need for medication. 

The IAAF has submitted its response requesting an overturn of the order, which allows Semenya to compete for the time being. If the IAAF fails to get the decision overturned, the regulations will remain suspended until Semenya’s full appeal is heard.  

Ambiguities with the current categories

The governing body remains firm on the fact that athletes are split into the traditional categories – male or female.  

Semenya’s case raises the question of how this binary distinction is made and whether in sport, this can be so clear-cut. It also demonstrates the complexities involved in the application of anti-doping regulations whilst respecting the principles of reasonableness, proportionality and human rights. 

In relation to regulating athletes with DSD (Athletes with Differences of Sexual Development), the IAAF’s efforts of achieving a “level playing field” arguably conflict with other fundamental principles of anti-doping law. While the DSD regulations have been found to be reasonable and proportionate on their face, Semenya’s case clearly raises concerns as to future compatibility.

Furthermore, the decision by CAS does not necessarily suggest that an athlete in similar circumstances to Semenya would be unsuccessful, but rather, a greater weight of evidence would need to be provided to the adjudicating panel in support of their submissions. 

Future complexities

The case highlights the difficulty sports have in dealing with issues relating to integration of athletes across the gender spectrum, particularly those who have atypical chromosomal makeup, and that, despite the IAAF’s traditional intentions, athletes cannot always be easily categorised as men or women for the purposes of competition. 

Harrison Drury solicitors can assist in sports dispute resolution, regulatory and disciplinary matters. For more information, please contact Charlotte Hurst on 01772 258321.