“Not Feminine Enough” for the Court of Arbitration of Sport

Emma Xu

Vol. 41 Associate Editor

No one could have known that a niche international arbitral tribunal headquartered in Lausanne, Switzerland would break social media by deciding against South African athlete Caster Semenya for her naturally elevated testosterone.  The decision handed down by the Court of Arbitration for Sport (CAS) in the spring of 2019, Caster Semenya v. International Association of Athletics Federations (IAAF), is just one of the many instances where international tribunals have failed women of color on the international legal stage. Semenya’s testosterone level is affected by a natural condition known as “hyperandrogenism.”[1]  This condition allows her to compete consistently at a high level.  However, her success has also led the IAAF to adopt a “differences of sex development” (DSD) regulation in 2011, which requires her to reduce her testosterone levels to a “normal female range” by taking medications for at least six months prior to any competition in order to be eligible for IAAF events.[2]  Semenya filed a request for arbitration with CAS, challenging this regulation.[3]   In the arbitral award, CAS determined that Semenya’s natural testosterone level is within the range of a normal adult male rather than female, concluding that her condition grants her a significant advantage over other female competitors.[4]  Consequently, CAS decided in favor of the IAAF and held that Semenya would either have to lower her testosterone level or forgo her competitions.[5]   The Court’s decision has profound repercussions in a world where gender identities are increasingly complex.  The decision demonstrates its clear inability to recognize female athletes’ bodily integrity and reconcile gender identity with international sports regulation.  The arbitral award hinges on a strictly defined “male-female divide” that is based on quantified hormonal levels.[6]  In addition, the award goes as far as mandating a specific hormone level in order for Semenya to be considered “female.”  The underlying philosophy of this award inevitably and quite intentionally dehumanizes Semenya into numbers and denies Semenya the identity that she was born with.  Additionally, the Court failed at its job to check the authority of international sports regulatory agencies and opened the door for other sports regulators to impose similarly discriminatory regulations upon certain athletes.   The CAS ignores the fact that what they think is an “objective, fair, and effective” means of determining male vis-à-vis female, i.e., hormone levels, is based on inherently flawed assumptions about gender and sex.[7]  The Court states that the intention of the biological divide between male and female is to protect athletes who do not have such innate biological advantages.[8]  However, the sport of track and field has traditionally been dominated with Europeans and never been inclusive of athletes from diverse backgrounds; the lack of competitive advantage of other athletes in the sport is rather a shortcoming of the sports in the way it is organized than a shortcoming of Semenya and athletes like her.[9]  The Court has treated Semenya as an outlier of the sport’s baseline, when she and similar athletes should have been considered an integral part of the competition.   The methodology that the CAS took to arrive at the arbitral award is also flawed.  First, the Court attempts to impose its own understanding of what is biologically female or male without serious scientific investigation.  The award relied primarily and substantially upon the submissions of the IAAF that the Court should recognize that a very particular testosterone level demarcates the difference between male and female in track and field.[10]  It is questionable that the arbitrators selected for the CAS either had the expertise to examine these scientific findings or the ability to make further inquiries into the scientific soundness of these submissions.  Simply taking the IAAF by its word is insufficient, especially when the CAS also determined in this case that the DSD regulation is “prima facie discriminatory” because it is only applicable to female athletes and not male athletes.[11]  While the CAS might have been legally fully authorized to use its power to endorse one version of gender identity, the Court is an illegitimate forum to make a science-based decision.[12]   Second, the Court failed to consider the basic principles underlying international customary law regarding “necessity” when overcoming the discriminatory nature of the DSD rule.  The IAAF claimed that the DSD regulation is necessary and proportional to the protection of other athletes who identify as female and compete with Semenya.[13]  Generally, in customary international law, finding something as necessary is a high bar for a respondent to establish.  For instance, the Draft Article on State Responsibility stated that a State may claim “necessity” as a justification of its actions only after establishing that it is “the only way” to safeguard its interest.[14]  In the context of international sport regulation, there is no reason for a court like the caliber of the CAS to give this justification any less serious and close scrutiny.  At the minimum, the CAS should have requested the IAAF to present that the Association has previously implemented less restrictive alternatives and failed.   Finally, the CAS’ decision overlooks the fact that similar regulations are not applicable to biologically male athletes.[15]  While the dispute before the arbitration is specific to the case of Semenya, it seems critical for the Court to notice and consider the fact that male athletes are not required to all be at a specific hormonal level in order to compete with each other.[16]  Such a discrepancy in how the IAAF regulates male and female athletes demonstrate that the DSD regulation was in fact not necessary to protect athletes with so-called normal hormone levels.  Had it been necessary, male athletes with above-average hormones should have also been required to undergo invasive medical procedures to maintain competitive balance.[17]   What’s worse?  The CAS tribunal has irresponsibly wielded its institutional power to undermine the already fraught movement to push for the protection of non-binary individuals in international law, especially international human rights law.[18]  Created under the auspices of the International Olympic Committee and the International Court of Justice, the CAS possesses unique erga omnes (“flowing to all”) effect to both sports and non-sports entities through its awards.  As a result, the CAS’s decisions contribute to the international human rights law jurisprudence.[19]  By forcing Semenya to choose between her own bodily integrity and her career as a top athlete, the Court is depriving her of her social and economic rights and her own means of subsistence based on an outdated vision of gender and sex.[20]  The requirement for her to take medicine to reduce her testosterone levels could also be characterized as an arbitrary interference with her right to privacy.[21]  The Court’s failure to address and even to notice these human rights deprivations will leave a dangerous precedent to its own arbitrators and other tribunals on how to address similar claims by individuals with unconventional physical traits or identities.   Semenya’s encounters with the CAS is also illustrative of the findings of the Vienna Tribunal for Women’s Human Rights.[22]  The Vienna Tribunal recorded stories of women of color who were forced to conform to heterosexual norms against their will.[23]  The stories told by women who were forced to wear a veil, to marry, and to give birth to children are not dissimilar to Semenya’s as she is practically ordered to conform her body to an arbitrary rule on gender.[24]  Consequently, Semenya’s case portrays a continued failure by the international legal community to respect women’s bodily integrity and human rights rather than an isolated incident in the niche realm of international sports regulation.  The simplistic and scientifically questionable award by the CAS, additionally, contributes to the poor track record of international tribunals in resolving disputes relating to women’s rights.[25]   Furthermore, the CAS award belongs to a long line of cases where international tribunals have historically failed to serve justice for women of color.  For instance, a broader comparison could be drawn with the failure of Women’s International War Crimes Tribunal on Japan’s Military Sexual Slavery.[26]  During WWII, Chinese and Korean women were forced to become sex slaves by the Japanese military, and were unable to demand reparations due to their powerlessness when facing competing political and diplomatic interests of powerful European and American institutions, who were aligned with an economically and politically prominent Japan.[27]  The tribunal, similar to what the CAS did in Semenya’s case, established a baseline of needs and priorities based on predominantly Western and Caucasian countries, rather than addressing the individual harms suffered by Asian women.   In sum, this recent CAS decision provides a highly publicized snapshot of how international tribunals exert their authority over an underprivileged group of international citizens.  The CAS should be considered an integral part of international law with influence over key developing issues such as gender identity and equality.  This case calls attention to both the CAS as an often-ignored international legal institution and international tribunals in general, for their lack of capability and willingness to properly bring justice to a vulnerable population.   Reform is needed to bring a more diverse and progressive point of view to the tribunals to address these increasingly complicated complaints.  For instance, the panel of arbitrators should include individuals from the Global South, whose home countries are more likely to be historically disadvantaged.  Additionally, the courts should make an effort of including more diverse perspectives by including people of color and people of non-binary gender identities.  Finally, it might be time for tribunals to broaden their arbitrators’ range of expertise, and to include experts capable of understanding and investigating complex scientific facts.  

  [1] Jere Longman, Understanding the Controversy over Caster Semenya, The New York Times (Aug. 18, 2016), https://www.nytimes.com/2016/08/20/sports/caster-semenya-800-meters.html. [2] Court of Arbitration for Sport, Caster Semenya & Athletics South Africa v. International Association of Athletics Federations, ¶7 (May 2019), https://www.tas-cas.org/fileadmin/user_upload/CAS_Executive_Summary__5794_.pdf. [3] Id, at ¶8. [4] Id, at ¶23. [5] Id, at ¶24-25. [6] Id, at ¶19. [7]  Id, at ¶17. [8]  Id, at ¶18-19. [9]  See also Longman, supra note 1. [10] See Court of Arbitration for Sport, supra note 2 at ¶18-22. [11] See Court of Arbitration for Sport, supra note 2 at ¶14. [12] See Court of Arbitration for Sport, Code of Arbitration in Sports, R46 (Jan. 1, 2019), https://www.tas-cas.org/fileadmin/user_upload/Code_2019__en_.pdf. [13] See Court of Arbitration for Sport, supra note 2 at ¶16-26. [14] See International Law Commission, Draft Articles on Responsibility of States for Internationally Wrongful Acts, November 2001, Supplement No. 10 (A/56/10), chp.IV.E.1, https://legal.un.org/ilc/texts/instruments/english/commentaries/9_6_2001.pdf. [15] See Longman, supra note 1. [16] Id. [17] See Court of Arbitration for Sport, supra note 8. See also Naturally Occurring High Testosterone Shouldn’t Keep Female Athletes out of Competition, Scientific American (Aug. 1, 2016), https://www.scientificamerican.com/article/naturally-occurring-high-testosterone-shouldn-t-keep-female-athletes-out-of-competition/. [18] See, e.g., Laurence Helfer & Erik Voeten, International Courts as Agents of Legal Change: Evidence from LGBT Rights in Europe, 68 International Organization 77, 84 (2014). [19] See id, at 78. [20] International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 U.N.T.S. 171, Art. 1. [21] Id, Art. 17. [22] See Charlotte Bunch & Niamh Reilly, Demanding Accountability: The Global Campaign and Vienna Tribunal for Women’s Human Rights 49-56 (Christine Lit ed., 2^nd ed. 1999). [23] Id. [24] Id. [25] See David Brown, Making Room for Sexual Orientation and Gender Identity in International Human Rights Law: An Introduction to the Yogyakarta Principles, 31 Mich. J. Int’l L. 821, 824 (2010). [26] See Sue R. Lee, Comment, Comforting the Comfort Women: Who Can Make Japan Pay?, 24 U. PA. J. INTL ECON. L. 509, 519 (2003). [27] Id. The views expressed in this post represent the views of the post’s author only.