Lec 4 - Semenya, IAAF

What is DSD?

Differences in sexual development

What did the world athletic do after finding out 50-60 DSD athletes are in the finals? (in the news)

Sex tests

• World Athletics has introduced SRY screening, a gene test that uses a cheek swab to assess if someone is biologically male or female, for the world championships in Tokyo.

What is new update with skiing’s governing body regarding gender eligibility testing policy? (in the news)

Approved a policy which follows lead from world athletics earlier this year 

Will work with national team officials to implement this policy 

• protecting women’s sport by relying on science and biological facts 

What is the R. v. Ashton case? 

no details????

What is discrimination?

Described as a distinction, whether intentional or not, but based on grounds relating to personal characteristics of the individual or group, which has the effect of imposing burdens, obligations or disadvantages on such individual or group not imposed upon others, or which withholds or limits access to opportunities, benefits, and advantages available to other members of society

What are the personal characteristics?

race, religious beliefs, colour, gender, gender identity, gender expression, physical disability, mental disability, age, ancestry, place of origin, marital status, source of income, family status or sexual orientation of that person or of any other person.

Can you be found guilty of discriminating on personal characteristics?

Yes if you violate an act

• each province has its act 

• We have Alberta human rights act 

What is Blainey v. Ontario Hockey Association?

1986 decision in ontario court of appeal

• 12-year-old athlete was who was refused the right to play hockey in a league that had chosen her on a competitive basis because she is a girl

• Ontario Hockey Association required that all members be male (back then)

What did the human rights code state back at that time? What was the decision?

The right under section 1 to equal treatment with respect to services and facilities is not infringed where membership in an athletic organization or participation in an athletic activity is restricted to persons of the same sex

• < if a sport is only for boys or girls, then it can't be challenged…
  

Matter sent back to the Commission, found that Blainey was discriminated based on her sex

What are the cases related to Caster Semenya?

CAS 2018/O/5794 Mokgadi Caster Semenya v. International Association of Athletics Federations

CAS 2018/O/5798 Athletics South Africa v. International Association of Athletics Federations

There were two both of which were heard together as the facts of the case were similar 

• more efficient, saving resources 

Who were the parties involved in the cases? Who are the claimants?

Parties:

• Mokgadi Caster Semenya

  • Female South African athlete

  • Middle Distance Runner-2012 and 2016 Olympic Games Champion in 800m event

  • first claimant 

• Athletics South Africa (ASA)

  • second claimant 

  • sport governing body for athletics in South Africa 

• International Association of Athletics Federations (IAAF) (now World Athletics

What is the background/timeline before her case?

September 2014-Dutee Chand-Hyperandrogenism Regulations

• high levels of natural testosterone, brought proceedings before the CAS against the IAAF and Athletics Federation of India

• appealed that she was ineligible to compete under the IAAF regulations governing eligibility of females with hyperandrogenism to compete in women’s competition 

24 July 2015-CAS delivered an interim award:

• Upholding Chand’s appeal and suspending the Hyperandrogenism Regulations for a period of up to two years (essentially she won the case) 

What happened to the hyperandrogenism regulations?

March 9, 2018-IAAF decides to withdraw hyperandrogenism regulations and replace with new regulations-DSD Regulations

• These regulations do not apply to Chand (only for middle distance). Proceedings terminated

• Standing

Athletes with Differences in Sex Development (DSD)

IAAF enacts eligibility regulations for the female classification

Semenya challenges the DSD Regulations

What are the DSD regulations April 2018?

New mandatory requirements governing the eligibility of women with certain differences of sex development (‘DSD”) and levels of endogenous testosterone above 5 nmol/L to participate in the female classification in 8 events:

• Restricted events include 400m, 800m, and 1500m races  Events Semenya normally participates in

What was challenged about these regulations?

Why they were only for certain events? What about hammer throw/pole vault?

• ^ their research showed they could have advantage in these sports as well but they didn't include this (shady)

How did Semenya challenge the DSD regulations?

Said they are discriminatory

• Discriminate on the basis of physical appearance since the testing of female athletes is based on subjective assessment of their phenotype and their virilisation characteristics 

• DSD Regulations discriminate against female athletes who compete in specific events (400m to 1 mile) while athletes who compete in shorter or longer events are not subjected to scrutiny under the regulations

DSD Regulations are arbitrary

• Threshold of 5nmol/L is arbitrary since there is no empirical data suggesting that women with testosterone over this threshold have any greater advantage than women with testosterone under this threshold

What was the relief sought by semenya? (relief: what does she want from court/arbitrator)?

• DSD Regulations be declared invalid and void with immediate effect

• In the alternative, grant a moratorium of at least 7 months on the entry into effect of the regulations. Allow time for findings of the panel to be published and disseminated

  • if main request isn’t accepted, then delay new regulations for 7 months

• Suspension will ensure affected athletes will not be prevented from competing in Restricted Event despite being willing to comply with the requirements of the Regulations

  • stop the rules so they can compete if they comply

• Costs

What were the submission from the ASA (athletics south africa)?

• Unethical use of the blood samples (para 225) (issue in the research)

• Unlawful under law of Monaco, the law of the Republic of Korea and the law of the Russian Federation-absence of informed consent.

  • Inadmissible

• Reliance on two studies addressing the role of testosterone in enhancing sport performance (not enough)

• ASA also wants DSD Regulations invalid and void

What were the submission from the IAAF?

• IAAF entitled and required to provide male and female athletes with an equal chance to excel

• Very best male athletes beat very best female athletes by around 10-12%

• Higher level of testosterone is primary cause of physical advantages

  • Men having stronger bones

  • 18% larger and stronger muscles

  • 12% more serum hemoglobin (HGB)

• Even if the DSD Regulations discriminate- ‘the right to equal treatment may lawfully be restricted where the differential treatment is necessary, reasonable and proportionate to the achievement of a legitimate objective’

  • essentially the discrimination was for equal treatment 

What relief did the IAAF claim? (3)

1. DSD regulations do not infringe on athletes right

2. Regulations justified and proportionate: to preserve fair and meaningful competition within the female classification

3. Costs

Why was this case before the CAS - why is it there jurisdiction?

Due to a clause, agreement between parties, statues/regulations

The clause for DSD regulations say 

• Any dispute arising between the IAAF and an affected athlete in connection with these regulations will be subject to the exclusive jurisdiction of the CAS

What is the eligibility requirements the DSD regulations by IAAF? (3)

1. recognized at law either as female or intersex

2. Reduce her blood testosterone level to below 5 nmol/L for a continuous period of at least 6 months

3. Must maintain blood testosterone level below 5 nmol/L

What would be the consequences for an athlete not meeting the eligibility conditions? (4) ????? 

1. Female classification competitions not international competitions for restricted events

2. International competition other than restricted events

3. Male classification

4. Intersex or similar classification

Athletes didn’t provide informed consent for their data to be used by IAAF for these purposes. What is the argument? What was the decision? 

Argument-violated applicable national laws on biomedical research if proper informed consent was not obtained

Panel concludes data is admissible

What is burden of proof?

Onus to prove one’s case

Who has the burden of proof in this case?

Claimants bear legal burden-establish that they are discriminatory

If discriminatory-burden shifts to IAAF

IAAF needs to show:

• DSD regulations are necessary, reasonable and proportionate

• Shifting burden of proof

How do the DSD regulations constitute discrimination according to the olympic charter?

The charter states discrimination can be of race, color, sex, sexual orientation, language, religion, political or other opinion, natural or social origin, property, birth, or other status

The DSD set conditions and restrictions that are targeted at a subset of the female/intersex athlete population, and do not impose any equivalent conditions or restrictions on male athletes

• only some females/intersex targeted

Prima facie discriminatory-differential treatment based on protected characteristics

• at first glance it looks like discrimination because certain women treated differently based on their biological traits (protected characteristic)

What does prima facie discriminatory mean?

Prima facie discriminatory” means — it seems unfair when you first look at it.

Are the DSD regulations necessary (according to IAAF) ? Why?

Yes to maintain fair competition 

• Ensuring fair competition in the “Protected” female category of elite competitive athletics is a legitimate objective for the IAAF to pursue

• Testosterone enhances athletic performance

• 46 XY 5-ARD athletes have a significant advantage over 46 XX female athletes

According to IAAF, taking birth control pills as treatment to lower testosterone is minimal and reasonable step (proportionality argument) 

What was the conclusion by the panel on validity of the DSD regulations? Why?

Panel determines that DSDS Regulations are Discriminatory BUT are:

• Necessary

• Reasonable, and

• Proportionate

To keep the integrity of female athletics and upholding the “protected class” of female athletes in certain events

Arbitration filed by Semenya and ASA against the IAAF seeking to declare unlawful the eligibility regulations for the female classification are dismissed

How did Semenya respond to this? What happened?

She appealed to the Swiss Federal Supreme Court which:

• Upheld the decision of the Court of Arbitration for Sport

• Semenya did not compete at the Tokyo games

2022 World Championships-5000m event, Caster did not qualify

What happened in tokyo 2020 games for Semenya? How did other athletes respond?

DSD Regulations in place

Semenya did not compete at Tokyo Olympics

Christine Mboma (400m athlete moved to 200m as this didn’t have restriction)

• Silver 200 metres- 2020 Tokyo Olympics

What did Semenya do next?

Went to European Court of Human Rights (2023) which held 4 votes to 3

• said it violated articles of European convection on human rights

This was a win in court but ultimately the regulations stayed in place 

What are the updated DSD regulations in 2023? (4)

1. recognised at law (for example, in a birth certificate or passport) either as female or as intersex;

2. continuously maintained the concentration of testosterone in their serum below 2.5 nmol/L3 for a period of at least 24 months; and

3. must continue to maintain the concentration of testosterone in their serum below 2.5 nmol/L at all times (i.e., whether they are in competition or out of competition) for so long as they wish to retain eligibility to compete in the female classification at World Rankings Competitions and/or to have recognised any World Record performance in the female classification at a competition that is not a World Rankings Competition.

4. Applies to any competition sanctioned by World Athletics

What is the new update in September 2025 by world athletics?

Will require chromosome testing for female athlete

• need to be biologically female to compete in female category at elite level

What does it mean to be biological male and female according to world athletics?

• ‘biological male’ means someone with a Y chromosome and

• ‘biological female’ means someone with no Y chromosome, irrespective of their legal sex and/or gender identity

Who is allowed to compete in the female category? (4)

a. Biological females.

b. If a biological female athlete took testosterone as part of gender transition (with permission), she must wait at least 4 years after stopping it before competing in women’s events again.
The exact wait time depends on the details of her treatment.

c. Biological males who have Complete Androgen Insensitivity Syndrome and therefore have not gone through male sexual development including any type of male puberty.

d. Biological males with a difference of sex development who satisfy the transitional provisions issued by World Athletics

What is the new testing method for eligibility in female category?

SRY gene testing of cheek swab or blood sample

• if negative, can compete

• if positive, can’t compete until further assessment

• if athlete doesn’t do this testing then can’t compete

What events do these new regulations apply for?

for all events now