Appeal against Court of Arbitration for Sport decision on the IAAF Eligibility Regulations for the Female Classification

The IAAF announced its intention to bring in regulations, known as the “Eligibility Regulations for Female Classification (Athletes with Differences of Sex Development)” (the DSD Regulations) earlier last year. The DSD Regulations were scheduled to come into effect from November 2018.

Prior to the DSD Regulations coming into force, Semenya and ASA commenced proceedings in the CAS, seeking a ruling from sport’s ultimate arbiter that the DSD Regulations were invalid. Semenya and ASA sought to challenge the DSD Regulations on a number of grounds including the reliability of the science behind the regulations. They also alleged that the DSD Regulations were disproportionate to ensure fairness in the specific female athletic events and were also discriminatory.

In defending the claim, the IAAF claimed that the DSD Regulations were necessary to ensure fairness. The IAAF had previously relied upon scientific evidence which indicated that in middle distance events from 400m to the mile, competitors with testosterone levels above the allowable threshold may obtain as much as a 3% competitive advantage over those with testosterone levels within the proposed allowable range.

In a 2-1 decision on 1 May 2019, the CAS determined that the DSD Regulations were valid. While CAS conceded that the DSD Regulations did discriminate, it otherwise determined that the DSD Regulations were a “necessary, reasonable and proportionate means of achieving the IAAF’s aim of preserving the integrity of female athletics”.¹

CAS determined that based on the scientific evidence put before it, female runners with testosterone levels above the proposed allowable threshold are likely to have an unfair competitive advantage in certain disciplines and must accordingly medicate themselves to suppress their testosterone levels in order to compete. Those falling foul of the threshold required under the DSD Regulations will be required to decrease their natural testosterone levels to a level below five nanomoles/L through testosterone-lowering contraceptives. They must maintain such a level for a period of at least six months in order to compete.

There was considerable backlash from both the sporting and non-sporting world at the CAS decision and the IAAF’s DSD Regulations. The United Nations Human Rights Council has been critical of the DSD regulations, calling them discriminatory. The World Medical Association (WMA) has also published a statement on its website advising physicians “to take no part in implementing new regulations for classifying female athletes.” ²  WMA Chairman Frank Montgomery was reported by the ABC as stating that “it is extremely serious if international sports regulations demand physicians to prescribe medication – hormonally active medication – for athletes in order to reduce normal conditions in their body.” ³

The DSD Regulations also open an ethical can of worms relating to the regulation of athletes with a distinct natural physiological advantage. Why regulate athletes like Semenya when the same is not done for say a Michael Phelps in swimming who had an above-average arm-span length or for some professional cyclists who may have a below average resting heart rate? The clear counter argument to this is that we already regulate the fairness of sporting competition through the male/female divide. However, such a binary distinction of gender may become less and less appropriate and, in the future, should sporting bodies encroach into this controversial area through regulation, it could realistically give rise to a third category of athletic competition.

ASA announced overnight that it will appeal the CAS decision to the Swiss Federal Tribunal. Appeals to the Swiss Federal Tribunal are usually conducted on the papers and are confined to being made on an error of law, and are difficult to win.

It’s been flagged that the appeal will be made on grounds, including that:

Opinion regarding the strength of the science supporting the DSD Regulations has been divided and ASA’s prospects of a successful appeal may increase if they can show that the CAS panel failed to adequately consider the scientific evidence both in support of, and disputing, the DSD Regulations.

While the IAAF announced following the CAS decision that the DSD Regulations would be effective from 8 May 2019, a request for an interim ruling by the Swiss Federal Tribunal to suspend the IAAF’s regulations until ASA’s appeal is heard, may be made.

As for the broader impact of this matter on other sports, the International Olympic Committee (IOC) has previously said that it was awaiting the CAS decision before deciding on whether it takes any similar action in relation to implementing regulations of this nature across Olympic competition outside athletics at the 2020 Tokyo Olympics.

At Olympic level currently, transgender athletes are not required to have reassignment surgery in order to participate. Those transitioning from female to male can compete without restriction.
Athletes transitioning from male to female are required to declare that their gender identity is female and, for sporting purposes, cannot rescind such declaration for a period of four years. Such athletes must also suppress their testosterone levels below ten nanomoles/L for a period of one year before becoming eligible to compete at the Olympics.

Should ASA’s appeal against the IAAF’s DSD Regulations fail, this may prompt the IOC to recommend that Olympic sports adopt the more restrictive cutoff of five nanomoles/L at the Tokyo games and into the future.

¹ Executive Summary – Caster Semenya and Athletics South Africa v IAAF, Court of Arbitration for Sport, 30 April 2019; see also http://theconversation.com/its-not-clear-where-human-rights-fit-in-the-legal-ruling-on-athlete-caster-semenya-116417?utm_source=facebook&utm;_medium=facebookbutton by Dr Annette Greenhow, 3 May 2019.

² https://www.wma.net/news-post/wma-urges-physicians-not-to-implement-iaaf-rules-on-classifying-women-athletes/

³ https://www.abc.net.au/news/2019-05-05/caster-semenya-testosterone-iaaf-doctors-unethical-world-medical/11081084