SAD NEWS: "Caster Semenya to miss World Championships after court ruling".

Sir the women's 800m will be lost without you.

Let me start by saying that I feel sympathy for Caster- I really do. It sucks for her. She didn’t ask for any of this, she is an athlete who wants to compete. I can’t imagine how she feels with people calling her a man and all the other cruel internet comments.

That said this is the right decision. While it may be unfair to Caster to be singled out like this it is the most fair for women’s sport. Women’s sport is a protected category- it has to be. The best man will always beat the best women. Men have a physiological advantage. As others have said, Caster is not XX, she has a Y chromosome and produces male levels of testosterone. It is not fair to XX women to compete against her. She does not fit in that protected category.

While I am a female runner I am not an elite runner, I can only imagine how frustrating it is to train and know you can never beat this person. While it is true that the best athletes do have genetic advantages Caster’s advantage goes beyond this.

Caster deserves kindness and sympathy but in the end women’s running needs to be preserved as a protected field. This decision is the most fair.

For anyone who is interested in the actual ruling of July 29, 2019, rather than yet another rehash of arguments about the propriety of various regulations within the sport, here it is:

https://www.bger.ch/ext/eurospider/live/de/php/aza/http/index.php?lang=de&type=highlight_simple_query&page=1&from_date=&to_date=&sort=relevance&insertion_date=&top_subcollection_aza=all&query_words=4A_248%2F2019&rank=1&azaclir=aza&highlight_docid=aza%3A%2F%2F29-07-2019-4A_248-2019&number_of_ranks=1

Here is an English translation of the conclusions of law and orders (that is, excluding the factual and procedural background sections):

Legal :

1.

As a general rule, an appeal in civil matters does not have suspensive effect (art.103 (1) of the French civil code). However, the investigating judge may, ex officio or at the request of a party, decide differently on the suspensive effect (art.103 (3) of the criminal code). Under art. 104 LTF, the investigating judge may, on his own motion or at the request of a party, order the provisional measures necessary to maintain the state of affairs or to safeguard endangered interests. In order to give a decision on the suspensory effect or the granting of provisional measures, the examining judge must weigh the interests involved and ask himself, in particular, whether the contested decision is likely to cause irreparable damage to the appellant. He must also speculate as to the chances of success of the appeal.

The practice of the Federal Court is strict with regard to the requirements to which the grant of suspensive effect, or the granting of provisional measures, is subject in international arbitration. As a result, the suspensive effect is granted, or the provisional measures are ordered, as a general rule, only if it appears from a preliminary summary examination of the case that the appeal is very likely to be well founded (Presidential Order of 27 September 2018 in case 4A_318/2018; Presidential Order of 7 November 2016 in case 4A_624/2016).

2.

In her statement of appeal, the appellant complains exclusively of a violation of substantive public policy (art.190 (2)). E LDIP).

An award is incompatible with public policy if it disregards the essential and widely recognized values which, according to the prevailing views in Switzerland, should form the basis of any legal order (ATF 144 III 120 consid. 5.1; ATF 132 III 389 considered. 2.2.3). An award is contrary to substantive public policy when it violates fundamental principles of substantive law to such an extent that it cannot be reconciled with the legal order and the system of determining values (ATF 144 III 120 consid. 5.1). It is not sufficient that a ground chosen by an arbitral tribunal is contrary to public policy; it is the result of the award that must be incompatible with public policy (ATF 144 III 120 consid. 5.1). The incompatibility of the award with public order, referred to in art 190 para 2 let. E LDIP, is a more restrictive concept than that of arbitrariness (ATF 144 III 120 consid. 5.1; decisions 4A_318 / 2018 of 4 March 2019 consid. 4.3.1; 4A_600 / 2016 of 29 June 2017 consid. 1.1.4). The setting aside of an international arbitral award on this ground of Appeal is a rare occurrence (ATF 132 III 389 consid. 2.1).

It should be recalled that the Federal Court cannot be equated with the court of Appeal, which would oversee the CAS and freely verify the validity of the decisions on international arbitration handed down by this judicial body-a veritable independent and impartial arbitral tribunal (judgment of the CourEDH, Mutu and Pechstein v. Switzerland of 2 October 2018) - specializing in the settlement of disputes relating to sport and enjoying full powers of review. This is not the role of the Supreme Judicial Authority of the country when faced with an appeal within the meaning of art. 77 para. 1 LTF, in which the incompatibility of the contested award with public policy is invoked, as is apparent from the definition of that concept (case 4A_116/2016 of 13 December 2016, consid. 4.2.3; 4A_604 / 2010 of 11 April 2011 consid. 3.2.1; 4A_458/2009 of 10 June 2010 considered. 4.4.2).

While the particularities of sports arbitration have certainly been taken into account by federal case law in dealing with certain specific procedural issues, such as the waiver of recourse (ATF 133 III 235 consid. 4.3.2.2 P. 244), it does not follow, however, that the same must be done with regard to the plea of a general nature alleging incompatibility of the award with substantive public policy, unless a genuine lex sportiva is created by the Praetorian route, which could raise problems from the point of view of the division of powers between the legislative and judicial branches of the Confederation, since the Legislature has not adopted specific rules on sports arbitration (judgments 4A_312/2017 of 27 November 2017, consid. 3.3.2; 4A_116 / 2016 of 13 December 2016 consid. 4.2.3; 4A_488/2011 of 18 June 2012, consid. 6.2).

4.

In the light of these rules and principles, in the context of the power of review enjoyed by the Federal Court in an appeal in international arbitration matters, it cannot be said, prima facie, from reading the statement of grounds of Appeal, that the contested award - and in particular the findings, based on the opinions of the experts, which are binding on the court of céans (see Supra letter b. B. d) - and the respondent's determinations will most likely have to be accepted.

3.1. The appellant first alleges a violation of the principle of the Prohibition of discrimination. The allegedly inadmissible differentiation is based on a regulation issued by a private law association. It is doubtful whether the prohibition of discriminatory measures falls within the scope of the restrictive concept of "ordre public" where discrimination is perpetrated by a private person and occurs in relations between individuals. On the assumption that this is the case, the complaint does not in any event appear, at First Sight, very likely to be well founded, since the CAS considered, after a thorough examination, that the rules of eligibility established by the DDS regulation did indeed create a differentiation based on legal sex and innate biological characteristics but constituted a necessary, reasonable and proportionate measure in order to guarantee the integrity of women's athletics and the defence of the "protected class" and to ensure fair competition.

3.2. Second, the appellant complains of a violation of her rights of personality and human dignity, invoking, inter alia, various treaty guarantees.

It should be recalled that, in several judgments, the Federal Court has held that the European Convention on Human Rights does not apply directly to arbitration. Indeed, the violation of the provisions of this convention does not count among the complaints exhaustively listed by art. 190 (2) of the LDIP (judgments 4A_178 / 2014 of 11 June 2014, consid. 2.4; 4A_370/2007 of 21 February 2008, consid. 5.3.2).

It is difficult to discern from the appellant's written submissions how her criticism of the sentence would be sufficient to demonstrate the very likely justification for a breach of public order arising from an infringement of the rights of personality or human dignity.

Moreover, it is not clear that the situation of the appellant is comparable to that of the Brazilian footballer Matuzalem, who was threatened with an unlimited suspension of all football activities if he did not pay compensation in excess of EUR 11 million, plus interest, to his former club at short notice (ATF 138 III 322).

4.

Since the condition that the appeal is most likely well founded has not been fulfilled, there is no need to consider whether the award is likely to cause irreparable harm to the appellant.

In view of the above, the request for suspensive effect and provisional measures is rejected.

For the same reasons, the request of the interested party to suspend the DSD regulations in respect of all the athletes concerned shall also be rejected to the extent of its admissibility.

The Presidential Order of 31 May 2019 requiring the respondent, in a superprovisional capacity, to suspend the implementation of the DDS regulation in respect of the appellant is revoked.

For these reasons, the Chairperson orders :

1.

The Presidential Order of 31 May 2019 is revoked.

2.

The appellant's request for interim measures and suspensive effect is rejected.

3.

The application by the interested party for suspension of the DSD regulation with erga omnes effect shall be dismissed in so far as it is admissible.

4.

This order shall be communicated to the agents of the parties and to the Court of Arbitration for Sport (CAS). The respondent, the interested party and CAS simultaneously receive a copy of the appellant's observations of 12 July 2019 and its annexes (act. 40/41).

Here is a press release from the court, summarizing the ruling in English:

https://www.bger.ch/files/live/sites/bger/files/pdf/en/4A_248_2019_yyyy_mm_dd_T_e_09_54_21.pdf

team Unruly Bush wrote:

doot doot wrote:

Grifter par excellence making a mockery of athletics behind the auspice of social justice.

Maybe some people think social justice is more important than running in circles

Social justice does not have anything to do with running in circles.

When you're a little older you will understand.

Fundamental for All wrote:

This will not deter me from continuing my fight for the human rights of all of the female athletes concerned.

Dorothee Schramm, the lawyer leading Semenya's appeal, added: "The judge's procedural decision has no impact on the appeal itself. We will continue to pursue Caster's appeal and fight for her fundamental human rights. A race is always decided at the finish line."

The ironic part is that semenya is not female- she is xy- a chromosomal male.

?????????? wrote:

https://www.bbc.com/sport/athletics/49169509

What a shame.

This may be sad news for Caster Semenya, but good news for Shannon Rowbury, who said:

"I think it challenges and threatens the integrity of women’s sports to have intersex athletes competing against genetic women,” said Shannon Rowbury, a U.S Olympian at 1,500 meters. “I think Caster is a wonderful person. I have nothing against her but I think we already have an established precedent of men’s sports and women’s sports and I think we have to honor that.

“Women have fought far too long to be able to even have the right to compete and now it’s being challenged by intersex and trans athletes and I don’t think that’s right.”

https://www.ocregister.com/2016/07/31/caster-semenyas-olympic-dream-a-topic-of-controversy/

Is it right to take away what females have worked for to benefit intersex athletes?

Caster Semenya could compete with the men, but she'll think this is unfair, because men are faster than her. But she is faster than women, so having her compete with all females isn't fair either. There should be separate races for intersex athletes. That way, females will compete against females, males will compete against males, and intersex athletes will compete against intersex athletes. That would make it fair to all.

Charlesvdw wrote:

Semenya is an XY person with testosteron-producing testes and external female genitalia.

She is not not a woman. She is not a man. She is intersex.

It wouldn't be fair to let her compete in the women's 800m.

Isn' that the very definition of a hermaphrodite?

Know anyone with it or Klinefelter syndrome?

Any intersex races would likely be comprised of one or no athletes at all competing in it. If someone did show up to compete it would be an unwelcome disruption in the meet. Could you imagine two intersex athletes running a 10000?

Viewers would change the channel.

It would be about as interesting as race walking or ultra running.

Also, you'd have the same arguments as now, she is more male than me so should be banned, so then you'd have two 10k's with only one runner.

Another commenter got me thinking about the degree/proportion to which Caster’s dominance is hormonal versus rigorous training. Unsure of how to evaluate such a quandary, I looked up a “random” sample of elite male and female 800m runners’ height and weight. (Naturally there are physical outliers like Rudisha (and Bolt, for example) that obviously do well despite non-traditional physiques.)

Per Wikipedia:

— Caster Semenya is listed at 5’-10” and 154 pounds (2.2 lbs/inch)

— Nigel Amos is listed at 5’-10.5” and 132 pounds (1.87 lbs/inch)

— Melissa Bishop is listed at 5’-8” and 123 pounds (1.81 lbs/inch)

— Taoufik Makhloufi is listed at 5’-9” and 154 pounds (2.23 lbs/inch)

— Ajee Wilson is listed at 5’-8” and 135 pounds (1.99 lbs/inch)

— Clayton Murphy is listed at 5’-11” and 150 pounds (2.11 lbs/inch)

— Sebastian Coe is listed at 5’-8.5” and 119 pounds (1.74 lbs/inch)

Makhloufi edges out Semenya as the “heaviest” runner of the sample but has a ~12-second faster 800m PR. Maybe this isn’t a fair comparison because Makhloufi is pretty stout by middle distance standards.

At the risk of being labeled a “fat-shamer” does anyone else think maybe Semenya was leaving seconds on the track by carrying all that extra muscle? Or maybe that extra muscle gave Semenya the edge over women like Bishop and Wilson? In any event it’s beyond dispute that Caster Semenya put EVERYTHING into training to beat the best in the field ... .. .

New York Times specifically says she has X and Y chromosomes.

To Op...it's not sad news it's justice.

Heck if Pamela Jelimo wouldnt got big headed and content and stopped training Caster wouldn't never became a piint of discussion.

This is a tough one to speculate on wrote:

SDSU Aztec wrote:

Any intersex races would likely be comprised of one or no athletes at all competing in it. If someone did show up to compete it would be an unwelcome disruption in the meet. Could you imagine two intersex athletes running a 10000?

Viewers would change the channel.

Good point. What if intersex and transgender athletes ran with either the males or females, but were awarded separate medals? (This would be similar to road races, where men, women, wheelchairs, master runners, etc. may all start together, but are given separate awards for each group.)

For example, in the 2016 Olympic Women's 800m final, the top 3 finishers, who were all intersex, were given medals, while the top 3 genetically female finishers (Melissa BISHOP, Joanna JOZWIK, and Lynsey SHARP) got nothing. Seems like they could have awarded the top 3 intersex athletes their own medals, and the top 3 genetically female finishers their own medals. Better than the top 3 females going home devestated.

I'm more interested in finding out will Bekele be entering the World Championships but I can't find out anything. Does anyone know?

noone but basementers will care now wrote:

OP headline is wrong way around: the World Champs will miss Caster

+1. Track is doomed to be a sideshow if there's no gender angle for newsworthiness.