The process has been messy and confusing, but it has now turned against Semenya
By Amby Burfoot
August 2, 2019
If the long, drawn-out battle between the IAAF and Caster Semenya were a baseball game, we’d be in the bottom of the ninth now. Semenya at bat. Trailing by…let’s just say, a lot of runs.
On July 29, the Swiss Federal Supreme Court revoked its earlier super-provisional order (May 31) that allowed Semenya to continue competing in 800-meter races. The Court expressly “dismisse[d] Caster Semenya’s request for the provisional suspension of the DSD Regulations.”
In other words, we may have witnessed Semenya’s last international 800-meter race, unless she reverses her stated position that she won’t again take testosterone-lowering pills as she did from late 2009 through July 2015. (For the record, her last 800 was her winning 1:55.70 at the Prefontaine Classic on June 30.)
It also means that Semenya will not be able to compete at this fall’s World Championships, which begin on September 27 in Doha, Qatar.
However, the game is not over yet. Semenya’s still got a final swing at the Swiss Court, which now moves forward to hear her “case on the merits.”
As with all aspects of this astonishingly complex and convoluted story, the most recent Swiss “interlocutory order” (the July 29 decision) leaves many track fans confused and bewildered. What just happened? What next? How long is this going to drag on? Here are some answers, presented in FAQ form.
How did the Swiss Supreme Court get involved? Wasn’t the Semenya case concluded when the Court of Arbitration for Sport reached its April 30 ruling that required hormone therapy for XY DSD athletes like Semenya?
Not quite. While CAS is considered a sort of “Supreme Court for sports,” it’s based in Lausanne, Switzerland, and thus falls under Swiss legal jurisdiction. That gave Semenya’s lawyers another path: They could appeal to the Swiss Federal Tribunal, the country’s supreme court.
According to CAS spokesperson Katy Hogg, a total of 210 CAS decisions have been appealed to the Swiss Court in the last 35 years. Only 10 of those appeals were upheld, mostly on jurisdictional grounds. Three appeals were partially upheld.
Those are long odds. So Semenya’s appeal was never very likely to succeed?
Correct. Especially since IAAF and Semenya’s lawyers agreed from the outset that CAS was the right place (jurisdiction) for their arguments. That left Semenya’s legal team with only one other avenue to follow. They could argue, and likely have, that the CAS decision against Semenya violated the Swiss legal principle of “public order.”
As the French would say, “l’ordre public.” In loose translation, l’ordre public is the sum of all moral and cultural values that bind a society together. Human rights, for example. CAS ruled that Semenya was being discriminated against by the DSD regulation, but that the discrimination was “necessary, reasonable and proportionate” to give a fair chance to the vast majority of non-DSD women. Semenya’s attorneys are likely arguing that her human rights have been violated in some manner forbidden by established Swiss law, l’ordre public.
At first it seemed like Semenya was winning in the Swiss Court, right?
Yes, it might have seemed that way. But the “victories” were not legally meaningful. In late May, Semenya’s team made an “ex parte” (one side only) request that the Swiss Court issue a temporary restraining order against the IAAF’s DSD regulation. The Court agreed to the “super- provisional” (very short-term) order. Score a point for Semenya. She got to enter the Pre Classic.
Two weeks later, the Court denied the IAAF’s appeal that the super-provisional order be lifted immediately. This seemed another point for Semenya. Her fans started to get very excited, imagining that she would become eligible for this year’s World Champs and next year’s Olympics.
The thing is, these were both essentially pro forma decisions. They didn’t carry a lot of significance.
All the while, the Swiss Court was evaluating arguments from both sides with regard to the super-provisional order. On July 29, the Court issued its actual, deliberative decision: The super-provisional order of May 31 was revoked. This meant that Semenya was no longer cleared to compete in any international meet in the DSD-restricted events.
Up to now, the Swiss Court has been exclusively occupied with the question of suspending the IAAF’s DSD rule (letting Semenya run), or not letting Semenya run. Now it will move on to a hearing of the full Semenya appeal to the CAS decision. In legal terms, it will consider the “case on the merits.”
That’s what brings us to the bottom of the ninth. Why? Reviewing the CAS decision “on the merits” sounds very broad and far-reaching. Actually, it’s not.
The Swiss Court on July 29 expressly stated that “its power of review in cases of international arbitration is very limited.” In fact, there’s a lot of old news that the Court will not be re-evaluating. Specifically, it’s not going to reconsider testosterone science. Whether you like it or not, that ship has sailed.
And it’s not going to consider jurisdictional questions — the main issue behind most prior CAS reversals by the Swiss Court. (See Katy Hogg above.)
Finally, the Court is not going to review CAS’s “necessary, reasonable, and proportionate” finding with regard to discrimination against athletes with DSDs. That allowance for discrimination holds true in Swiss law as in U.S. law.
The Swiss Court is likely to take four to six months before it issues its final decision.
So what’s left for Semenya’s legal team?
Not much, which is why it’s bottom of the ninth, with Semenya trailing by a lot of runs. Her attorneys will likely argue every conceivable violation of human rights. For example, they’ll probably put forth the gender proposition: if you were identified female at birth, raised female, and believe you are female, then you should be considered female in all dominions, no matter what your physiology and your hormone status. There are certainly some who believe this proposition, but it has failed to gain widespread legal support.
Or they’ll say Semenya is being deprived of her human right to compete in sports. This passes one test: it’s generally agreed that all have a human right to exercise and play sports. But that’s not the same as the right to compete as a female at the World Championships and Olympics. By current agreement, sports federations have the power and responsibility to make rules appropriate to their sports. That’s what IAAF has done, now with CAS approval, in establishing the DSD regulation.
At any rate, the Swiss Court has already shown its hand. The July 29 order against Semenya concludes as follows: “Neither the allegation of an infringement of the principle of non-discrimination, nor the alleged violation of ‘ordre public’ due to an infringement of their personality and human dignity appears with high probability to be well founded” (emphasis theirs).
In other words, the Court doesn’t think Semenya has a winning case. This is the language of a “summary examination,” not a decision based on the full, upcoming consideration. But it is telling.
Semenya herself tweeted, cryptically: “First chapter of my life done, looking forward to my second chapter.”
Does Semenya have any appeals possibilities beyond the Swiss Federal Tribunal?
Yes. She can appeal human rights issues to the European Court of Human Rights in Strasbourg, France. These cases move slowly, often taking years. In “exceptional cases,” the European Court can issue a temporary order that would allow Semenya to compete while the larger issues are being resolved.
What about transgender male-to-female athletes?
Neither the CAS decision nor the Swiss Court deliberations relate directly to the transgender issue. But it is looming. The International Olympic Committee and many other sports organizations are awaiting the final outcome of the Semenya case before they tackle the bigger (higher frequency in the normal population) transgender question. The IOC already requires transgender women to lower their testosterone to below 10 nmol/L; it is expected to further lower this limit to 5 nmol/L to line up with the IAAF’s XY DSD regulation.
Thanks to Swiss sports law attorney Philippe Boss and American sports law expert Doriane Lambelet Coleman for their help. Any mistakes above are mine, not theirs.–AB
Amby Burfoot won the Boston Marathon in 1968, and has been writing about track and road races since 1978.