Last week, Olympic 800-metre champion Caster Semenya appealed a Court of Arbitration for Sport (CAS) ruling. The issue? CAS has agreed with her sport’s federation, the International Association of Athletics Federations (IAAF), that Semenya and other athletes with “differences of sexual development” (DSD) — which can cause high levels of natural testosterone — must subject themselves to medication to artificially lower testosterone levels if she wants to compete in IAAF-sanctioned women’s events, including the Olympics.
The issue is now before the Federal Supreme Court of Switzerland. According to her statement, Semenya is asking the Swiss court “to set aside the decision of the CAS in its entirety” and hinted at her team’s legal strategy of appealing to “fundamental human rights.”
On that count, Semenya should have plenty of support. The IAAF’s rules dealing with DSD athletes are not only based on controversial science but contravene World Medical Association medical ethics and human rights standards by providing that these otherwise healthy athletes “take unjustified medication, not based on medical need.” As noted by Canadian cyclist Kristen Worley, a trans athlete whose own health decisions were impacted by her international federation’s rules, “the health impact to the individuals is significant – I’ve lived it.”
Semenya draws the line at having to take hormone-lowering agents or having surgery to comply with IAAF regulations. As she succinctly states, “The IAAF will not drug me or stop me from being who I am.”
On the surface, this seems a painfully basic request. Semenya’s DSD-related hyperandrogenism is entirely genetic and we usually celebrate such natural advantages. We marvel at the fickle genes that blessed Toronto Raptor Kawhi Leonard with the abnormally long wingspan and mammoth hands that help him excel at basketball, not force him to surgically lop off his fingers. At best, it seems incongruous to force someone to dope to compete after an Olympics where the Russian state was rightfully castigated for forcing its athletes to do the same thing, albeit for differing ends.
So why has the World Anti-Doping Agency (WADA), the Montreal-based worldwide regulatory body ostensibly dedicated to “doping-free sport,” been conspicuously hushed about an international federation essentially forcing a competitor to dope?
Perhaps it’s because WADA’s mission has arguably been less about securing athlete health than justifying its own existence through spotty enforcement of its own byzantine rules and regulations. It could also be because half of WADA’s budget comes from the “the Olympic movement” — Olympic organizations, chiefly the International Olympic Committee (IOC), which traditionally openly boasts of a “close relationship” with the IAAF.
Tellingly, even while promising an investigation, IOC President Thomas Bach has already deferred on the topic to international federations like the IAAF given “it’s their rules that are involved, their technical regulations.” As such, it seems unlikely that WADA will feel compelled to support the rights of one athlete against the wishes of its main stakeholders.
Furthermore, it seems unlikely that other institutional stakeholders in the sports world will come to Semenya’s aid en masse. For those in the sports world, perhaps more significant than the proceeding itself is the fact that a member of the sporting community has chosen to challenge the very competency and objectivity of rulemaking bodies in sports, including CAS. For decades, CAS has engaged in nearly unfettered appellate decision-making in the world of sport with minimal intervention from national courts.
However, the power of CAS is not absolute and the Swiss Federal Supreme Court has overturned a CAS ruling on substantive grounds before. The court stood on its power to promote just public policy and found CAS’s decision prohibiting a player from competing professionally until he paid back his former club was “fundamentally unlawful” and “incompatible with the public order” because “[a]n unlimited ban from exercising his profession… constitutes a manifest and serious attack on the rights of the individual.”
It is entirely possible that the Swiss court again invokes public policy to find that CAS’s pro-IAAF decision constitutes a violation on Semenya’s individual rights. However, overturning arbitral awards is something that courts are always reluctant to do, and the outcome of Semenya’s case is far from certain.
Luckily, concerned sports viewers have a larger voice than they realize to make themselves heard on this issue – and that leverage comes from the other half of WADA’s funding source. National governments share equal responsibility with the Olympic movement for keeping the organization afloat. Rich governments, like Canada’s, contribute an outsized share of the contribution by national governments.
This means that our politicians have persuasive power in securing athlete rights and health. Money talks, as the adage goes, and maybe reminding WADA of our values while cutting our cheque would help their bureaucrats act like representatives of an international regulatory body meant to protect athletes, not merely enforce the whims of international federations. And whatever the Swiss judicial decision, we should no longer be content with the status quo, where European courts narrowly review closed arbitral awards – especially when such cases touch on fundamental and international human rights.
Just as sport reveals character, what we allow organizations to do to those who are different reveals who we are as a society. We shouldn’t just be spectators.
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