Intersex Runner’s Loss at Swiss Court Does Not End Anti-Discrimination Fight

Since Jackie Robinson broke the color line in Major League Baseball in 1947, sport has been an important vehicle to fight discrimination. That fight is continuing today for intersex individuals, i.e., those born with characteristics of both sexes. Olympic track gold medalist Caster Semenya, of South Africa, is such a person. She was classified as female at birth, was raised as a woman, and achieved tremendous success on the track competing as a woman.

Nonetheless, the organization governing international track and field, World Athletics, created regulations in 2018 prohibiting intersex runners from competing against females in middle-distance races if they had a testosterone level that World Athletics considered too high and they did not take hormones or undergo surgery to lower their testosterone to a level deemed acceptable by World Athletics.

There is no generally recognized medical standard of how much testosterone one must have to be classified as a male or female, and testosterone levels vary widely in both sexes.

Semenya challenged these regulations before the Court of Arbitration for Sport (CAS), a private organization headquartered in Switzerland. In 2019, she lost that arbitration in a 2-1 decision, and she then appealed to the Swiss Federal Supreme Court, which announced on Sept. 8 that it dismissed the appeal based on the limited grounds on which such judicial review is allowed.

Her anti-discrimination battle can continue, however, because the CAS decision that was affirmed by the Swiss appellate court expressly declined to rule on whether the World Athletics anti-intersex regulations would pass legal muster in the major jurisdictions of the world.

Swiss Court Has Very Limited Review Scope

The decision of the Swiss Court is not surprising because, as noted above, the Swiss court has a very limited scope of review. As the court’s press release states, it “cannot subject the CAS decision to any free legal control.” Its scope of review is limited to “whether the CAS decision violates fundamental and widely recognized principles of public order.”

This limited scope of review has had a major real-world impact: the Swiss court has reversed CAS only one time on this narrow ground.

Ironically, the narrowness of the Swiss court’s scope of review is helpful to Semenya. It is axiomatic that the appeals court cannot decide anything broader than what CAS decided; and what CAS decided is extremely favorable to Semenya on the main point of the case and is neutral with respect to the major jurisdictions of the world.

Affirmation She Is Female Matters in the U.S.

The main point of the case is that Semenya is female. Both CAS and the Swiss court have affirmed that she is a female. This affirmation is extremely significant in jurisdictions like the U.S., where gender discrimination has been strongly condemned by the courts. Just this past June, for example, the U.S. Supreme Court held that the firing of a transgender individual was illegal in that it was “because of sex.”

What CAS and the Swiss court did not decide is also extremely important to Semenya. Because World Athletics and Semenya could not agree on the law applicable to their case, CAS decided to apply the law of Monaco, where World Athletics is headquartered. As to other jurisdictions, CAS expressly declined to make a decision about her.

The CAS arbitration panel expressed gratitude to experts (of which I was one) on how different national laws would affect the World Athletics DSD Regulations concerning intersex individuals, but held that “it cannot come to a conclusion on whether or not the DSD Regulations would be found to be unenforceable in, or contrary to the domestic law of, different national jurisdictions.”

Underscoring that holding, CAS stated that whether the regulations in question were legal in an individual country outside of Monaco “will ultimately be a matter for the courts of the various jurisdictions to determine.”

Because these other jurisdictions are where almost all international track and field meets occur, the narrowness of the CAS and Swiss court decisions regarding intersex runners cannot be over-emphasized. The final decisions will be made by the courts of those countries, all of which have more developed anti-discrimination laws than Monaco.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

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Author Information

Ronald S. Katz, senior counsel at GCA Law Partners LLP, is a U.S. sports lawyer who was an expert witness on U.S. law for Caster Semenya in the case discussed above. He is a co-author of “Sport, Ethics and Leadership” (Routledge, 2017).