On 11 July 2023, the ECtHR found in its Chamber judgment in Semenya v. Switzerland (English summary see here) that international-level athlete Mokgadi Caster Semenya had been discriminated against by the Eligibility Regulations for Female Classification (‘Athlete with Differences of Sexual Development’, ‘DSD Regulations’) of the International Association of Athletics Federations (IAAF, now World Athletics). These regulations required her to undergo hormone treatment to lower her natural testosterone levels in order to be admitted to international competitions in the female category. In the Chamber’s view, Switzerland had violated the Convention by failing to provide sufficient institutional and procedural safeguards to enable Ms. Semenya to have her discrimination complaints effectively examined. Prior to the Strasbourg ruling, the Court of Arbitration for Sport (CAS) and the Swiss Federal Tribunal (SFT) had dismissed her complaint (see here and here).
The Chamber’s decision is noteworthy for several reasons. Among them is the fact that the ECtHR takes a human rights-based stand on one of the ‘big issues in athletics’ – that is discrimination related to gender and sex. Moreover, the Chamber clarifies the enforcement of human rights protection in the framework of sports law. In doing so, it does not rely on an overly broad interpretation of its own jurisdiction, as criticised in the dissenting opinion. Rather, it consistently applies the state’s positive obligation to ensure human rights protection to the specifics of sports law. The judgment might be referred to the Grand Chamber (GC) of the ECtHR. If the GC upholds the Chamber’s findings on jurisdiction and scrutiny, the Semenya judgment will have a significant impact on the human rights approach of sports federations and on future CAS proceedings.
Gender and Sex as ‘the big issues in athletics’
On a substantive level, the judgment tackles the question of how to deal with women who do not correspond to the perceived concepts of womanhood in women’s sports. In 2018, IAAF issued new DSD Regulations for races from 400 meters to one mile requiring any athlete whose levels of circulating testosterone are five nmol/L or above and who is androgen-sensitive to meet a set of criteria in order to be eligible to compete in so-called ‘Restricted Events’ like the Olympics and world championships: the athlete must be recognised at law either as female or as intersex (or equivalent), she must reduce her blood testosterone level to below five (5) nmol/L for a continuous period of at least six months, and she must maintain this blood testosterone level continuously for so long as she wishes to remain eligible. The applicant before the ECtHR, Mokgadi Caster Semenya, refused to comply with these conditions.
Caster Semenya’s position is crystal clear, when she states: ‘I am Mokgadi Caster Semenya. I am a woman and I am fast.’ From her standpoint, forcing some women without health complaints to undergo hormone treatment to lower their naturally-occurring levels of testosterone not only lacks support from the available science and provokes negative side effects. In this vein, medical experts warned that the IAAF’s testosterone rule for female athletes ‘risks setting an unscientific precedent’, since the medical profession ‘does not define biological sex or physical function by serum testosterone levels alone.’ Moreover, Caster Semenya experienced the DSD Regulations as an unjustified discrimination against her on grounds of sex as compared to male and female athletes with no DSD, as well as a breach of her human dignity and personality rights. World Athletics, by contrast, considers itself a guardian of ‘equal rights and opportunities for all women and girls in our sport today and in the future’. While World Athletics claims to support the social movement to have people accepted in society based on their chosen legal sex and/or gender identity, it ‘is convinced there are some contexts, sport being one of them, where biology has to trump identity.’
In contrast to the CAS and the SFT, the Chamber found that the applicant’s right not to be discriminated (Article 14 ECHR) taken together with her right to respect for private life (Article 8 ECHR) had been violated on account of her DSD. The Chamber also found a violation of the right to an effective remedy within the meaning of Article 13 of the Convention. The decisive factor for the Chamber was that the CAS had left open serious questions regarding the empirical validity of the DSD Regulations, namely the side effects of hormone treatment; the possible inability of athletes to comply with the DSD rules; and the lack of evidence that athletes with 46 XY DSD actually do have a significant athletic advantage in the 1,500 and 1-mile runs. Thus, even if World Athletic’s aim to ensure fair competition by means of the DSD Regulations is legitimate as such, the ECtHR challenged as to whether the Regulations are actually the suitable measure for achieving this aim.
Enforcing the ECHR in ‘the whole world of sports’? Switzerland’s responsibility to control the CAS
In our case at hand, ‘the ECtHR’ means four judges finding a violation of the ECHR. For the three dissenting judges, this outcome amounts to an earthquake for the relationship between sport and human rights. In their dissenting opinion, they point to the particularities of the case, namely the fact that the applicant was a South African, residing in South Africa, that it concerns measures adopted by the IAAF, a private organisation under Monegasque law – and that it was controlled by the CAS, which is neither a state court nor another institution of Swiss public law, but an entity set up under the auspices of the International Council of Arbitration for Sport, that is, a private-law foundation. The dissenting opinion claims that in finding that the Court has jurisdiction to apply the Convention on this type of case, the majority ‘considerably broadens the scope of the Court’s jurisdiction’, so that it covers the ‘whole world of sports’ (… la majorité élargit considérablement l’étendue de la compétence de la Cour, de sorte qu’elle couvre l’ensemble du monde sportif).
While the authors of the dissenting opinion argue that such an extension lacks the necessary solid legal foundations, I see the majority’s finding as the consistent application of the general concept of positive state obligations in the specific area of sport. CAS is based on Swiss territory, in Lausanne, and subject to Swiss jurisdiction. Swiss law provides for the jurisdiction of the SFT to control the validity of CAS awards. Due to the private nature of the alleged DSD Regulation and the CAS proceedings, there is no initial interference caused by Swiss state authorities at stake. Rather, the ECtHR has to consider whether Switzerland has fulfilled its duty to ‘do something’, which may require the adoption of measures aimed at protecting human rights in the relations between private actors under Swiss jurisdiction. Such measures may be regulatory or judicial. Specifically, the state has to provide institutional and procedural safeguards allowing the potential victim to effectively challenge the alleged measure. This concept generally applies in sports matters, as elaborated in the case of Platini v. Switzerland, and has been practiced in previous CAS-related case law of the ECtHR involving sports federations.
While the general concept of positive state obligations applies, these types of cases are special due to the role of CAS as an arbitral tribunal. Swiss law provides that, in principle, arbitral awards are not subject to strict legal scrutiny. Article 190 of the Swiss Private International Law Act (PILA) provides for an exhaustive list of grounds on which the award of an arbitral tribunal may be challenged. These concern the regularity of the composition of the arbitral tribunal, its jurisdiction to hear the dispute, the question of whether the tribunal ruled beyond the claims of the parties, and whether equality of arms was respected. Through this legal ‘bottleneck’, which allows the SFT to control the procedural and jurisdictional setting of CAS proceedings, the most famous CAS case before the ECtHR to date, Mutu and Pechstein, had been measured against the standard of Article 6 ECHR.
The Semenya case is different. In this case, the SFT applied Article 190(2)(e) of the PILA, which provides that the tribunal has jurisdiction to control if the award is incompatible with the ‘ordre public’. The Chamber refers to this competence of the SFT and imposes on Switzerland the duty to review the CAS decision against the substantive standard of the prohibition of discrimination, including a detailed proportionality review. In the case at hand, this means that both the CAS and the SFT had the obligation to review an allegation of discrimination in light of the Convention guarantees and the relevant case law of the ECtHR. Judging by the ECtHR’s previous position on gender-based unequal treatment, the threshold was high: it included reference to ‘very weighty reasons’ on the part of the IAAF and a limited margin of appreciation on the part of Switzerland.
The crucial difference between CAS proceedings and ‘normal’ arbitration
This kind of strict human rights scrutiny goes beyond the usual spirit of Article 190 PILA, which does not intend to provide for a super-revision of arbitral awards but subjects arbitral awards to a limited review of compatibility with ordre public. As the SFT ruled in its Semenya judgment, this normally limits its control to the question whether the arbitral award disregards the essential and widely recognised values, which should form the basis of any legal system. The regular approach for the SFT would therefore be to ask whether the CAS has controlled the legitimacy of the objectives pursued by the IAAF regulation and practised any kind of proportionality control; this would not mean that the SFT would have the power to substitute the assessment of the CAS. This is what troubles the dissenting opinion, which criticises that this ‘new’ legal ‘bottleneck’ of ordre public control is used to enforce European human rights standards in sports matters with a global dimension.
However, the Chamber’s position is justified and timely. CAS proceedings are fundamentally different from commercial arbitration. Athletes are not subject to CAS out of economic interest, in order to expedite the proceedings in case of conflict or due to the arbitrators’ expertise on the subject-matter. They do not accept as a consequence of their free choice a lesser level of legal protection by the state. They agree to compulsory CAS arbitration because this is a mandatory requirement for their professional practice. CAS proceedings relate to rules and measures of sports federations that, as elaborated before, organise themselves with a state-like regulatory power and organisational structure. Compared to the ‘normal case’ of commercial arbitration (see e.g. Beg S.p.a. v. Italy), stricter standards are justified in an ordre public control carried out by the SFT vis-à-vis the CAS. Such a review must go beyond the mere control of fair trial principles under Article 6 of the Convention. Thus, the majority of the Chamber is right in pointing to the compulsory nature of arbitration, which deprived Caster Semenya of enforcing her human rights before an ordinary court on the one hand, and the severity of the alleged discrimination on the other, when imposing the obligation of strict scrutiny on Switzerland.
Consequences for CAS proceedings and sports federations
In its Semenya judgment, the SFT had exercised its ordre public control in light of the ECHR and referred to the Court’s case law, in particular in considering the IAAF’s aim of fair sport to be compatible with ECtHR jurisprudence – but had reached a different conclusion on the proportionality test than the Chamber. In contrast and unlike other CAS tribunals, the arbitrators of Semenya had rendered their decision without regard to any relevant human rights framework or case law (neither of the ECtHR nor of other human rights bodies). If the position of the Chamber is upheld in a potential GC proceeding, this will have to change significantly in future CAS proceedings. The ECtHR expects the CAS to interpret the lex sportiva in light of the ECHR. This expectation is enforced by reviewing if Switzerland fulfills its positive obligations to protect athletes’ human rights.
What does this mean for sports federations? At first glance, the judgment does not change much at the level of human rights doctrine. The Chamber confirmed its traditional approach that ECHR rights do not have a direct horizontal effect but oblige states to ensure real and effective protection against human rights violations of private actors. On a practical level, the Semenya judgment is a breakthrough for the importance of the ECHR in federations’ rule-making and sanctioning. Regardless of whether the federation in question has made an explicit human rights commitment (see, for example, here and there) or not, federations will have to apply the ECHR as the normative framework for their measures in order to avoid having them overturned in subsequent CAS proceedings to which this standard applies. This is, in fact, nothing else but acknowledging the human rights responsibilities of sports federations.