Noted sports attorney Emir Crowne has declared that the Court of Arbitration for Sport’s (CAS) ruling against two-time Olympic champion Caster Semenya is a “dangerous intrusion into the personal autonomy and bodily integrity for any sporting body to regulate the natural physiology and biochemistry of an athlete.”
He is of the view that it should be “struck down.”
Crowne, who sits on International Panel of Arbitrators and Mediators, Sport Resolutions, was expressing his personal views on the matter after the CAS Arbitration Panel unanimously found the IAAF Eligibility Regulations for Female Classification (Athletes with Differences of Sex Development) (the “DSD Regulations”) to be discriminatory.
However, the panel split 2-1 in finding that “such discrimination is a necessary, reasonable and proportionate means of achieving the IAAF’s aim of preserving the integrity of female athletics…”.
Put simply, Dr Crowne said, the DSD Regulations mandate that female athletes with naturally elevated levels of testosterone reduce their testosterone level to less than five nanomoles per litre. The reduction, according to the IAAF, can be achieved through oral medication.
“Calling it a ‘slippery slope’ would be too kind. It is a sharp cliff,” Dr Crowne said.
“If we start with regulating women’s testosterone, do we then move on to athletes with naturally elevated creatine levels or red blood cell counts? Do we pass a rule banning children with scoliosis from competing due to health and safety concerns?
“I’m certain that the IAAF, or any other well-meaning sporting body, could find “scientific” evidence to demonstrate the possible harm to a child’s development if they were allowed to train and compete with scoliosis. It would all be done in “good faith” with the commendable goal of protecting the rights of the child.”
He suggested that there could even elements of racial bias in the IAAF’s policy that Semenya challenged.
“Like rule changes in any sport (cricket being a notable example), the DSD regulations – which only apply to female athletes competing in the 400m to 1-mile events at international competitions – are presented as being ‘formally’ neutral. Substantively, however, the regulations target Caster Semenya and Francine Niyonsaba: two black women.”
“So where does this leave us?” he asked.
“Despite its laudatory name, the “Court” of Arbitration for Sport is not a Court. It is a private arbitration body.
“Decisions of CAS are appealable to the Swiss Federal Tribunal. Appeals are generally limited to breaches of procedural fairness, natural justice or public policy (which includes a prohibition against discrimination). That prohibition (against discrimination) is said to be limited to instances involving “sex, race, health condition, sexual preference, religion, nationality or political opinions”. The DSD Regulations directly discriminate on the basis of health condition, and substantively discriminate on the basis of sex and race. If appealed, I am unsure how such regulations could be upheld.”
In sum, Dr. Crowne reasoned, the DSD Regulations directly discriminate on the basis of health, indirectly discriminate on the basis of sex, indirectly discriminate on the basis of race and directly intrude into an athlete’s life, liberty and security of the person.
“It is a terrible policy tainted with illegality that must be struck down,” he concluded.
