The Swiss Federal Tribunal issued a statement detailing its order of 30 July, reinstating the IAAF regulations on women with “differences in sex development.”
While the order itself only reinstates the IAAF’s rules until the court decides on the appeal of South Africa’s twice 800 m Olympic champ Caster Semenya, the statement indicates that her appeal has little chance of winning.
The statement explains that the Swiss court’s jurisdiction over arbitration cases is limited “and, as a general rule, only involves examining whether the contested decision is compatible with fundamental principles of public order.” Then came the active paragraph, broken up below for easier reading:
“On this basis, the Swiss Federal Supreme Court concludes, in a first summary examination, that Caster Semenya’s appeal does not appear with high probability to be well founded. The CAS, after thoroughly evaluating the expert evidence, found that the “46 XY DSD” characteristic has a direct impact on performance in sport, which could never be achieved by other women.
“Thus, with the participation of a female athlete with ‘46 XY DSD’ in the ‘protected class women’, a basic principle of top-class sports, namely fair competition, is disregarded from the outset. The Swiss Federal Supreme Court is bound by this finding regarding the impact of ‘46 XY DSD’ on performance. In the light of the arguments put forward by the CAS after extensive and thorough examination, namely the integrity of female athletics, 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. For the same reasons, [Athletics South Africa]’s request must also be dismissed.”
It must be stressed, this isn’t a final order, but the Court’s reaction after a close read of the Court of Arbitration for Sport decision.
The statement gave no indication of when Semenya’s appeal will actually be decided, so Semenya and others in her situation, including Rio silver medalist Francine Niyonsaba (BDI) and Kenya’s bronze medalist, Margaret Wambui, must comply with the IAAF’s regulations. That means all three are out of the upcoming IAAF World Championships in Doha starting on 28 September.
In terms of the 2020 Tokyo Olympic Games, with the opening on 24 July, these athletes and any others in the same situation would have to be shown to be within the regulated testosterone range by 24 January of 2020, or about five months from now.
It is certainly possible that the Court could change its mind again, but it is now signaling, quite clearly, that this is not likely.
Semenya has been busy on Twitter and sent her own view of the developments: