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≡ SEMENYA vs. SWITZERLAND ≡
The Grand Chamber of the European Court of Human Rights gave a major victory to the Court of Arbitration for Sport on Thursday, with a minor win for South Africa’s two-time women’s 800 m Olympic champion Caster Semenya.
The headlines over Semenya vs. Switzerland were primarily about Semenya, the 2012 and 2016 Olympic women’s 800 m gold medalist, who filed an action against World Athletics (then-IAAF) and its regulations for athletes with “Differences in Sex Development” in 2018 with the Court of Arbitration for Sport (CAS). Then:
● CAS rejected the case in a lengthy opinion in April 2019, with the outcome summarized as:
“[T]he majority of the Panel accepts that the IAAF has discharged its burden of establishing that regulations governing the ability of female athletes with 46 XY DSD to participate in certain events are necessary to maintain fair competition in female athletics by ensuring that female athletes who do not enjoy the significant performance advantage caused by exposure to levels of circulating testosterone in the adult male range do not have to compete against female athletes who do enjoy that performance advantage.”
● Semenya appealed to the Swiss Federal Tribunal in May 2019, which decided in August 2020 that it “dismissed the appeal, concluding that the impugned award was not incompatible with substantive public policy.”
● Semenya then filed an appeal with the European Court of Human Rights in May 2021, summarized as:
“It would therefore appear that, as formulated in her application, the applicant’s complaint, based without distinction on Article 6 § 1 and Article 13, concerns the alleged insufficiency of the Federal Supreme Court’s review of the CAS award.”
● In July 2023, a deeply-divided ECHR ruling held for Semenya in one area:
“The Court found in particular that the applicant had not been afforded sufficient institutional and procedural safeguards in Switzerland to allow her to have her complaints examined effectively, especially since her complaints concerned substantiated and credible claims of discrimination as a result of her increased testosterone level caused by differences of sex development (DSD).”
● Switzerland appealed in October 2023, asking for a Grand Chamber hearing in front of a panel of 17 judges. A hearing was held on 15 May 2024 and the decision was issued on Thursday.
So, in terms of Semenya’s continuing complaint that the World Athletics rules on limiting testosterone levels of women with biologically high levels are unfair, the Grand Chamber held by 15-2:
“229. It would therefore appear that although the CAS expressed very serious concerns, thereby rendering ambiguous its reasoning in relation to proportionality, the Federal Supreme Court conducted only a limited review of this aspect of the award.
“230. It is thus apparent that the examination of this fundamental and detailed aspect of the applicant’s dispute by the Federal Supreme Court, within its competence to review the compatibility of the award with substantive public policy, was not subjected to the particularly rigorous examination called for by the circumstances of the case. …
“238. In sum, the specific characteristics of the sports arbitration to which the applicant was subject, entailing the mandatory and exclusive jurisdiction of the CAS, required an in-depth judicial review – commensurate with the seriousness of the personal rights at issue – by the only domestic court having jurisdiction to carry out such a task. The review of the applicant’s case by the Federal Supreme Court, not least owing to its very restrictive interpretation of the notion of public policy, which it also applied to the review of arbitral awards by the CAS, did not satisfy the requirement of particular rigour called for in the circumstances of the case. In these circumstances, the Court concludes that the applicant did not benefit from the safeguards provided by Article 6 § 1 of the Convention [for a fair and public hearing].”
So, the Swiss Federal Tribunal is now required to take a “more rigorous look” at the reasonableness of the World Athletics DSD regulations. That is going to be more difficult now:
(1) The World Athletics rules have changed and become even more stringent;
(2) There is new research on the topic, which would impact the finding made by the Court of Arbitration for Sport back in 2019.
But the wheels are in motion, and a new process will be required for the Swiss Federal Tribunal. How it will approach this is anyone’s guess. It is worth noting that the discussion in the CAS decision was on Semenya’s complaint of unfair treatment; an equally-compelling discussion could also be had on the rights of normal-testosterone-level women competing against Semenya and others with differences in sex development.
Semenya’s other complaints on the World Athletics regulations, as torture or degradation, and interfering with her right to a private life, were dismissed.
Semenya did not ask for damages in the case, but required expenses of €482,514 (~$564,013 U.S.), which was seen as excessive. A grant of €80,000 (~$93,512 U.S.) was made.
¶
While this case was important for Semenya and others in her (DSD) class, it had other very important aspects.
One was that this was NOT a transgender case, for which World Athletics is currently in the process of issuing new regulations with a sex-screening test (a cheek swab) to be mandatory instead of testosterone measurements. The International Olympic Committee is also to be re-engaged on this issue, to “protect the female category.”
Second, this was a critical win for the Court of Arbitration for Sport, and the sports arbitration system, as the Grand Chamber did not touch the very limited grounds for review of CAS decisions by the Swiss Federal Tribunal. From paragraph 130:
“The Court notes that it follows from section 77(1) of the Federal Supreme Court Act and section 190(2) PILA that, in the area of international arbitration, Swiss law provides for a civil-law appeal to the Federal Supreme Court against awards of arbitral tribunals which have their seat in Switzerland.
“Such appeals allow for not only an assessment of whether the awards comply with certain procedural requirements, but also for a substantive review of whether they are compatible with public policy within the meaning of section 190(2)(e) PILA (public policy within the meaning of that provision having both a procedural and a substantive aspect.”
The Grand Chamber respected the Swiss law in regard to the limited jurisdiction of the Swiss Federal Tribunal on CAS appeals, and did not force a revision that would have opened a flood of appeals in normal course from CAS decisions.
Ultimately, that will be one of the key holdings on this case, although in the background of the higher-profile Semenya case, which – after seven years – continues.
¶
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