Caster Semenya. File photo: REUTERS/Ibraheem Al Omari
Caster Semenya. File photo: REUTERS/Ibraheem Al Omari

On Tuesday afternoon the highest court in Switzerland, the Federal Supreme Court — the highest legal authority over World Athletics (formerly the IAAF) — delivered the judgment we’ve spent a year worrying about and waiting for. This latest ruling prevents Caster Semenya from defending her 800m gold medal title at the Tokyo Olympics in 2021, unless she lowers her testosterone levels.

Five European judges in Lausanne failed to set aside the discriminatory regulations that have created a dangerous precedent in sport for international athletes with “differences of sex development” (DSD), such as Semenya. The regulations, which require women athletes to chemically or surgically lower their testosterone levels, has created a moral and ethical dilemma that harms the human dignity of certain members of society. So much so that the World Medical Association (WMA) has called on physicians around the world to take no part in implementing the World Athletics regulations.

I was hopeful that those who have the power to determine whether women such as Semenya can compete freely in the international athletics arena would rescind the Court of Arbitration in Sport (CAS) ruling. Semenya’s appeal was an opportunity for the highest court in Switzerland to align its decisions with the growing international consensus that supports the protection of the human rights and dignity of such athletes, who face humiliation and discrimination for not being “female” enough.

Naturally, Semenya is disappointed, although she says while the door to her career may be closed it is not locked. She is grateful to have realised her double 800m Olympic and World Championship goals. She sees the decision as a loss more for World Athletics than for her. The international 800m field has now become weaker without her presence in defending her title.

As Semenya’s legal team we are considering all options for a legal fightback both internationally and domestically. The SA department of sport & recreation has put out a rallying call to support her and to review this week’s decision. As long as a sporting federation holds the power to force female athletes to undergo medically dangerous and invasive procedures, our work is not yet done.

We are encouraged by the growing tide of support on the issue of discrimination in sport. The ruling is out of step with reputable international organisations that have influence. In April 2019 the WMA stated that the World Athletics rules “constitute a flagrant discrimination based on the genetic variation of female athletes and are contrary to international medical ethics and human rights standards”.

Semenya also has the full support of the UN high commissioner for human rights who, in a June 2020 report titled “Intersection of race and gender discrimination in sport”, called on World Athletics to “review, revise and revoke” its eligibility rules. The report raises concerns that the regulations “effectively legitimise the surveillance of all women athletes based on stereotypes of femininity” and “single out a group of women athletes, putting them at risk of repercussions far beyond the inability to compete”.

Semenya has shared her mental resolve with me to fight on, which is exactly why she is one of the greatest stars of world athletics. It is she who made the 800m, not the reverse, and she will continue to do what she was born to do. She will not be forced to submit to dangerous medical procedures or undergo surgery to compete.

The sporting arena has always been political and former SA president Nelson Mandela understood its ability to unite people. In his famous Laureus Sports Awards speech he reminded the world: “Sport has the power to change the world ... Sport can create hope where there was once despair. It is more powerful than governments in breaking down racial barriers. It laughs in the face of all types of discrimination.” 

Until World Athletics’ rules and policies reflect Mandela’s ideals, we need to continue to challenge discriminatory policies that prejudice the human dignity and rights of certain members of society.

• Nott, a partner and director at Norton Rose Fulbright who heads its Africa practice, has been Semenya’s lawyer for 10 years. He is a member of the Nepad Business Foundation board and chairs the Canadian-Southern African Chamber of Commerce.

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