The Misplaced Burdens of 'Gender Equality' in Caster Semenya v IAAF: The Court of Arbitration for Sport Attempts Human Rights Adjudication

Abstract

The highly anticipated decision of the Court of Arbitration for Sport (CAS) in Caster Semenya v International Association of Athletics Federations (IAAF) has quickly become its most (in)famous. Whatever one might think of the regulations at issue in this case — by which the IAAF excludes certain female athletes with “differences of sexual development” from the female category of competition — the Panel's decision is an instructive example of the limits of the CAS when it comes to the adjudication of human rights claims. This article argues that the CAS stamp of approval is no guarantee of human rights compliance and therefore the IAAF cannot rely on the decision to credibly claim its female eligibility regulations respect, let alone promote, human rights. This conclusion is reached through the identification of multiple shortcomings in the CAS Panel's analysis of the necessity, reasonableness and proportionality of the IAAF's discriminatory regulations. It demonstrates that such analysis effectively placed the burdens of 'gender equality' — in particular, the burden of the IAAF’s history of gender discrimination, the burden of uncertainty in the IAAF’s evidence, and the burden of ongoing risk of harm arising from the IAAF’s regulations — on Semenya and other targeted female athletes. Some concluding remarks are then offered on the implications of the decision for the protection and promotion of human rights in sport.

Keywords: International Human Rights Law; Gender Equality; Sports Law