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At the request of my new [South-African, obviously] colleague @MPlagis, I swallowed the 163 pages of the #Semenya award yesterday.

It wasn’t the most pleasant literary experience of my life, but at least I learned what a judicial ‘hot tub’ is.

Here is a book review:

1. In short, what is interesting in the award is actually also what the #CAS forgot to mentioned in its press release, the core of #IAAF’s winning case turns on the concepts of ‘biological males’ & ‘sports sex’.

#Semenya #Autonomy #Sportslaw
2. But let me start by regretting that the #CAS hearing was not public because @caster800m’s testimony (see paras 73-87) recalling what she went through since 2009 would have deserved a global audience.

#Sportslaw #Semenya
3. This is important because the question at hand is whether we as a transnational community think that imposing such hardship on a small group of people is actually worth it (in lawspeak ‘proportionate’).

#Sportslaw #Semenya
4. Another important aspect of the award is that it is mainly a battle of contradicting witness statements by a variety of experts called by the parties (paras 98-222 (for Semenya), paras 241-282 (for ASA), & paras 313-414 (for IAAF)).

#Sportslaw #Semenya
5. These experts were consulted in ‘hot tubs’ (I‘d love to visit #CAS’s hot tubs...in case someone is reading) over specific scientific issues. The credibility (in the eyes of the panel) of IAAF’s experts and evidence was crucial for its success.

#Sportslaw #Semenya
6. #IAAF’s case was build around a set of core claims:
- This is about male/female divide in competitions
- 46 XY DSD athletes are ‘biological males’
=> They enjoy similar testosterone-derived advantages as males
=> Eligibility to female events cannot be based on ‘legal sex’
7. Thus:
« In the absence of the DSD Regulations, the divide between the male and female categories would be policed by legal sex or self-declaration of gender identity, thereby denying female athletes an equal chance to excel in sport. » (Para. 311)

#Semenya #Sportslaw
8. This view was endorsed by a majority of the panel, which concluded that based on the evidence provided by IAAF the discriminatory effects (paras542-548) of the rules are necessary (paras556-580) & proportionate (paras582-619) to maintain fair competition in female athletics.
9. Assuming that there is evidence that female athletes with 46 XY DSD have a significant advantage over other female athletes due to their level of testosterone (a hotly disputed assumption), I think one can still critique the necessity/proportionality analysis of the rules.
10. Critique 1: Necessity

Is there a true risk of a massive influx of competitive 46 XY DSD female athletes in athletics competitions? I have no definitive answer, but I’ve the intuition that the idea of a wave of 46 XY DSDs crowding out female athletes could be misleading.
11. Critique 2: Proportionality

I’m not sure I share the view of the panel that the objective is proportionate to the medical interventions suggested in the rules or the risks of personal hardship à la Semenya faced by the athletes affected.
12. The decision claims « nothing in this Award is intended to question, determine or pass judgment upon any aspect of any person’s sex or gender ».

This is hypocritical at best: you are deciding whether @caster800m is allowed to enter ‘female’ events, you are judging her sex.
13. I feel it’s the core issue around these regulations. The IAAF competitions are not called the ‘XX 100m’ or ‘XY 800m’, these are male or female events. Legal sex, gender identity, sports sex do not operate in silos, by defining one we influence the others.

#Semenya #Sportslaw
I imagine lots of people will have different takes on the case, but do not forget to read the 160 pages (at tas-cas.org/fileadmin/user…) before continuing the discussion!

#Sportslaw #Semenya #HardCases
Ps: Here is a good introduction to Australian judicial hot tubs fedcourt.gov.au/digital-law-li…
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