Arbitration Court subtly rebukes the IAAF and spells out how Caster should fight on

The decision of the Court of Arbitration for Sport (CAS) in the Caster Semenya, ASA and IAAF case is an entertaining read. I recommend reading the Executive Summary. If I had to put it into a theatrical format, I would write a scene where an insurance company employee is telling you, without telling you, how to present your claim for it to be successful. And it gives a very stern reprimand and warning to the IAAF.

I would not have wanted to be on that panel, yet the way the award is written gives Semenya all the pointers about how to fight this case. Wink wink. Three legal experts have explained while maintaining the impartiality of their duty, how she will win this case, how she can lead a historical turn in organised sport. This is not over, but it needs a different angle of attack. So let’s get over the emotion, and back to work. Passion alone does not win a fight.

First, it is important to understand that CAS is not a policy-making or a foresight body. It says so itself: The Panel is mindful that, in considering these issues, it is not acting as a policymaker or regulator. It is neither necessary nor appropriate for the Panel to step into the shoes of the IAAF by deciding how it would have approached issues had it been charged with making policies or enacting rules itself. It is a technical body: It only answers the question that it has been asked, based on the material provided by both parties.

Read further into point 13 of the executive summary: [The CAS panel’s] function is a purely judicial one. The Panel must adjudicate the disputed legal issues on the basis of the applicable legal tests and by reference to the arguments and admissible evidence on the record in these proceedings.

The message in both these extracts is that had it been asked to advise in a different capacity, the outcome would have been different. But more importantly, that paragraph says that the panel has been asked to answer a very narrow, pointed question, and arguably the wrong question for the issue at hand.

The clue is in point 12: The decision is also constrained by the accepted, necessary, binary division of athletics into male events and female events when there is no such binary division of athletes. That binary division has not been challenged.

This is what these three legal experts are hinting to Semenya and her team. The battle must not take place on the field of the validity of the IAAF’s Eligibility Regulations for the Female Classification — Athletes with Differences of Sex Development (DSD) — it must be fought on the field of the binary division of athletes.

The panel is saying “think big”. Read point 19: The imperfect alignment between nature, law and identity is what gives rise to the conundrum at the heart of this case. Challenge the binary division of athletes. The DSD is an irrelevant by-product of an obsolete system, which is clutching at straws by desperately trying to shoe-horn bodies into ill-fitted casts.

Could they say it any clearer here? The purpose of the male-female divide in competitive athletics is not to protect athletes with a female legal sex from having to compete against athletes with a male legal sex. Nor is it to protect athletes with a female gender identity from having to compete against athletes with a male gender identity. Rather, it is to protect individuals whose bodies have developed in a certain way following puberty from having to compete against individuals who, by virtue of their bodies having developed in a different way following puberty, possess certain physical traits that create such a significant performance advantage that fair competition between the two groups is not possible.

The incredible fact is that the IAAF agrees to this. In Point 18: The Panel accepts the IAAF’s submission that reference to a person’s legal sex alone may not always constitute a fair and effective means of making that determination.

So let me summarise. First, everyone agrees that we like the idea of a fair competition. Second, the panel, the IAAF and obviously Semenya and her team agree that the male and female categories don’t achieve the purpose it was rightly designed to address. Third, in Point 14: The Panel unanimously concludes that the DSD Regulations are prima facie discriminatory and Point 26: The Panel highlights its serious concerns about aspects of the practical application of the DSD Regulations when they are implemented.

So … could it be any clearer? Semenya and her team need to get back to work and challenge the binary classification on the same grounds as they challenged the DSD regulations.

Or, the IAAF could, once again, look at reality as it is and lead the way on a topic which isn’t just going to fade away. If you don’t deal with it, it will deal with you. Get your experts thinking on how things could be done differently with the new scientific evidence at hand. Re-think how to aim for fairness through categorisations which are other than a binary division of gender.

Think weight categories, think marathon wave categories, think different sets of markers to create categories which will enhance fairness based on new knowledge. But please start thinking, rather than being in denial.

To conclude:

Point 27: The Panel expresses its profound gratitude for her dignified personal participation and the exemplary manner in which she has conducted herself throughout the proceedings.

We do not need to be reminded how graceful Semenya has been when 1% of what has been done to her would have pushed most of us over the edge. But the subtlety here is to ask where the IAAF is thanked for its professionalism? Nowhere.

Point 28: Her participation and success in elite female athletics is entirely beyond reproach and she has done nothing whatsoever to warrant any personal criticism.

Let us be reminded of what has been said about this young lady. I hope all those who have spoken ill will recognise themselves. DM