“You can play as long as you don’t win” Legal perspectives on the regulations pertaining to the participation of women with hyperandrogenism in women’s athletics

by prof. dr. Steve Cornelius[2]

 

Introduction

On a cool Berlin evening on 19 August 2009, a 19-year old South African woman ran the race of her life to take the gold medal in the 800 metres for women at the World Athletics Championships. However, even before she lined up for the final of the 800 metres event, controversy began to surround her participation, so much so that she was ushered off the track without taking the traditional lap of honour[3] and the IAAF decided to withdraw her from the usual post-race news conference.[4]

Caster Semenya first appeared on the international track and field scene when she won the 800 metres for girls at the 2008 Commonwealth Youth Games in Pune, India.[5] However, it was in 2009 that her meteoric rise began to raise eyebrows. Semenya first won both the 800 metres and 1,500 metres for girls at the African Junior Championships. In the 800 metres event, her time of 1:56.72 broke both the South African junior girls’ and senior women’s records and set the World’s fastest time for the year in the women’s event. She continued to improve and the 2009 track and field season culminated in her victory at the senior World Championships with a time of 1:55.45, which again broke both the South African junior girls’ and senior women’s records and set the World’s fastest time for the year in the women’s event.

As a result of her stellar performances, journalists, sports administrators and competitors began to question Semenya’s gender[6] and there were even unsubstantiated rumours that subsequent gender verification tests revealed that she had both male and female sex organs.[7]

In fact, hours before the final of the 800 metres for women at the World Championships in Berlin, Semenya was told to undergo a gender verification test if she wished to continue participating in women’s athletics.[8] What the gender tests did eventually reveal was that Semenya had elevated levels of the male hormone testosterone – a condition known as hyperandrogenism.[9] She spent eleven months on the sidelines while she was subjected to hormone treatment to offset the effect of the elevated testosterone, before eventually being cleared for further participation in women’s events.[10]

 

The hyperandrogenism regulations

The way in which the IAAF and the media handled the matter was questionable, to say the least. As a result, the IAAF sought to avoid a similar debacle in future by providing rules and procedures in an effort to ensure that similar situations were dealt with better in future.

At its council meeting on 12 April 2011, the IAAF adopted the Regulations Governing Eligibility of Females with Hyperandrogenism to Compete in Women’s Competition (the Hyperandrogenism Regulations).[11] The Hyperandrogenism Regulations were set to take effect on 1 May 2011.[12] The IAAF revoked its previous Gender Verification Policy and abandoned references to “gender verification” and “gender policy”.[13]

The preface to the Hyperandrogenism Regulations explained that competition in Athletics has since 1928 been strictly divided into male and female competitions and that a separate category for female competitors exists to recognise their specific physical aptitude and performance. The preface attributed the difference in athletic performance between males and females predominantly to the higher levels of androgenic hormones in males, which result in increased strength and muscle development. As a result, the participation of women with hyperandrogenism proved controversial so that the IAAF sought to manage the participation of such athletes. The preface acknowledged that women with hyperandrogenism may compete in women’s competition in athletics, but only subject to compliance with the IAAF Rules and Regulations.

 

Significantly, paragraph 1.3 of the Hyperandrogenism Regulations provided that:

No female with hyperandrogenism shall be permitted to compete in the female category of an International Competition until her case has been evaluated by the IAAF in accordance with these Regulations.

The Hyperandrogenism Regulations required that any female athlete with hyperandrogenism who sought to compete in international competition had to notify the IAAF so that her case could be evaluated.[14] Furthermore, the Hyperandrogenism Regulations authorised the IAAF Medical Manager to initiate a confidential investigation of any female athlete if he (sic) has reasonable grounds, derived from any source, for believing that a case of hyperandrogenism may exist.[15]

The Hyperandrogenism Regulations further provided for the establishment of an Expert Medical Panel[16] to conduct any investigation in terms of the Hyperandrogenism Regulations.[17] Investigation required a medical assessment ranging from an initial clinical examination and a preliminary endocrine assessment to a full examination and diagnosis.[18] If the Panel found that the athlete has androgen levels below the normal male range or if the athlete had androgen levels within the normal male range but could prove that she was androgen resistant and derived no competitive advantage from elevated androgen levels, the panel had to declare the athlete eligible to compete in women’s events.[19]

However, if the athlete did not meet either of these criteria, the Panel had to determine the conditions under which it would be acceptable for the athlete to compete in women’s events and provide a schedule for monitoring the athletes prescribed medical treatment.[20]

The Hyperandrogenism Regulations further provided that the athlete would only be eligible to compete in women’s events once the athlete met the conditions for participation recommended by the Expert Medical Panel.[21] Furthermore, the athlete had to comply with the medical treatment prescribed by the Panel and had to provide the IAAF Medical Department with satisfactory evidence that she was complying.[22]

There would be a period of return to competition during which the athlete would be continuously monitored and undergo further medical tests,[23] which could include random unannounced testing and the taking of urine and blood samples.[24] At the end of the period, the Panel would again review the athlete’s further medical information and data before recommending that she is either eligible to compete in women’s events or required to undergo a further period of monitoring before being eligible to compete.[25]

If an athlete refused to be tested or was found not to comply with the conditions laid down by the Expert Medical Panel, she would not be eligible to compete until the Panel determined that she was compliant.

 

The hyperandrogenism regulations challenged

While Caster Semenya was resigned to her fate and sought to comply with the requirements imposed by the IAAF to ensure that she could continue to compete in women’s events and retain her World- and African titles, a young Indian athlete decided to challenge the validity new Hyperandrogenism Regulations.[26] Dutee Chand was a sprinter who won gold medals in the 200 metre and 4 x 400 metre relay events for girls at the 2014 Asian Junior Track and Field Championships in Taipei.[27]

Following the lead of the IAAF, the Indian Ministry of Sport issued a standard operative procedure to identify circumstances (female hyperandrogenism) in which a particular sports person will not be eligible to participate in competitions in the female category.[28] Based on this procedure, Chand was, after her success at the 2014 Asian Junior Track and Field Championships, under false pretences[29] and without knowledge as to their true purpose,[30] subjected to various medical tests.[31] These included blood tests, clinical tests by a gynaecologist, karyotyping, as well as MRI and ultrasound examinations.[32]

Chand was subsequently informed that she would not be eligible for selection for the World Junior Championships and the Commonwealth Games because her androgen levels were too high.[33] However, after a meeting between the Sports Authority of India (SAI), the Athletics Federation of India (AFI) and the athlete, she was encouraged to appeal the matter to the Court of Arbitration for Sport (CAS) and the SAI and AFI would support her in her appeal.[34]

Chand appealed to the CAS on the grounds that the Hyperandrogenism Regulations discriminated against female athletes, and females with hyperandrogenism in particular, and therefore violated the anti-discrimination provisions in the Olympic Charter, the IAAF Charter and international human rights law.[35] She further submitted that the Hyperandrogenism Regulations were based on premises that were scientifically flawed in that there was no convincing scientific evidence to show a causal relationship between high endogenous testosterone levels and enhanced athletic performance in female athletes.[36] Chand also argued that the effect of the Hyperandrogenism Regulations were disproportionate to any benefits which the IAAF aimed to achieve with the Hyperandrogenism Regulations.[37] In addition, Chand submitted that the Hyperandrogenism Regulations constituted an anti-doping sanction which was contrary to art. 4.3.3 of the World Anti-doping Code in that it effectively sought to add natural testosterone to the list of banned substances issues by the World Anti-doping Authority.[38]

The CAS found that the Hyperandrogenism Regulations were discriminatory[39] and that there was no available evidence on the quantitative effect of elevated levels of endogenous testosterone on female athletic performance.[40] As a result, it was not self-evident that female athletes with hyperandrogenism would have any significant performance advantage over other female competitors.[41] Consequently, the CAS was unable to conclude that the Hyperandrogenism Regulations fulfil their stated purpose of ensuring fair competition and therefore the Hyperandrogenism Regulations were disproportionate to the benefits which the IAAF sought to achieve.[42]

The CAS suspended the Hyperandrogenism Regulations for a period of two years. During this time, the IAAF could present evidence to show that female athletes with hyperandrogenism have a significant competitive advantage over other female athletes, in which case the CAS would refer the matter for further hearing. If the IAAF failed to present such further evidence within the two-year period, the Hyperandrogenism Regulations would be declared void.[43]

 

Why should we care about IAAF regulations?

In the first instance, any athlete participates in sport on the basis of a contractual relationship,[44] the terms of which are derived from the constitution, laws, rules and regulations of the various bodies, unions, associations and federations which govern the particular sport.

For a while, it seemed as if courts subscribed to the autonomy of international sports federations (IFs) and were reluctant to intervene in the affairs of IFs.[45] But as sport edged more and more towards professionalism, the attitudes of courts across the globe also began to change. Courts began to view IFs in the same light as multinational corporations and recognised that being a professional athlete is a career choice that athletes make.[46]

As a result, courts began to shift from the view that participation in sport was a privilege and effectively derived a right for those who chose to participate in professional sport[47] from the right to work or choose an occupation as recognised in the Universal Declaration of Human Rights,[48] the International Covenant on Economic, Social and Cultural Rights,[49] the African Charter on Human and Peoples’ Rights[50] and the European Charter of Fundamental Rights.[51] This right to participate is also reflected in the Olympic Charter, which provides that the practice of sport is a human right and that every individual must be able to participate in sport without discrimination of any kind, such as race, colour, sex, sexual orientation, language, religion, political or other opinion, national or social origin, property, birth or other status.[52]

The right to work or choose an occupation also includes the right to just and favourable[53] or equitable[54] conditions of work and the right to gain a living by work which a person freely chooses or accepts.[55] Consequently, contractual terms which impose harsh, unjust or inequitable conditions of service must be measured against national and international human rights instruments, as well as national and international labour laws.

 

Fundamental rights perspective

The question is therefore whether the Hyperandrogenism Regulations constitute fair conditions of work that meet applicable international standards. At the outset one has to question whether measures which impose clear medical interventions,[56] and that can be potentially harmful to athletes with hyperandrogenism,[57] can in any way be viewed as just or equitable.

On the contrary, there are various reasons, derived from provisions in significant human rights instruments, which place the harsh, unjust, inequitable and humiliating nature of the Hyperandrogenism Regulations in clear perspective. The European Charter of Fundamental Rights, for example, provides[58] that, in the fields of medicine and biology, there is a prohibition of eugenic practices and in particular where such practices are aimed at selection of persons.

Eugenic practices can be described as the practice of creating a class of people (or animals) who are free from inferior traits.[59] If one keeps in mind that hyperandrogenism in women is often the result of ovarian disorders or adrenal disorders that manifest during adolescence,[60] the eugenic nature of the Hyperandrogenism Regulations becomes alarmingly clear. It is, in effect, an attempt to exclude or at least control the participation of hyperandrogenous women with various congenital or other disorders, in athletics. As such, it is very hard to distinguish the Hyperandrogenism Regulations and the “treatment” it contemplates, from other eugenic practices of the past, such as the enforced sterilisation of people who were considered to be feeble minded and socially inadequate in various US states during the first half of the twentieth century.[61] In the infamous case of Buck v. Bell[62] Justice Oliver Wendell Holmes ruled that public welfare could require that society should be protected against “those who are manifestly unfit from continuing their kind”. There is in essence no conceptual difference between this ludicrous view and the view of the IAAF[63] that the Hyperandrogenism Regulations are necessary to protect the integrity of fair competition from the participation of women who are seen by the IAAF to endanger that fairness due to medical factors over which they have absolutely no control. Not only is this the kind of attitude that has led to the worst atrocities ever perpetrated by humans, but it is also the kind of attitude that still exposes women across the globe on a daily basis to domestic violence, honour killings, genital mutilation, “corrective rape” and other forms of brutal repression.

The largely unsubstantiated argument that most female athletes support the terms of the Hyperandrogenism Regulations[64] is just as offensive as the argument in Buck v. Bell[65] that “society” called for the sterilisation of feeble minded persons. As Justice Chaskalson explained in the South African case of S v. Makwanyane[66] the purpose of fundamental rights is:

to protect the rights of minorities and others who cannot protect their rights adequately through the democratic process. Those who are entitled to claim this protection include the social outcasts and marginalised people of our society. It is only if there is a willingness to protect the worst and the weakest amongst us, that all of us can be secure that our own rights will be protected.[67]

 

And Jusice O’Regan added[68] that:

the entrenchment of a Bill of Rights […] is designed, in part, to protect those who are the marginalised, the dispossessed and the outcasts of our society. They are the test of our commitment to a common humanity and cannot be excluded from it.

 

Medical ethics

The argument that the Hyperandrogenism Regulations

help the IAAF to protect the health of hyperandrogenic athletes, by facilitating an expert diagnosis of their condition (at the IAAF’s expense), enabling the affected athlete to obtain appropriate and beneficial medical treatment for her condition[69]

is patronising and sexist. It implies that all female athletes are incapable of taking care of their own medical affairs and somehow need someone to take care of it for them. It also implies that the IAAF is doing athletes with hyperandrogenism a favour when it is according to its own admission, discriminating against them.[70] This argument seeks to normalise and rationalise the selective treatment of women with hyperandrogenism.[71]

It effectively removes one of the cornerstones of modern medical ethics – the patient’s right to self-determination[72] – and vests it in the IAAF. The argument that the Hyperandrogenism Regulations emphasise the need for informed consent,[73] is disingenuous. Female athletes with hyperandrogenism must agree to disclose their medical information to the IAAF and submit to the medical scrutiny and treatment contemplated in the Hyperandrogenism Regulations. If they refuse, they will no longer be allowed to participate in athletics.[74] In other words, submission to medical scrutiny is a “necessary pre-condition for her eligibility to compete[75] and, if she refuses, “the athlete shall not be eligible to compete in Athletics”.[76] Similarly the IAAF Competition Rules also provide that an athlete who fails to comply with the applicable regulations to determine the eligibility for women’s competition of females with hyperandrogenism, shall not be eligible to compete.[77] Significantly, neither paragraph 3.2, nor paragraph 7.8 of the Hyperandrogenism Regulations, nor rule 141.6(b) of the IAAF Competition Rules, qualify the ineligibility to compete as referring only to participation in women’s events. The applicable provisions, therefore, contemplate a complete bar against participation, whether in women’s competition or men’s competition. The athlete is faced with the choice of compliance with the Hyperandrogenism Regulations or being denied what the Olympic Charter recognises to be a fundamental right. Valid consent must be given freely, but where an athlete is faced with two stark choices, this clearly amounts to coercion and there simply cannot be any prospect of informed consent.

 

Sex and gender discrimination

Hyperandrogenism is not a condition which is unique to women. Men can also be hyperandrogenic.[78] The question then can be legitimately posed: why are only women singled out to be tested for hyperandrogenism and not males?

The position of the IAAF in this regard is simply astounding and self-contradictory. In the first instance, the IAAF cites the lack of scientific evidence to demonstrate any correlation between male hyperandrogenism and enhanced sports performance.[79] And yet, despite the lack of clear scientific evidence that hyperandrogenism in women correlates with any significant increase in athletic performance, the IAAF insists that the Hyperandrogenism Regulations are required to be fair to the majority of female athletes with normal testosterone levels.[80] The IAAF cannot have its cake and eat it. If a lack of scientific evidence justifies the lack of regulation on the one hand, then a similar lack of scientific evidence should also inform a similar lack of regulation on the other hand. And if they do conduct scientific studies with regard to women with hyperandrogenism, non-discrimination demands that they should conduct similar studies with regard to men with hyperandrogenism.

Secondly, it was also submitted on behalf of the IAAF that “there is a complete lack of clamour among male competitors for separate competition according to testosterone levels”.[81] So this implies that there has been a clamour among female athletes for such separate competition? In fact, as Nick Davies, Deputy Secretary-General of the IAAF suggested, the real clamour for action was more likely the “unpleasant tabloid style reporting” by the press around Caster Semenya.[82] One journalist crudely remarked:[83]

It wasn’t just the rapid time. Semenya has a well-muscled physique. She also has a dusting of facial hair. Mix those three things together and ugly rumours spread like wildfire.

The media also viciously preyed on any comments pertaining to Caster Semenya which other female athletes made,[84] to the extent of perhaps misrepresenting or selectively quoting from those comments.[85]

In the final analysis, as Hart[86] explained, the “issues now for the IAAF is to learn the lessons of the Semenya saga and ensure there is no repeat in future gender cases”. The Hyperandrogenism Regulations were clearly the IAAF’s attempt to learn the lessons of the Semenya saga. The IAAF could have taken a moral stand and promoted a culture of diversity and non-discrimination in athletics. Instead, it chose to succumb to the bigotry of the tabloids. Nowhere is this highlighted in more explicit terms than in the preface to the Hyperandrogenism Regulations, which explains:

Despite the rarity of such cases, their emergence from time to time at the highest level of women’s competition in Athletics has proved to be controversial since the individuals concerned often display masculine traits […]”

No matter how one looks at this, it is extremely difficult to ignore the fact that this conveys a clear message: we do not want to be embarrassed by ugly masculine women participating and winning in athletics.

Thirdly, the IAAF also argued that the Hyperandrogenism Regulations did not amount to unfair discrimination since women with hyperandrogenism were over-represented in the population of elite female athletes, when compared to the general population.[87] This of course contradicts the reference to the “rarity of such cases” in the preface to the Hyperandrogenism Regulations. More significantly, though, it also ignores the fact that there is scientific evidence to show that the stress of participation in elite sport, particularly at a young age, is one of the major causes of hyperandrogenism in young women. In fact, some long-term studies have shown that up to ten percent of all cases of hyperandrogenism in women can be attributed to the stresses caused by participation in elite sport.[88] Consequently, it should not be strange or in any way significant that women with hyperandrogenism were over-represented in the population of elite female athletes.

Fourthly, it was contended on behalf of the IAAF that men are not subject to testing for hyperandrogenism because “there are two categories for male and female and not three: male, female and “super-male””.[89] But surely testing women for hyperandrogenism now creates three categories: male, female and super-female (or perhaps defective-female)? In any event, this argument is simply absurd since the issue was never to create separate competitions for hyperandrogenic athletes.

The last argument made on behalf of the IAAF in this regard is simply ridiculous. patronising and sexist in the extreme: since the Hyperandrogenism Regulations are aimed at protecting women from having to compete against women with the supposed hormonal advantages of men, equal treatment does not require an analogous policy to protect men competing against other men with elevated levels of testosterone.[90] It implies that female athletes are weak and require protection against other women who are deemed to be too masculine. Men, on the other hand, are presumably strong and do not require protection. On the other hand, coming from an organisation that had for decades believed that women were too weak to participate in middle and long distance running at major championships and is still to achieve full parity of events at major championships,[91] this condescending view should not be surprising.

 

Racial discrimination

The case for the preservation of the Hyperandrogenism Regulations was also lined with racist undertones. It was argued on behalf of the IAAF that women with hyperandrogenism were over-represented among elite female athletes because there was ““a recruitment bias in the recruitment bias” since undeveloped countries tended to have more elite athletes” with hyperandrogenism than developed countries.

This perception was not dispelled when Paula Radcliffe, one of the elite female athletes who testified for the IAAF in the Chand case,[92] and a member of the IAAF Athletes’ Commission, made racist comments in the media when she remarked[93] that:

what worries me is that we know there are certain communities where the condition of intersex and hyperandrogenism is more prevalent. We do not want to get to a situation where people are actively going to these communities to seek out girls who look like they’re going to go out and perform and run fast and then to take them away and train them.

This surely begs the question: why not? Why should girls from “these communities” not be identified and trained to become champions?

 

The spirit of sport exisialportations of

This intrinsic value is often referred to as “the spirit of sport”. it is the essence of Olympism, the pursuit of human excellence through the dedicated perfection of each person’s natural talents. It is how we play true. The spirit of sport is the celebration of the human spirit, body and mind, and is reflected in values we find in and through sport.[94]

While the IAAF argues that the Hyperandrogenism Regulations seek to promote the spirit of sport by ensuring fair competition between female competitors, it can legitimately be asked why other factors that apparently create biological advantages for athletes are not subject to the same scrutiny.

For example: (i) some runners and cyclists have rare mitochondrial conditions that give them extraordinary aerobic capacity and resistance against fatigue; (ii) some basketball players have a hormonal condition known as acromegaly, which results in exceptionally large hands and feet; (iii) the proportion of elite baseball players with perfect vision is significantly higher than amongst the general population; and (iv) some elite athletes have genetic variation that respectively increase muscle growth/efficiency and blood flow to skeletal muscles. None of these traits are the subject of eligibility restrictions.[95]

The response to these arguments shows how irrational and arbitrary the Hyperandrogenism Regulations actually are. Instead of providing some rational justification why other biological factors that influence performance are not subject to regulation and control, the IAAF merely dismissed these issues and argued that “each sport is entitled to determine what factors make competition unfair and therefore warrant the adoption of clear dividing lines”.[96] It is simply a case of saying “it is fair or unfair because we say so”. Of course, to be fair, it is impossible to provide rational arguments where there are none.

 

Conclusion

With the adoption of the Hyperandrogenism Regulations, the IAAF embarked on a slippery slope of bigotry, sexism and racism. Reports suggest that the IAAF will challenge the Chand ruling[97] and seek to reinstate the Hyperandrogenism Regulations. If they do, they will be seeking to defend the indefensible. As indicated above, the Hyperandrogenism Regulations and the rationale on which they are based are simply wrong in so many ways. This perpetrates violence against certain women for no reason other than because they are different.

Whether a female athlete may or may not have an unfair competitive advantage over other female athletes merely because she has elevated natural levels of testosterone is just as relevant as whether a male athlete with elevated levels of testosterone has an unfair competitive advantage over other male athletes, it is just as relevant as whether a high jumper who is over two metres tall has an unfair competitive advantage over an average athlete and it is just as relevant as whether a discus thrower with acromegaly has an unfair competitive advantage over an average athlete.

 

As Karkazis, Jordan-Young, Davis and Camporesi[98] conclude:

The answer […] depends on the values that are deemed important in elite sports and competition. Elite sport can value diversity and ensure that all women, including those with intersex traits, have equal opportunity to participate in sports, that they are treated humanely, that they are not forced to undergo what may be unnecessary medical treatment, and that they are not made ineligible based on advantages they may not even have.

In a time when women across the globe are still subjected to extreme forms of discrimination and unspeakable violence, the IAAF could have chosen to become a champion for the rights of all women to be free from violence and to maximise their natural talents. Instead, the IAAF chose to perpetuate the violence. Whether they continue on this route, only time will tell. But if they do, history will eventually judge them harshly for it!

 

[1] This article is based on a paper presented at the Elimination of Violence Against Women Conference hosted by Aberystwyth University in Mauritius on 25 November 2016.

[2] BIuris LLB (SA) LLD (Pret) FA Arb SA M Acad SA. Professor and Head of the Department of Private Law, Faculty of Law, University of Pretoria. Advocate of the High Court of South Africa.

[3] Fordyce, “Semenya left stranded by storm”, in: BBC Sport, 19 August 2009, available at www.bbc.co.uk/blogs/tomfordyce/2009/08/semenya_left_stranded_by_storm.html (accessed on 13 November 2016).

[4] Fordyce, “Semenya told to take gender test”, in: BBC Sport, 19 August 2009, available at http://news.bbc.co.uk/sport2/hi/athletics/8210471.stm (accessed 16 November 2016).

[5] Anon, “Young SA team strikes gold”, in: IOL Sport, 16 October 2008, available at www.iol.co.za/sport/young-sa-team-strikes-gold-594712 (accessed on 13 November 2016).

[6] Anon, “Women’s world champion Semenya faces gender test”, in: CNN World Sport, 20 August 2009, available at http://edition.cnn.com/2009/SPORT/08/19/athletics.worlds.berlin.semenya/index.html (accessed on 13 November 2016).

[7] Hart, “Caster Semenya given all clear after gender test row”,in: The Telegraph Sport, 6 July 2010, available at www.telegraph.co.uk/sport/othersports/athletics/7873240/Caster-Semenya-given-all-clear-after-gender-test-row.html (accessed 13 November 2016).

[8] Fordyce, op. cit. note 2.

[9] Hart, op. cit. note 5.

[10] Ibid.

[11] Par. 8.1 of the Regulations Governing Eligibility of Females with Hyperandrogenism to Compete in Women’s Competition (the Regulations).

[12] Idem par. 8.2.

[13] Idem par. 1.4.

[14] Idem par. 2.1.

[15] Idem par. 2.2.

[16] Idem chap. 4.

[17] Idem chap. 5.

[18] Idem par. 5.1.

[19] Idem par. 6.5.

[20] Idem par. 6.8.

[21] Idem par. 7.3.

[22] Idem par. 7.4.

[23] Idem par. 7.5.

[24] Idem par. 7.7.

[25] Idem par. 7.6.

[26] Chand v. IAAF CAS 2014/A/3759.

[27] Idem par. 1.

[28] Idem par. 9.

[29] Idem par. 10-12.

[30] Ibid.

[31] Ibid.

[32] Idem par. 15.

[33] Idem par. 16.

[34] Idem par. 23-31.

[35] Idem par. 106.

[36] Idem par. 119.

[37] Idem par. 229 et seq.

[38] Idem par. 358.

[39] Idem par. 448 et seq.

[40] Idem par. 526 et seq.

[41] Idem par. 522.

[42] Idem par. 531 et seq.

[43] Idem par. 548.

[44] Arnstrong v. Tygart & USADA Case No A-12-CA-606-SS; Jockey Club of South Africa v. Transvaal Racing Club 1959 1 SA 441 A 446F, 450A; Turner v. Jockey Club of South Africa 1974 3 SA 633 A; Jockey Club of South Africa v. Forbes 1993 1 SA 649 A 645B, 654D; Natal Rugby Union v. Gould 1999 1 SA 432 SCA 440F; Rowles v. Jockey Club of SA and others 1954 1 SA 363 A 364D; Johannesburg Country Club v. Stott and another 2004 5 SA 511 SCA.

[45] Nehemiah v. IAAF 765 F2d 42; Oldfield v. IAAF 779 F 2d 505; People v. Fitzsimmons 11 NY Crim R 391; Agar v. Hyde 201 CLR 552; Simms v. Leigh Rugby Football Club Ltd 1969 2 All ER 923 (Ass); Sutton v. Syston RFC Ltd [2011] EWCA Civ 1182; R v. Cey 75 Sask R 53; R v. Maki 14 DLR 3d 164; R. v. Green 16 DLR 3d 137; Schadensersatzanspruch eines Fußballspielers 1975 NJW 109; Fußballspiel 2010 NJW 537; Fußballspielers 1976 NJW 957.

[46] Reel v. Holder [1981] 3 All ER 321; Reynolds v. IAAF 112 S Ct 2512; Reynolds v. IAAF 23 F 3d 1110; Harding v. US Figure Skating Association 851 F Supp 1476; Slaney v. IAAF 244 F 3d 580; Barnard v. Australian Soccer Federation 81 ALR 51; Union Royale Belge des Sociétiés de Football Association ASBL v. Bosman 1995 ECR 1-4921 (ECJ)

[47] Pechstein/Deutsche Eisschnelllauf-Gemeinschaft eV OLG München (15-01-2015) – U 1110/14 Kart; SV Wilhelmshaven eV/Norddeutscher Fußball-Verband eV OLG Bremen Urt vom 30.12.2014 – U 67/14; Olympique Lyonnais SASP v. Olivier Bernard and Newcastle UFC ([2010] ECR I-2177; Coetzee v. Comitis 2001 (1) SA 1254 (C).

[48] Art. 23.1.

[49] Part III art. 6.

[50] Art. 15.

[51] Art. 15.

[52] Art. 39 of the Olympic Charter.

[53] Art. 23.1 of the Universal Declaration of Human Rights.

[54] Art. 15 of the African Charter on Human and Peoples’ Rights.

[55] Part III art. 6 (1) of the International Covenant on Economic, Social and Cultural Rights; art. 15 of the European Charter of Fundamental Rights.

[56] Chand v. IAAF CAS 2014/A/3759 par. 382.

[57] Idem par. 179.

[58] Art. 3(2)(b) of the European Charter of Fundamental Rights.

[59] Mercola, “The US’ surprising eugenics program revealed”, available at http://articles.mercola.com/sites/articles/archive/2011/10/31/us-history-of-eugenics-practice.aspx (accessed on 15 November 2016).

[60] Sultan, Gaspari and Paris, “Management of Adolescent Hyperandrogenism”, in: Fauser and Genazzani (eds), Frontiers in Gynecological Endocrinology, Volume 2: From Basic Science to Clinical Application (2015) 35.

[61] Cawthon, Medicine on Trial: A Handbook with Cases, Laws, and Documents (2004) 137.

[62] 274 US 200.

[63] Chand v. IAAF CAS 2014/A/3759 par 242 et seq.

[64] Idem.

[65] 274 US 200.

[66] 1995 (3) SA 391 (CC).

[67] Par. 88.

[68] Par. 332.

[69] Chand v. IAAF CAS 2014/A/3759 par. 243. See also par. 248(e).

[70] Idem par. 109.

[71] Rose, “Caster Semenya and the intersex hypothesis: on gender as the visual evidence of sex”, in: Montonola and Olivesi (eds), Gender Testing in Sport (2016) 112.

[72] Giesen, International Medical Malpractice Law: A Comparative Kaw Study of Civil Liability Arising from Medical care (1988) 268.

[73] Idem par. 248(f).

[74] Par. 3.2 and 7.8 of the Hyperandrogenism Regulations.

[75] Par. 3.2 of the Hyperandrogenism Regulations.

[76] Par. 7.8 of the Hyperandrogenism Regulations.

[77] Rule 141.6(b) of the IAAF Competition Rules.

[78] Kannan, Essential Endocrinology (1986) 261.

[79] Chand v. IAAF CAS 2014/A/3759 par. 274.

[80] Idem par. 244.

[81] Idem par. 247.

[82] Idem par. 346.

[83] Fordyce, op cit.

[84] Haden, “Paula Radcliffe says Caster Semenya winning gold at the Olympics “would not be sport””, in: The South African, 22 July 2016, available at www.thesouthafrican.com/paula-radcliffe-says-caster-semenya-winning-gold-at-the-olympics-would-not-be-sport (accessed on 16 November 2016); Snowdon, “Lynsey Sharp defends Caster Semenya comments after coming sixth in women’s 800m final in Rio”, in: The Huffington Post, 21 August 2016, available at www.huffingtonpost.co.uk/entry/lynsey-sharp-defends-caster-semenya-comments-after-coming-sixth-in-womens-800m-final-in-rio_uk_57b9ae1de4b0f78b2b4a53c1 (accessed on 16 November 2016).

[85] Anon, “Paula Radcliffe clarifies Caster comments”, in: Sport24, 22 July 2016, available at www.sport24.co.za/OtherSport/Olympics2016/paula-radcliffe-clears-up-caster-comments-20160722 (accessed on 16 November 2016).

[86] Op cit.

[87] Chand v. IAAF CAS 2014/A/3759 par. 210.

[88] Sultan, Gaspari and Paris (2015) 35.

[89] Chand v. IAAF CAS 2014/A/3759 par. 213.

[90] Chand v. IAAF CAS 2014/A/3759 par. 247.

[91] Burfoot, First Ladies of Running: 22 Inspiring Profiles of the Rebels, Rule Breakers and Visionaries who Changed the Sport Forever (2016) xiv. Women were not allowed to compete in the 1,500 metre race at the Olympic Games until 1972, the Marathon in 1984, the 10,000 metre race in 1988, the 5,000 metre race until 1996 and the 1,500 metre steeplechase until 2008. As far as multi-event competitions are concerned, women still participate in the seven-event heptathlon, while men participate in the ten-event decathlon.

[92] Chand v IAAF CAS 2014/A/3759 par 213.

[93] Haden “Paula Radcliffe says Caster Semenya winning gold at the Olympics ‘would not be sport’” 22 July 2016 The South African available at http://www.thesouthafrican.com/paula-radcliffe-says-caster-semenya-winning-gold-at-the-olympics-would-not-be-sport/ (accessed on 16 November 2016); Anon “Paula Radcliffe clarifies Caster comments” 22 July 2016 Sport24 available at http://www.sport24.co.za/OtherSport/Olympics2016/paula-radcliffe-clears-up-caster-comments-20160722 (accessed on 16 November 2016).

[94] The Fundamental Rationale for the World Anti-Doping Code.

[95] Chand v. IAAF CAS 2014/A/3759 par. 260.

[96] Idem par. 245.

[97] Chand v. IAAF CAS 2014/A/3759.

[98] Karkazis, Jordan-Young, Davis and Camporesi, “Out of bounds? A critique of the new policies on hyperandrogenism in elite female athletics”, in: Caplan and Parent (eds), The Ethics of Sport (2017) 138.