Media Release Semenya ASA IAAF decision

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1 Tribunal Arbitral du Sport Court of Arbitration for Sport MEDIA RELEASE ATHLETICS FRICA A OUTH S THLETICS S A A RBITRATION : C ASTER (ASA) EMENYA , CAS A (IAAF): EDERATIONS F THLETICS A SSOCIATION OF AND I NTERNATIONAL DECISION Lausanne, 1 May 2019 – The Court of Arbitration for Sport (CAS) has ruled on the requests for arbitration filed by the South African athlete Cast er Semenya and Athletics South Africa (ASA) (“the f Athletics Federations (IAAF) (collectively, the Claimants”) against the International Association o parties). The arbitration procedures concerned the “IAAF Eligibility Regulations for Female Classification (Athletes with Differences of Sex De velopment)” (DSD Regulations) that were due to come into effect on 1 November 2018 and which are c urrently suspended, pending the outcome of the . CAS procedures. The CAS has dismissed both requests for arbitration Caster Semenya and ASA requested that the DSD Regul ations be declared invalid and void with immediate effect. They consider them as being discr iminatory, unnecessary, unreliable and disproportionate. The IAAF contended that the DSD R egulations do not infringe any athlete’s rights, g are a justified and proportionate means of ensurin including the right to equal treatment, but instead consistent treatment, and preserving fair and meani ngful competition within the female classification. There is no dispute that there should be a separate classification for female athletes – a binary divi de between male and female. In March/April 2018, the IAAF cancelled its “Hypera ndrogenism Regulations”, which had been primarily challenged by the Indian athlete Dutee Ch and, and replaced them with the DSD Regulations establishing new requirements governing the eligibi lity of women with DSD for the female the “Restricted Events”) at international athletics classification in race events from 400m to 1 mile ( competitions. The DSD covered by the Regulations ar e limited to athletes with “46 XY DSD” – i.e. conditions where the affected individual has XY chr omosomes. Accordingly, individuals with XX chromosomes are not subject to any restrictions or eligibility conditions under the DSD Regulations. ll into the male range (7.7 to 29.4 nmol/L; Athletes with 46 XY DSD have testosterone levels we normal female range being below 2 nmol/L). The DSD Regulations require athletes with 46 XY DSD with a natural testosterone level over 5 nmol/L, an d who experience a “material androgenizing effect” eir natural testosterone level to below 5 nmol/L, from that enhanced testosterone level, to reduce th ble period of at least six months in order to be eligi and to maintain that reduced level for a continuous to compete in a Restricted Event. Such reduction ca n be achieved, according to the IAAF evidence, by the use of normal oral contraceptives. spective requests for arbitration at the CAS In June 2018, Caster Semenya and ASA filed their re against the DSD Regulations adopted by the IAAF. Th e proceedings were conducted by the Hon. Dr. Annabelle Bennett (Australia), President, the Hon. Hugh L. Fraser (Canada) and Dr. Hans Nater For further information related to the CAS activity and procedures in general, please contact either Ma tthieu Reeb, CAS Secretary General, or Katy Hogg, Communications Officer. Châte au de Béthusy, Avenue de Beaumont 2, 1012 Lausanne, S witzerland. 21) 613 50 01, or consult the CAS website: www.tas- [email protected]; Tel: (41 21) 613 50 00; fax: (41 cas.org

2 Tribunal Arbitral du Sport Court of Arbitration for Sport (Switzerland) who heard the parties, their witnesse s and experts (specialising in gynaecology, eatment of DSD; genetics, endocrinology and andrology and the causes, diagnosis, effects and tr pharmacology; exercise physiology and sports perfor mance; medical and research ethics; sports regulation and governance; and statistics) in Lausa nne, Switzerland, from 18 to 22 February 2019. missions and materials and agreed to postpone the After the hearing, the parties filed additional sub issuance of the CAS award until the end of April 20 19. ts for arbitration considering that the Claimants By majority, the CAS Panel has dismissed the reques ere “invalid”. The Panel found that the DSD were unable to establish that the DSD Regulations w the Panel found that, on the basis of the evidence Regulations are discriminatory but the majority of submitted by the parties, such discrimination is a necessary, reasonable and proportionate means of achieving the IAAF’s aim of preserving the integrit y of female athletics in the Restricted Events. ed some serious concerns as to the future However, in a 165-page award, the CAS Panel express d practical application of these DSD Regulations. Whi le the evidence available so far has not establishe prima facie that those concerns negate the conclusion of proportionality, this may change in the future f how the Regulations are implemented. unless constant attention is paid to the fairness o owing main issues: In this regard, reference has been made to the foll ations in the context of a maximum The difficulties of implementation of the DSD Regul 1) permitted level of testosterone. The Panel noted the strict liability aspect of the DSD Regulations and expressed its concern as to an athl ete’s potential inability to remain in compliance with the DSD Regulations in periods of f ull compliance with treatment protocols, and, more specifically, the resulting consequences of unintentional non-compliance. al (in contrast to theoretical) significant The difficulty to rely on concrete evidence of actu 2) athletic advantage by a sufficient number of 46 XY DSD athletes in the 1500m and 1 mile events. The CAS Panel suggested that the IAAF consi der deferring the application of the DSD Regulations to these events until more evidence is available. The side effects of hormonal treatment, experienced 3) by individual athletes could, with further evidence, demonstrate the practical impossibility o f compliance which could, in turn, lead to the DSD Regulations. a different conclusion as to the proportionality of e strict framework of the arbitration, to solely The CAS Panel was restrained in its task, due to th or not. It nevertheless considered it appropriate determine whether the DSD Regulations were invalid to highlight its concerns with aspects of the DSD R egulations which arose from the submissions and evidence adduced by the parties during the CAS proc eedings. The CAS Panel strongly encouraged g the DSD Regulations, bearing in mind that the IAAF to address these concerns when implementin the DSD Regulations are a “living document”, as ass erted by the IAAF itself. Indeed, it may be that, ors may be shown to affect the overall on implementation and with experience, certain fact proportionality of the DSD Regulations, either by i ndicating that amendments are required in order to ensure that the Regulations are capable of being ap plied proportionately, or by providing further support for or against the inclusion of particular events within the category of Restricted Events. r the moment but an executive summary will be The full award with reasons remains confidential fo published by the CAS shortly. The CAS award may be appealed at the Swiss Federal Tribunal within 30 days. For further information related to the CAS activity and procedures in general, please contact either Ma tthieu Reeb, CAS Secretary General, or Katy Hogg, Communications Officer. Châte au de Béthusy, Avenue de Beaumont 2, 1012 Lausanne, S witzerland. 21) 613 50 01, or consult the CAS website: www.tas- [email protected]; Tel: (41 21) 613 50 00; fax: (41 cas.org

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