The Transnational Legal (Dis)Order of Sex in Sport

• In Event: Global Governance and Global Sports: Law, Regulation, and Hybrid Sovereignty

Abstract

In a recent landmark judgment, the European Court of Human Rights (ECHR) concluded that Switzerland violated the human rights of a South African athlete deemed ineligible to compete in the female category of international athletics competition. The ECHR found that Switzerland failed to provide sufficient institutional and procedural safeguards to allow Semenya’s complaints about these eligibility regulations—which bar women with certain “differences of sex development” from competition unless they reduce their natural testosterone levels—to be examined effectively. Notably, as the ECHR recognized, the source of Semenya’s complaint are regulations issued and approved by two non-state actors: World Athletics, a private sport association registered under the law of Monaco; and the Court of Arbitration for Sport (CAS), an arbitral tribunal located in Lausanne, which operates under the aegis of a Swiss foundation “of private law and of public interest” known as the International Council of Arbitration for Sport (ICAS). Nonetheless, the majority of the ECHR Chamber concluded that because the Swiss Federal Court (SFC) had exclusive jurisdiction to review the CAS decision upholding World Athletics’ regulations, Semenya’s complaint fell within Switzerland’s jurisdiction. The majority therefore found the ECHR competent to hear Semenya’s application, noting that, otherwise, access to the ECHR would be denied to whole category of people (professional athletes), which would not be consistent with the spirit and purpose of the Convention.
Notably, three judges of the seven-judge Chamber disagreed, seeing this as an expansion of the ECHR’s jurisdiction without sufficient legal basis. Among their reasons, the dissenting denied Semenya’s claim that she had no other avenue of recourse, asserting that “it is entirely possible for the national courts of countries where athletics competitions are organized to consider complaints of discrimination related to these competitions” and that “these courts, applying their own legislation within their own territory, would have a much greater legitimacy in examining these grievances than Swiss courts when applying Swiss [law] to the entire world.” While the dissent aptly points out that there is a legitimacy issue at the heart of transnational sport dispute resolution, its suggestion that individual national courts are necessarily better suited to address claims likes Semenya’s belies the actual legal structure of global sport governance, which is oriented toward global harmonization of rule enforcement. But who should be the final arbiter of the lawfulness of a global sport rule? And whose views should be considered and authoritative in coming to such a conclusion?
This paper explores the relationship between the jurisdictional arrangements of sport—both their harmonization and their fragmentation—and the role of knowledge and expertise in transnational legal processes, focusing on how this relationship shapes the way concepts like sex discrimination can be articulated and understood. More specifically, it examines non-discrimination (on the basis of sex) as a norm that (borrowing a term from Nico Krish) “straddles” different legal/regulatory jurisdictions, thus blurring the boundaries between public and private law, domestic and international law, and legal and non-legal authority. By the same token, the submission of expert evidence and third-party interventions functions as a “straddling practice” that gives meaning to the norm of non-discrimination. In other words, non-discrimination is a hybrid norm, an open concept with multiple sources; and experts shape the meaning of this norm, in part by emphasizing or de-emphasizing different sources.
In the context of the series of cases brought by Semenya, the norm of non-discrimination can be sourced from the World Athletics Constitution, the Olympic Charter, virtually every national constitution, multiple regional and international human rights treaties, the private international law concept of “public policy”, and national and international codes of medical ethics. Courts tasked with interpreting the norm of non-discrimination draw on certain sources based on their jurisdictional competence and the applicable law in a given case. This shapes what expertise each court deems relevant and persuasive. The straddling norm of non-discrimination serves as a pathway for both dialogue and disregard between different areas of knowledge and expertise. In turn, such expertise gives transnational normative content to the concept of non-discrimination on the basis of sex. The extent to which expertise crosses legal boundaries (i.e., limits on jurisdiction and applicable law) helps explain the extent of integration or separation between the multiple normative frameworks at play. Thus, the transnational legal (dis)order of sex in sport is, at least in part, the product of connections and disconnections between different expert perspectives.

Author

• Michele Krech, University of Chicago Law School