The International Perspective

Many highly publicised matters relating to discrimination in recent years have arisen from challenges made to sporting regulations in respect of issues such as DSD and transgender eligibility.

Lord Coe, President of World Athletics and one of seven candidates vying for the IOC President role when it comes up to election in March, has recently spoken out on his philosophy. He said “…the protection of the female category, for me, is absolutely non-negotiable. If you are not prepared to do that… then you really will lose female sport.” Although protection of female athletes is not a controversial cause, the difficulty of this emotive subject arises from the need to balance sporting equity and safety, with inclusivity for athletes.

In part one of our insight into discrimination in sport, Duncan Brockway, focussed on the England and Wales perspective. Below Imogen Mitchell-Webb, Associate Partner and Head of Sport, looks at some high-profile discrimination cases pursued around the world. Thank you also to Archie Brown, Paralegal, for his input into this article.

If you require any support or advice in respect of these issues, please contact Imogen.Mitchell-Webb@h-f.co.uk.

Caster Semenya

Semenya, a two-time Olympic Champion and three-time World Champion over 800 metres, has been engaged in a legal saga with World Athletics for many years. Semenya has been diagnosed with Differences of Sex Development (“DSD”), a condition where a person’s chromosomal make-up would usually be associated with a certain sex, and their reproductive organs and/or external genitalia would usually be associated with the opposite sex. In Semenya’s case, this results in naturally higher testosterone levels.

Semenya has challenged World Athletics’ DSD regulations, which require athletes with DSD to take medication to lower their testosterone levels to be eligible to compete. The case was unsuccessful in the Court of Arbitration for Sport (“CAS”) and Swiss Federal Tribunal, as although the regulations were found to be discriminatory, it was considered that this was necessary to uphold fair competition. Semenya then took her case to the European Court of Human Rights (“ECHR”) which found that the DSD regulations violated her human right to private life and discriminated against her. This decision was appealed by Semenya’s opponent, the Swiss authorities, and the Grand Chamber hearing took place in May. The judgment is awaited.

It remains to be seen how the appeal decision will influence national and international legal and sporting regulatory frameworks within athletics and other sports.

Lia Thomas

Another high-profile example is the case of American swimmer Lia Thomas, who is transgender. In 2022, World Aquatics amended its eligibility policy so that transgender athletes could only compete in women’s categories if they had not undergone any part of male puberty beyond Tanner stage 2 or before the age of 12 (whichever is later). Up until this point, transgender athletes had to lower their testosterone levels in order to compete.

Thomas filed a petition at the CAS, arguing that the regulations were invalid and unlawful as they were discriminatory to her. In June this year, CAS dismissed the petition as Thomas was not a member of US Swimming and therefore was not ‘sufficiently affected’ by World Aquatics’ regulations to challenge them. It will be interesting to see whether Thomas or any other affected athletes take further steps to challenge the regulations.

Interestingly, World Aquatics is one of few governing bodies that have created an ‘open category’ for athletes who do not meet the eligibility criteria for either men’s or women’s competitions. The effectiveness of this option as a measure to further inclusivity in grassroots and professional sport is uncertain, as the option was available at the Swimming World Cup in 2023 and no entries were received.

Valentina Petrillo

In contrast to the above is the case of Valentina Petrillo, an Italian transgender sprinter who took part in the Paris 2024 Paralympic Games. The International Paralympic Committee allows governing bodies to set their own policies in respect of transgender athletes and the relevant governing body, World Para Athletics, permits a person who is legally recognised as a woman to compete in women’s categories at the Paralympics. This approach contrasts with World Athletics’ approach to eligibility of transgender athletes and illustrates the differentials arising in the sporting world.

What will the future hold?

Some commentators support a move towards consistency across all sports in respect of issues such as DSD and transgender athletes, which arguably may level the playing field amongst professional sports. Andrew Parsons, president of the International Paralympic Committee, stated “I do think that the sport movement has to, guided by science, come up with better answers for these situations and for transgender athletes”. Lord Coe’s view is that the IOC also requires a “very, very clear policy in this space” and that the international sporting federations are looking to the IOC to take a lead.

Until there is a universal and settled position across sports, the regulations of governing bodies on these developing topics are liable to challenge; either by athletes who are barred from competing, or those who challenge the right of other athletes to compete. Whilst various governing bodies grapple with balancing the important issues of sporting equity and inclusion, this will remain fertile ground for legal challenges and governing bodies will need to stay ahead of the curve in respect of scientific developments and industry standards in order to avoid or mitigate the impact of legal and regulatory disputes.

Insight Sport