Expert blog: Why the pending Caster Semenya judgment is a good time to talk about all discrimination in sport
With a decision pending from the European Court of Human Rights on the case of South African sprinter Caster Semenya, Nottingham Law School sports discrimination expert, Associate Professor Seema Patel, explores the current conversation around gender and sport, and explains why human rights should be considered in all areas of discrimination in sport.
Discrimination in sport and the rights of athletes is a central feature of current sport, law, and society discourse. A momentous clash has emerged between the traditional rules, practices and culture of sport, the growing awareness of diverse and marginalised identities, and the pressing need for human rights and anti-discrimination benchmark standards in sport.
The case of South African sprinter Caster Semenya sits at the intersection of this critical moment for inclusion and exclusion and emphasises the struggle to balance the competing interests of the marginalised athlete, sports governing bodies as the regulator, and participants in sport.
At the time of our introduction to Semenya in 2009, when she was subjected to gender verification testing by World Athletics (WA), the sport terrain was different, with relatively little understood about gender eligibility, human rights responsibilities, or diversity and inclusion agendas. As we await the ECtHR judgment, the landscape has evolved, and these matters are slowly receiving merited consideration. Yet there is some distance to go to reconcile the dilemma.
The ECtHR decision will come at a time when gender eligibility is at its most contentious and has polarised supporters and opponents of gender diverse inclusion and the meaning of fair competition. Although sport has departed from its historic policing of females, underlying biological aspects of previous regimes continue to dominate current regulation. The scientific foundation for eligibility rules drives the exclusion of gender diverse athletes, but experts are divided on the correlation between sex categories, the effects of testosterone, sport performance, advantage, injury risk and gender diversity. Progress is being made but the debate remains in its infancy, with developing research into the scientific, legal, and sociological issues around gender identity and inclusion.
Beyond sport, there have been wider advances and shifts in gender perspectives in society, with strengthened calls for legal gender status reforms that accurately reflect the changing nature of sex and gender and are more inclusive in their scope. Augmented gender rights are being negotiated to remove barriers to legal recognition, refresh valuable human rights principles, and widen the remit of sex and gender definitions in legislation to include gender identity. The changing tides of legal gender status may impact the approach taken to gender eligibility in sport in the future and the Semenya case has certainly acted as an impetus for these reforms.
From the outset of Semenya’s battle, little value was placed on potential incompatibility of gender rules with intrinsic human rights. As it advanced, there has been a growing narrative about the appropriate relationship between sport and human rights and how the two spheres might interact, with increased commentary on how international human rights provisions might apply to private sport regulation and arbitration to guarantee human rights protection for those involved in sport. Sports commitment to human rights has improved in theory, but they are under pressure to fulfil human rights responsibilities. The ECtHR decision will signal a connection between sport and human rights will contribute to our interpretation of this legal conundrum.
Some sports such as English cricket are being faced with the reality of widespread discriminatory practices, and they are being forced to address this by drawing upon past practice and actively engaging with diversity and inclusion agendas, celebrating difference, and listening to the voices of marginalised groups to inform inherent changes. The Semenya case is inherently concerned with sex and gender, but racism was also a concern. The examination of intersectionality in this context is greatly needed to strengthen anti-discrimination objectives.
The Semenya story signifies a fundamental meeting of inclusion, gender identity, human rights and anti-discrimination practices in sport, law and society. The legal challenge has played an instructive part in defining fair competition and attempting to confront discrimination issues in sport. The ECtHR decision will be important, relevant and welcomed as key stakeholders continue to navigate these issues and seek appropriate solutions to balancing inclusion and exclusion. There is still much to be achieved and our understanding of gender issues requires further research and consultation.
Dr Seema Patel is Associate Professor of Law and an expert and researcher on discrimination in sport at Nottingham Law School.
Seema is a regular international media commentator on issues relating to inclusion and exclusion in sport, such as the cases of Caster Semenya and Dutee Chand. Seema is also one of three Cricket Disciplinary Commission (CDC) panel members, who have been hearing the UK cricket racism case.
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