Following Caster Mokgadi Semenya’s loss on her appeal at the Switzerland's Federal Supreme Court against the restriction of testosterone levels in female runners, the Commission for Gender Equality (CGE) and the South African Human Rights Commission (SAHRC) met on the 15th September 2020 to chart the way forward on this issue of gross human rights violations.
The matter for these two Chapter Nine Institutions is more than an individual fight for Semenya but one that affects Black women in developing countries. It is about restoring her human dignity and rights to participate and have income from sport, as well as rights of other athletes, who have also been discriminated and prejudiced by the new International Association of Athletics Federations (IAAF) discriminatory regulations that came to effect in 2019.
The CGE and SAHRC are still opposed to the IAAF’s modification of its regulation to require female athletes to maintain testosterone levels below 5 nanomoles per litre for a continuous period of at least six months, particularly with Differences of Sex Development (DSD). The two institutions’ opposition is based on their strong conviction that the effects and impact of this new regulation will be detrimental and therefore amount to a severe violation of the rights of female athletes like Caster Semenya whose body produces what is considered by the IAAF ‘unnaturally high’ levels of testosterone.
The implementation of female eligibility regulations denies athletes with variations in sex characteristics an equal right to participate in sports and violates the right to non-discrimination more broadly. Other current approaches to regulating female eligibility may have a negative impact on athletes’ enjoyment of their human rights and may amount to violations of the right to freedom from torture and other cruel, inhuman or degrading treatment or punishment.
The Special Rapporteur on torture and other cruel, inhumane or degrading treatment or punishment, and the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health alongside the other mandate holders, has emphasized that while the 2018 IAAF regulations do not force athletes to undergo any assessment or treatment, they leave athletes with the choice of either undergoing these intrusive medically unnecessary assessments or being subjected to treatments with negative impacts on their health and well-being. Such treatments also entail the risk of harm to physical and bodily integrity.
Both institutions believe the outcome at Switzerland’s Federal Supreme Court amounts to a severe violation of the right to bodily integrity, human dignity and privacy of athletes like Caster Semenya whose bodies, through no fault of their own, produce what is considered high levels of testosterone.
The CGE and SAHRC are therefore strongly determined to mount a global and national advocacy and support for women athletes like Caster Semenya and anyone else who falls foul of the new IAAF’s regulation.
The CGE and SAHRC will jointly engage the President of the Republic of South Africa, Honourable Cyril Matamela Ramaphosa in his capacity as the Chairperson of the African Union, the Ministries of Women, Youth and persons with Disabilities and Sports, Arts and Culture; the National Assembly through Portfolio Committees of Women, Youth and Persons with Disabilities and Sports, Arts, and Culture; the Department of International Relations and Cooperation. This petition will not be limited to South Africa and Africa but also United Nations.
International human rights norms and standards place obligations on States to prevent and provide redress for discrimination. These include specific treaty provisions regarding State obligations of non-discrimination on the basis of sex, race and gender, in particular those enshrined in the International Covenant on Economic, Social and Cultural Rights, the International Covenant on Civil and Political Rights, the International Convention on the Elimination of All Forms of Racial Discrimination and the Convention on the Elimination of All Forms of Discrimination against Women, and in the jurisprudence emanating from the related treaty bodies, it is for this reason that the South African Government will be engaged in order to ensure the discriminatory regulations by IAAF are thwarted as they do not conform with International Human rights norms and standards.
The two institutions will also jointly engage partners, key stakeholders and activists, government and private sector to join hands with the Commission for Gender Equality in the advocacy and defense of human rights of Caster Semenya and other women athletes in a similar position.
Commission for Gender Equality
Cell: 083 579 3306
The South African Human Rights Commission
Cell: 082 645 8573