Cape Town – Athletics South Africa (ASA) on Saturday formally lodged its statement of appeal to challenge the IAAF’s decision to implement the new regulations at the Court of Arbitration for Sport (CAS) in Lausanne, Switzerland.
The IAAF’s rules relate to the eligibility of female athletes with hyperandrogenism (higher than normal levels of testosterone) to participate in international events and hold world records unless their testosterone levels are reduced through medical intervention to what the IAAF described as “acceptable levels” and to “level the playing fields” and “avoid them having an undue advantage over their rivals.”
“As a loyal Member Federation of the IAAF and to that extent, ASA has a duty to protect all its athletes, including female athletes who may fall foul of these Regulations,” ASA said via a press statement on Saturday.
The new IAAF ruling impacts South African athlete Caster Semenya.
ASA said it had engaged with the IAAF directly since May 10, 2018 declaring its intention to oppose the implementation of the regulations.
Subsequently, the IAAF’s legal representatives have been corresponding with lawyers appointed by ASA to represent its interests.
ASA also attempted to reach out to the IAAF and requested a meeting with their executive to discuss the regulations.
As a consequence, the president of ASA, Aleck Skhosana and the president of IAAF, Lord Sebastian Coe, have a scheduled meeting in the coming week.
Through their lawyers, meanwhile, the IAAF has indicated that it will proceed with the implementation of the regulations and contend that there is no basis on which the regulations are open to legal challenge.
The ASA’s challenge is led by the appointed legal and medical team, and are fully supported by the Department of Sport and Recreation, and SASCOC.
In the Statement of Appeal to CAS, ASA contends, inter alia, that:
(a) the Regulations discriminate impermissibly against certain female athletes on the basis of (i) natural physical characteristics; and/or (ii) sex;
(b) the Regulations, and their implementation, constitute an infringement of the rights of the affected female athletes to human dignity, an inviolable human right;
(c) the Regulations, and their implementation, constitute an infringement of the right of the affected female athletes to private life, which includes the right to the protection of a person’s physical, moral and psychological integrity, as well as the right to choose or to exercise personal autonomy. These are inviolable human rights;
(d) there is insufficient scientific evidence to assert that testosterone is the predominant factor which causes male athletes to perform substantially better than female athletes, and accordingly if testosterone does not determine male performance, it can logically not define the difference between male and female performance;
(e) there is insufficient scientific evidence that: (a) endogenous testosterone significantly improves athletic performance in female athletes; and (b) 5nmol/L is the scientifically correct threshold at which female athletes are in the “normal range” of endogenous testosterone for females;
(f) the Regulations are disproportionate in the context of: (a) the fact that they discriminate on the basis of a natural physical characteristic and/or sex; (b) violate fundamental human rights of affected athletes; (c) and cause harm to female athletes;
(g) the main scientific paper on which the Regulations is based is flawed in a number of respects;
(h) the scheme of the Regulations is such that identifying cases for assessment is subjective and potentially discriminatory;
(i) although the Regulations provide that the dignity and privacy of every individual must be respected at all times, in effect, there is a real risk of breaches of confidentiality, abuse and harassment which will result in the violation of an affected female athlete’s right to privacy and dignity;
(j) although the Regulations provide that no athlete will be forced to undergo any assessment, however, if an affected athlete refuses to submit to the testing, then the athlete will not be eligible to compete in the female classification of the restricted event at an international competition;
(k) the relevant athlete will be solely responsible for continuing to comply with the eligibility condition. This is unfair and discriminatory especially towards athletes from poor and disadvantaged social and economic backgrounds.
ASA has also applied for the implementation of the Regulations to be suspended pending the outcome of the CAS arbitration on the basis that there are prospects of success in the arbitration, irreparable prejudice and harm will result if the Regulations are implemented with effect from 1 November 2018, and the balance of interests favours affected female athletes.
– Semenya, meanwhile, has decided to similarly challenge these regulations and has appointed her own legal and medical team.
“ASA supports her application, and has instructed its legal and medical teams to continue supporting the endeavours of her legal and medical teams, respectively,” ASA concluded in the statement.