South Africa’s track federation will appeal against the recent Caster Semenya ruling, the country’s sports ministry has confirmed.
The government ministry said two of the three judges who heard the case at the court of arbitration for sport were “conflicted,” they claim facts were ignored and that the track and field’s governing body was given “unfettered latitude” to do as it pleases.
Athletics South Africa (ASA), the governing body of track and field in the country, was one of two parties alongside Semenya to take the International Association of Athletics Federations to court to challenge its testosterone regulations in competitions for women.
The IAAF won the case and last week rules came into effect requiring the South African 800m Olympics champion and other female athletes with “differences of sex development” conditions and high levels of natural testosterone to medically lower them to be eligible to compete in events from 400m to a mile.
At a Diamond League track meet in Qatar two days after losing the case, the 28-year-old Semenya said she would not take medication and follow the rules.
Athletics South Africa have declined to comment on any appeal and Semenya’s lawyers have also not confirmed the news but the sports ministry spokesman Vuyo Mhaga insisted that ASA made the decision to appeal and the ministry had merely been informed by ASA of the move.
Parties can appeal a Cas decision on a very limited number of grounds. They include a lack of jurisdiction, a violation of procedural rules, or a ruling that’s incompatible with public policy.
An appeal would be heard by the Swiss Federal Tribunal. ASA or Semenya must lodge an appeal by 31 May, within 30 days of the Cas ruling.
They could also ask for an interim ruling by the tribunal to suspend the testosterone regulations until a full appeal is heard. That could allow Semenya to defend her 800m title at the world championships in Doha, Qatar, in September without having to medically lower her testosterone level, which the IAAF says gives her an unfair advantage over other women.
In its statement, the South African sports ministry outlined ASA’s grounds for an appeal. It said two of the three judges who heard the Semenya case were “conflicted” because they sat on a Cas case involving the IAAF’s previous testosterone regulations brought by Indian sprinter Dutee Chand in 2015. Semenya lost her case by a 2-1 majority ruling of the panel.
The sports ministry also said the scientific and medical evidence presented by Semenya’s lawyers was strong yet “the facts before court and the outcome do not match.”
The ministry said the Cas decision did not fully address how the IAAF would implement the contentious hormone limits, which have been described as ethically questionable by the World Medical Association.
“The pertinent legal questions that the court should have addressed were not addressed,” the South African sports ministry statement said. “The court simply gave the unfettered latitude to the IAAF to do as it pleases.”
ASA and Semenya could have a case if Cas judges ignored strong scientific evidence disputing how much advantage the South African runner gets from her high natural testosterone. The IAAF’s data has been criticised as flawed by some scientists.
The Swiss federal tribunal could also consider if Semenya’s human rights have been violated. Cas agreed that the testosterone rules discriminated against Semenya but decided the discrimination was necessary to ensure overall fairness in female competition.
As well as the court appeal, the South African sports ministry said it would approach the United Nations general assembly “to sanction the IAAF for violating international human rights instruments”.