CAS award in Caster Semenya case not contrary to substantive public policy

In a recent French language decision, slated for publication in the official court reporter of leading cases, the Swiss Supreme Court dismissed an application to set aside a Court of Arbitration for Sports (CAS) award, holding that it was not contrary to substantive public policy (article 190(2)(e), Private International Law Act (PILA)).

The decision involved Caster Semenya, an Olympian middle-distance runner from South Africa, (Athlete) and Athletics South Africa (ASA) to World Athletics (formerly International Association of Athletics Federations (IAAF)), based in Monaco.

In April 2018, the then IAAF published new rules entitled Regulations for the Female Classification: Athletes with Differences of Sex Development  (DSD Regulations), according to which female athletes presenting a testosterone level above an established limit are obliged to artificially reduce it in order to compete in some women's athletics competitions.

As she wished to compete naturally, the Athlete and the ASA challenged the DSD Regulations before the CAS, arguing that they discriminated against her on the basis of sex or gender (or both). The CAS confirmed, by majority, that, while being discriminatory, the DSD Regulations were necessary and reasonable to ensure a level playing field because female athletes with higher levels of testosterone have an unsurmountable biological advantage in comparison to other athletes belonging to a "protected category" of athletes.

The Athlete and the ASA challenged the CAS award before the Swiss Supreme Court, alleging several violations of substantive public policy (article 190(2)(e), PILA), including a breach of human dignity and personality rights, as well as a breach of the prohibition on discrimination.

The Supreme Court initially granted the Athlete's ex parte request that the DSD Regulations be inapplicable during the pendency of the Supreme Court proceedings, which it later reversed in a procedural order after hearing IAAF's arguments.

In an unusually long decision (34 pages), the court dismissed the setting-aside application, stating that the DSD Regulations do not breach substantive public policy and are a proportionate means to ensure a level playing field among all female athletes. (A and another v International Association of Athletics Federation and others (Cases 4A_248/2019 and 4A_398/2019) (25 August 2020).)