It’s turning into a marathon, but Caster is sticking to her fight for athletics justice
The momentum is growing. Change is coming. Support for #OperationRunFree is gaining ground. SA’s greatest athlete, triple world champion and double Olympic titleholder Caster Semenya, is preparing for another victory. The woman from Limpopo who was born to run will continue to fight until all like her can run free.
Last week the Swiss Federal Supreme Court ruled that Semenya cannot defend her 800m Olympic title in Tokyo next year unless she medically — and dangerously — lowers her testosterone levels, which she will not do.
Support for #OperationRunFree has flooded in from the presidency, the Commission for Gender Equality, the South African Human Rights Commission, the portfolio committee on sports, arts & culture and the African Union, among others.
I remember 2009 vividly; it was Semenya against the world. At just 18, she stormed through to win gold in the 800m event of the International Association of Athletics Federations World Championship. Shortly afterwards, the association (which in November last year changed its name to World Athletics) held a media conference, stating that Semenya was undergoing gender testing.
She has been singled out more than any other athlete in world athletics. But she has not wasted this crisis and we are hopeful that change in unfair international athletics regulations will eventually come.
Taking an emotional toll, and a financial one
Our challenge of the World Athletics regulations before the Court of Arbitration for Sport (CAS) in Switzerland, and the appeal against that court’s decision, were extremely expensive, both in emotional and financial terms.
Here was a young African woman who had to find the money to represent herself, working with foreign lawyers in Canada and Switzerland, all of whom had to be paid. While we were working on our appeal, Semenya was prevented from earning a living and competing in international athletics meetings. It was all very fancy in Lausanne, but expensive and intimidating. In future we need to find appropriate forums for athletes of all countries to appear — need it be Lausanne, Switzerland?
The only ground for appeal available in this case was a violation of Swiss public policy, which has only been accepted once in more than 30 years and is subject to important restrictions. By law, the Swiss supreme court could not examine whether the CAS was right or wrong on the facts, but it was bound by the controversial factual findings of only two out of the three CAS arbitrators.
The supreme court found that the World Athletics regulations clearly and seriously violate Semenya’s physical integrity — the required hormonal drug intervention is not medically indicated, has negative health effects and is not based on the athlete’s free consent.
The intrusive physical examinations that are required under the regulations constituted a second violation accepted by the supreme court. The court also found that the World Athletics regulations violate Semenya’s economic freedom.
Despite accepting these violations of important human rights, the supreme court concluded that, on the basis of its limited scope for assessing the CAS decision, they were insufficient for a violation of Swiss public policy. This conclusion was, again, based prominently on the controversial factual findings of the majority of the CAS panel.
The Swiss Federal Supreme Court would like us to believe that it has the final word on the issue, but we are not convinced. We will do our best to open the door. As Semenya keeps saying to me, the door is closed but not locked! In my view, the acknowledgement of the violation of her human rights on certain points leaves the door open for a legal challenge at the European Court of Human Rights.
Sport is not about medical intervention
The Swiss supreme court states that it made its ruling “to guarantee fair competition for certain running disciplines in female athletics”.
Surely fairness in sports is athletes being able to compete in their natural states, without any medical interventions? Sports has always been fair competition. How did we get from that principle to the stage where we require athletes who have no real choice to endanger their health to artificially slow them down?
But there is growing international consensus against discriminatory and unfair policies in sport. In July 2020, the UN High Commissioner for Human Rights released a South African-sponsored report in favour of the “elimination of discrimination against women and girls in sport”. The release of this report and its adoption was important for us because it signals growing support for Semenya.
The report “recognises that sports regulations and practices that discriminate against women and girls on the basis of race, gender or any other grounds can lead to the exclusion of such women and girls from competing as such on the basis of their physical and biological traits”.
Semenya wants to set a precedent for all
Up to this point, this matter has been about Semenya the athlete against World Athletics, but it is about much more than that. I believe we are living in historical times, times we will look back on with proud reflection. Because unlike what was expected — that this latest ruling would force us to give up on the cause — it has only increased Semenya’s resolve to keep going.
This fight isn’t just about her, but about future generations of young women, particularly young women from the developing world who may not have the resources or access to legally claim their inclusion at the highest levels of sport.
Semenya knows she is a great athlete, despite the attempts to discredit her. As her former Australian 800m rival Madeleine Pape told the BBC: “Semenya is in an exceptional athlete. Anyone who has won all those medals has got to have something that sets her apart. I don’t think that it is testosterone.” Pape used to think that Semenya was a cheat, but today she is a vocal supporter of her cause.
And such is the extraordinary star power of our South African Olympian. She is an icon, and I can say this, having walked this road with her for more than a decade. She reminds me of some of history’s political greats in her relentless pursuit of her vision of a better society. No legal challenge has overcome her, global resistance has not silenced her, the scrutiny and humiliation has not impacted her performance.
Over the years I have drawn strength and courage from my remarkable friend. She is still so young, yet her wisdom, her calm, her ability to focus on the goals she has set herself are otherworldly.
I know that no-one will be able to break her spirit; I just hope that she will see the victory that she deserves — both in a change of athletics regulations and on the track.