#sportslaw Caster Semenya loses at Swiss supreme court. (Very) basic "initial reaction" thread here, confined to human rights law issues. I leave further (more accurate and contextual) analysis on the decision's impact on the athlete & the sport to others https://www.abc.net.au/news/2020-09-09/caster-semenya-loses-testosterone-appeal/12643668

1. Caster Semenya appealed to Swiss Supreme Court arguing that World Athletics' regulations violated human rights principles relating to gender discrimination and human dignity

2. Swiss Court (as at CAS) held that World Athletics' regulations may prima facie breach human rights principles (esp discrimination) but were "necessary, reasonable and proportionate" to maintain fairness in women's athletics

3. Although in part addressed at the Swiss Court, expect further legal argument on this in the domestic courts of South Africa or at the ECtHR, and in the following ways:

4. Necessity - is the scientific advantage that Caster Semenya has, of such a nature/extent, that it is necessary ethically and otherwise for World Athletics to intervene by way of such regulations (the scientific evidence argument)?

5. Reasonableness - if WA's regulations are necessary, is the manner of implementation reasonable? Focus here on the fact that in order to continue to compete in her fav events CS will have to lower her testosterone level through medication (note here principle of human dignity)

6. Proportionate - if WA's regulation are necessary/reasonable is the manner of implementation proportionate? Focus here on whether the regulations disproportionately discriminate against a certain, limited group of athletes in a certain, limited number of events.

7. Overall, in assessing whether a human right (e.g. expression) can be qualified in a necessary etc way, the usual issue for a court is that that human right is competing against or in conflict with another human right or issue of public importance (public order, health etc)

8. Fundamental issue here has always been whether the qualification of anti-discrimination principles can be justified, not on the grounds, for eg, that without them athletes might be endangered in competing against CS but rather & simply that it is unfair, in the sporting sense

9. In sum, both CAS, & now the Swiss Court, have said that WA has justified the deviation from human rights law because (a) it is necessary - scientifically measurable, sporting disadvantage & (b) resulting regs have been drafted/implemented in a reasonable/proportionate manner.

10. It is interesting that it appears difficult to reconcile the findings at CAS/Swiss Court with those presented recently to the 44th session of the Human Rights Council on the 'intersection of race and gender discrimination in sport" https://www.ohchr.org/EN/HRBodies/HRC/RegularSessions/Session44/Pages/ListReports.aspx