CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 11 juillet 2023

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margin-bottom:0pt; text-align:right } .s81EF3014 { margin-top:14pt; margin-left:34pt; margin-bottom:6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s11AD46B1 { font-family:Arial; font-size:7.33pt; vertical-align:super; color:#0069d6 } .sF28C8B01 { margin-top:0pt; margin-bottom:0pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8780D7B2 { margin-top:14pt; margin-bottom:6pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s8D72F0B6 { margin-top:14pt; margin-left:32.01pt; margin-bottom:6pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; padding-left:1.99pt; font-family:Arial; font-weight:bold } .sD551674B { margin-top:0pt; margin-bottom:0pt; text-indent:18pt; text-align:justify } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .sFDDBECCB { margin-top:14pt; margin-left:32.01pt; margin-bottom:6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:1.99pt; font-family:Arial; font-weight:bold } .sADADF4A7 { font-family:Arial; text-decoration:underline } .s3DB046A9 { font-family:Arial; font-style:italic; background-color:#ffffff } .s391E78BA { font-family:Arial; background-color:#ffffff } .s40F41F73 { margin-top:0pt; margin-bottom:0pt; text-align:right } .sA1D3DA2E { margin-top:0pt; margin-bottom:0pt; text-align:justify } .sF6A12959 { width:33%; height:1px; text-align:left } .s85226119 { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:10pt } .s3DC36BA9 { font-family:Arial; text-decoration:underline; color:#0069d6 } THIRD SECTION CASE OF SEMENYA v. SWITZERLAND (Application no. 10934/21)   JUDGMENT   Art 14 (+ Art 8) • Private life • Lack of sufficient institutional and procedural safeguards in respect of discrimination against professional athlete with differences of sex development (DSD) required under non-State regulations to lower her natural testosterone level to be allowed to compete in women’s category in international competitions • Art 14 (+ Art 8) applicable • Applicant in comparable situation to other female athletes and treated differently as excluded from competitions by DSD Regulations • Compulsory arbitration under sports regulations with no access to ordinary courts • Court of Arbitration for Sport (CAS), despite its very detailed reasoning, did not apply Convention provisions and left open serious questions as to validity of DSD Regulations • Review by Federal Supreme Court very limited, confined to question whether CAS arbitral award was compatible with public policy • No thorough and sufficient examination of complaint of discriminatory treatment and no appropriate and adequate weighing-up of all interests at stake • Lack of differentiation between transgender and intersex athletes not addressed by Federal Supreme Court • Discrimination on grounds of sex and sex characteristics requiring “weighty reasons” by way of justification • High stakes for applicant: right to practise her profession • Narrow margin of appreciation overstepped • Measure neither objective nor proportionate to aim pursued . Art 13 + (Art 14 + 8) • Ineffective remedies • Lack of sufficient institutional and procedural safeguards • Effective response not provided by Federal Supreme Court to applicant’s substantiated and credible complaints of discrimination, owing in particular to its very limited power of review. STRASBOURG 11 July 2023   THIS CASE WAS REFERRED TO THE GRAND CHAMBER WHICH DELIVERED JUDGMENT IN THE CASE ON 10/07/2025   This judgment may be subject to editorial revision. Table of Contents INTRODUCTION THE FACTS I.   BACKGROUND TO THE CASE II.   CAS AWARD OF 30 APRIL 2019 III.   PROCEEDINGS IN THE FEDERAL SUPREME COURT AND ITS JUDGMENT OF 25 AUGUST 2020 RELEVANT DOMESTIC AND INTERNATIONAL LEGAL FRAMEWORK AND PRACTICE I.   DOMESTIC LAW II.   DOMESTIC PRACTICE III.   INTERNATIONAL LAW AND PRACTICE A.   Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine (“the Oviedo Convention”) B.   Work of the Commissioner for Human Rights of the Council of Europe on human rights and intersex people C.   Resolution and report of the Parliamentary Assembly on the fight for a level playing field – ending discrimination against women in the world of sport D.   Report of the United Nations High Commissioner for Human Rights, “Intersection of race and gender discrimination in sport” E.   Relevant World Athletics regulations 1.   Eligibility Regulations for the Female Classification (Athletes with Differences of Sex Development) – “the DSD Regulations” 2.   Eligibility Regulations for Transgender Athletes (2019) F.   Relevant CAS or domestic court cases 1.   The Dutee Chand case (CAS) 2.   The Renée Richards case (New York County Court, United States of America, 16 August 1977) THE LAW I.   PRELIMINARY OBSERVATIONS ON THE SCOPE OF THE CASE AND THE COURT’S APPROACH II.   THE GOVERNMENT’S PRELIMINARY OBJECTION THAT THE COURT LACKS JURISDICTION RATIONE PERSONAE AND RATIONE LOCI A.   The parties’ submissions 1.   The Government 2.   The applicant B.   The Court’s assessment 1.   Applicable principles 2.   Application of those principles to the instant case 3.   Conclusion III.   ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION IN CONJUNCTION WITH ARTICLE 8 A.   Admissibility 1.   Applicability of Article 14 in conjunction with Article 8 (a)   General principles (b)   Rights capable of being engaged in the present case 2.   Conclusion as to admissibility B.   Merits 1.   The parties’ submissions (a)   The applicant (b)   The Government (c)   Third-party interveners 2.   The Court’s assessment (a)   General principles (b)   Application of these principles to the present case (i)   Whether there was a ground of discrimination prohibited by Article 14 (ii)   Whether there has been a difference in treatment between persons in analogous or relevantly similar situations (iii)   The nature of the obligation imposed on Switzerland and its margin of appreciation in the present case (α)   Preliminary remarks (β)   Power of review of the CAS and the Federal Supreme Court (γ)   Scientific uncertainty as to the justification for the DSD Regulations (δ)   Weighing-up of interests and account taken of side effects caused by compulsory medication (ε)   Horizontal effect of the discrimination (στ)   Comparison with the situation of transgender athletes (ζ)   Conclusions IV.   ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION V.   ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION Admissibility 1.   Submissions of the parties and the third-party interveners 2.   The Court’s assessment (a)   General principles (b)   Application of the above principles VI.   ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION A.   Admissibility 1.   The parties’ submissions 2.   The Court’s assessment B.   Merits 1.   The parties’ submissions (a)   The applicant (b)   The Government 2.   The Court’s assessment (a)   General principles (b)   Application of the above principles VII.   ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION VIII.   APPLICATION OF ARTICLE 41 OF THE CONVENTION A.   Damage B.   Costs and expenses OPERATIVE PROVISIONS CONCURRING OPINION OF JUDGE PAVLI Jurisdiction and scope of review The challenge: binary sports categories facing a non-binary world Swiss ordre public and European public order Whether the ends justify the means (a)   The nature of the discrimination at play and the respective burden of justification (b)   The impact on the applicant’s bodily and mental integrity Conclusion PARTLY CONCURRING, PARTLY DISSENTING OPINION OF JUDGE SERGHIDES Introduction 1.   Article 8 complaint 2.   Article 3 complaint 3.   The applicant confronted with a forced choice: between a violation of her Article 8 right and a violation of her Article 3 right – ultimately amounting to a violation of both of those rights 4.   The absolute character of Article 3 and the “situational vulnerability” caused to the applicant by the forced choice 5.   The continuous character of the forced choice imposed on the applicant 6.   Conclusion JOINT DISSENTING OPINION OF JUDGES GROZEV, ROOSMA AND KTISTAKIS In the case of Semenya v. Switzerland, The European Court of Human Rights (Third Section), sitting as a Chamber composed of:   Pere Pastor Vilanova , President ,   Yonko Grozev,   Georgios A. Serghides,   Darian Pavli,   Peeter Roosma,   Ioannis Ktistakis,   Andreas Zünd , judges , and Milan Blaško, Section Registrar, Having regard to: the application (no.   10934/21) against the Swiss Confederation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a South African national, Ms Mokgadi Caster Semenya (“the applicant”), on 18   February 2021; the decision to give notice of the application to the Swiss Government (“the Government”), the observations submitted by the respondent Government and the observations in reply submitted by the applicant; the observations received from the following organisations and individuals who had been given leave to intervene as third parties by the Section President (“the President”): the South African Human Rights Commission; Athletics South Africa; World Athletics; the Human Rights Centre Ghent University; the International Commission of Jurists (ICJ); the Canadian Centre for Ethics in Sport; Tlaleng Mofokeng, United Nations Special Rapporteur on the Right to Health, with Nils Melzer, Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, and Melissa Upreti, President of the Working Group on discrimination against women and girls; the World Medical Association (WMA) and Global Health Justice Partnership (GHJP), an initiative of the Yale Law School and Yale School of Public Health; Human Rights Watch joined by Payoshni Mitra and Katrina Karkazis; the Vlaamse Ombudsdienst (Flemish Ombudsman); and, jointly, Women Sport International, the International Association of Physical Education and Sport for Girls and Women (IAPESGW) and the International Working Group for Women in Sport (IWG); the President’s decisions to treat some of the documents in the case file as confidential under Rule 33 of the Rules of Court; the President’s decision to give priority to the application under Rule 41. Having deliberated in private on 17 January and 30 May 2023, Delivers the following judgment, which was adopted on the last-mentioned date: INTRODUCTION 1.     The application was lodged by an international-level athlete, specialising in middle-distance races (800 to 3,000 m), who complained about a set of regulations of the International Association of Athletics Federations (IAAF – now called World Athletics) requiring her to take hormone treatment to decrease her natural testosterone level in order to be able to take part in international competitions in the female category.   Having refused to undergo hormone treatment, she was no longer able to take part in international competitions.   Her legal actions challenging the regulations in question before the Court of Arbitration for Sport (CAS) and the Federal Supreme Court were rejected. She relied on Articles   3, 6, 8, 13 and 14 of the Convention in support of her arguments. THE FACTS 2.     The applicant was born in 1991 and lives in Pretoria . She was represented by Ms S. Sfoggia, a lawyer practising in Paris. 3.     The Government were represented by their Agent, Mr A. Chablais, of the Federal Office of Justice. BACKGROUND TO THE CASE 4.     The applicant is a South-African international-level athlete, specialising in middle-distance races (800 to 3,000 m). Among other achievements, she won the gold medal in the women’s 800   m race at the Olympic Games in London (2012) and Rio de Janeiro (2016). She is also a three-time world champion over that distance (Berlin 2009, Daegu 2011, and London 2017). 5 .     After her victory in the women’s 800 m race at the World Championships in Berlin in 2009, the applicant was made to undergo sex testing [1] to determine whether she was “biologically male”, and the IAAF informed her that she would have to decrease her testosterone level below a certain threshold if she wished to be eligible to compete in her preferred events in future international athletics competitions. 6.     Despite suffering significant side effects from the hormone treatment she then underwent, the applicant won the women’s 800 m race at the World Championships in Daegu (2011) and the Olympic Games in London (2012). 7 .     Following the interim award of 24 July 2015 delivered by the CAS in the case of Dutee Chand (see paragraphs 71 et seq. below) by which the relevant IAAF regulations in force at the time were temporarily suspended on the ground that the IAAF had not shown that hyperandrogenic [2] athletes possessed a significant performance advantage as compared to other female athletes, the applicant stopped taking her hormone treatment. In 2016 she once again won gold at the Olympics in the women’s 800 m race. 8.     On 23 April 2018 the IAAF issued a new set of regulations entitled “Eligibility Regulations for the Female Classification (Athletes with Differences of Sex Development)” (“the DSD Regulations”, see paragraphs   59 et seq. below). 9.     The applicant, who did not dispute that she was a “Relevant Athlete” within the meaning of the DSD Regulations, refused to comply with them since, in her submission, they required her to submit to hormone treatment with poorly understood side effects with the aim of lowering her natural testosterone level in order to be allowed to participate in the female category of an international competition. 10.     On 18 June 2018 she lodged a request for arbitration with the CAS, which has its seat in Lausanne, in which she challenged the validity of the regulations in issue (CAS 2018/O/5794). 11.     On 25 June 2018 Athletics South Africa (ASA), the South African athletics federation, also applied to the CAS (CAS 2018/O/5798), supporting the applicant’s case. 12.     The CAS joined the cases on 29 June 2018. On 23 July 2018, it informed the parties of the names of the three arbitrators on the panel which would examine their case. 13.     While the proceedings were ongoing, the IAAF amended the list of differences of sex development (DSD) covered by the DSD Regulations; from that point onwards, they applied only to “46 XY DSD” athletes, that is, to persons with XY chromosomes, not to those with XX chromosomes. In other words, athletes with XX chromosomes having an increased level of testosterone were no longer subject to the DSD Regulations. 14 .     At the end of the exchange of written pleadings, the CAS sat in Lausanne from 18 to 22 February 2019. Representations from many experts were heard in a hearing lasting five days. CAS AWARD OF 30 APRIL 2019 15.     In a reasoned award of 30 April 2019, the CAS rejected the request for arbitration. The majority found that, while the DSD Regulations were discriminatory, they were a necessary, reasonable and proportionate means of achieving the aims of the IAAF, namely to ensure fair competition [3] . 16 .     The Panel began by specifying that, in the absence of agreement between the parties, it could not rule ex aequo et bono and would “apply the IAAF’s Constitution and Rules in conjunction with the Olympic Charter and in subsidiary, where necessary, Monegasque law”. 17 .     Having examined the merits of the joined applications, the arbitrators found as follows [] : “B.c.a.     Ms. Semenya is a woman. She was born a woman and has been raised as one. She has lived and run as a woman. She is – and always has been – recognised in law as a woman and has always identified as a woman (award, paragraph 454). The IAAF is entrusted with enacting regulations to facilitate and ensure fair competition for the benefit of all athletes (award, paragraph 456). Post-puberty, male athletes outperform female athletes in terms of athletic ability and this difference is insurmountable. That is why the IAAF considered it necessary to provide for a ‘protected class’ of female athletes (award, paragraph 456). The necessity to have separate male and female categories is not in dispute (award, paragraph 461). Once it has been acknowledged that it is legitimate to have separate male and female categories, it is imperative to establish an objective, fair and effective way to determine which persons may participate in the ‘protected class’ (award, paragraphs 456 and 462). The answer, at first, seems simple: restrict entry to that ‘protected class’ to female athletes and deny entry to male athletes. However, that straightforward answer assumes that sex is binary for all purposes, which it is not. It is not so simple. While elite competitive athletics has been divided into discrete binary categories of male and female, a neat and discrete boundary between male and female does not exist in nature. The male/female categorisation at the heart of competitive athletics thus does not map perfectly onto the diverse spectrum of sex characteristics that exists in natural human biology (award, paragraph 457). In this connection, it is important to bear in mind that the labels ‘male’ and ‘female’ may mean different things in different contexts. For example, these words may refer to a person’s legal sex (i.e. their sex in the eyes of the law), their subjective gender identity (i.e. how they identify themselves) or some specific aspect of their individual physiology (for example their gonadic characteristics or their hormonal profile). A rule that seeks to define ‘maleness’ or ‘femaleness’ for one purpose can easily be perceived (rightly or wrongly) as an attempt to challenge a person’s ‘maleness’ or ‘femaleness’ for other purposes or in other contexts (award, paragraph 463). In recent years, a further complicating factor has begun to emerge. The question of legal sex has begun to evolve in many countries around the world. In the eyes of the law, sex is no longer exclusively confined to the statuses of ‘male’ and ‘female’. Some countries now recognise other legal sex statuses, such as ‘intersex’ [4] . Moreover, some domestic legal systems permit an individual born as one sex to change their legal sex (award, paragraph 458). The DSD Regulations are the latest iteration of the IAAF’s struggle to reconcile the binary male/female classification in competitive athletics with the variegated spectrum of biological sex characteristics that exist in nature and the increasingly complex and diverse national laws governing legal sex (award, paragraph 459). This case therefore involves a collision of scientific, ethical and legal conundrums. It also involves incompatible, competing, rights. It is not possible to give effect to one set of rights without restricting the other set of rights. On one hand is the right of every athlete to compete in sport, to have their legal sex and gender identity respected, and to be free from any form of discrimination. On the other hand, is the right of female athletes, who are relevantly biologically disadvantaged vis-à-vis male athletes, to be able to compete against other female athletes and to achieve the benefits of athletic success, such as positions on the podium and consequential commercial advantages (award, paragraph 460). ...” 18.     As to the factual and scientific issues raised by the case, including any advantage DSD athletes may have compared to female athletes, the CAS found as follows: “B.c.c.     A number of complex factual and scientific issues emerged during the proceeding. In light of those issues and the direct bearing that they have upon the legal tests that the Panel must apply, it is necessary to understand the factual matrix before addressing the legal issues confronting the Panel (award, paragraph 473). A number of eminent experts provided their opinions on the questions in issue. Many of the opinions expressed in the written expert reports were refined by the mechanism of a series of ‘hot tubs’, where the experts gave concurrent oral evidence before the Panel. The challenges made to the independence of some of those experts are rejected. The Panel is satisfied that each expert used his or her best endeavours to express their own genuinely held views (award, paragraph 475). B.c.c.a.     It is accepted by all parties that circulating testosterone has an effect from puberty, in increasing bone and muscle size and strength and the levels of haemoglobin in the blood. After puberty, the male testes produce on average 7 mg of testosterone per day, while the female testosterone production level stays at about 0.25 mg per day. The normal female range of serum testosterone of a woman with no DSD (excluding cases of PCOS [Polycystic Ovary Syndrome]), produced mainly in the ovaries and adrenal glands, is 0.06 to 1.68 nmol/L. The normal male range of serum testosterone concentration ... is 7.7 to 29.4 nmol/L (award, paragraph 489). It is not in dispute that the level of testosterone of 5 nmol/L provided by the DSD Regulations represents a level that no 46 XX woman would exceed, save for potentially a small fraction of women with PCOS (award, paragraph 490). While testosterone may not be the only factor that results in an increase in lean body mass, higher levels of haemoglobin and increased sporting ability, it is nevertheless the primary factor at the origin of the above-mentioned physical advantages. ... The overwhelming majority view of the experts was that testosterone is the primary driver of the physical advantages and, therefore, of the difference between males and females in athletic performance. The Panel accepts this conclusion (award, paragraph   492). B.c.c.b.     Turning next to the main characteristics of athletes who have XY   chromosomes and DSD (46 XY DSD athletes), the Panel began by observing that all the DSD, such as 5α ‑ Reductase deficiency (5-ARD), can affect testosterone levels. Individuals with 5 ‑ ARD have male chromosomes (XY), male gonads (testes not ovaries) and levels of testosterone in the male range (award, paragraph 497). B.c.c.c.     The Panel considers it appropriate to focus on whether women with 46   XY   DSD have an athletic advantage over other female athletes and, if so, whether the magnitude of that advantage is capable of subverting fair competition in certain athletic events (award, paragraph 507). ... In support of its position that 46 XY DSD athletes have an athletic advantage over other female athletes, the IAAF adduced evidence from a variety of sources, including scientific evidence regarding the physiological effects of conditions such as 5-ARD and the relationship between endogenous testosterone and athletic performance ..., observational data regarding the correlation between endogenous testosterone levels and athletic performance in two World Championships (Daegu and Moscow), and statistical evidence concerning the more prevalent incidence of 46 XY DSD athletes in certain athletic disciplines (award, paragraph 517). The Panel has carefully considered all of the scientific evidence adduced by the parties in these proceedings, and the majority of the Panel (‘the majority’) accepts that the preponderance of the evidence is that female athletes with 5-ARD or other DSD have levels of testosterone in the male range, and that this results in a significantly enhanced sport performance ability, for example, by action in the body to increase muscle mass and size, and levels of haemoglobin (award, paragraph 535). It concludes that that enhanced performance ability translates in practice to a significant performance advantage in certain athletics events covered by the DSD Regulations [(award, paragraph 536)]. In reaching this conclusion, the majority refers in particular to the striking over-representation of 5-ARD athletes on the podium of Restricted Events at the international level. According to the evidence put forward by the IAAF, in the general population the incidence of [people] with DSD is 1 in 20,000; in elite women’s competition, it is 7 in 1,000 (140 times greater). The population incidence of 5-ARD is less than 1 in 100,000 (<0.001%), a percentage which is disproportionate to the considerable number of medals won in international competitions (Olympic Games, World Championships, etc.) and the innumerable victories in recent years in Restricted Events at Diamond League Series races by 5-ARD athletes (award, paragraphs 533 and 537). The majority considers that the contrast between the rare incidence of 5-ARD in the general population and the overwhelming success that women with 5-ARD have achieved in Restricted Events provides powerful evidential support for the conclusion that female athletes with 5-ARD have a significant performance advantage (award, paragraph 537). It does not purport to quantify precisely the exact percentage of that advantage. Having examined and considered the totality of the evidence, the majority concludes that it provides adequate support for the claim that female athletes with a 46   XY DSD enjoy a significant performance advantage over other female athletes, which is of such magnitude as to be capable of subverting fair competition (award, paragraph   538). 19.     As to the necessity and reasonableness of the DSD Regulations, the CAS held as follows: “B.c.e.     As to the necessity of the DSD Regulations, the Panel reiterates that ensuring fair competition in the female category of competitive athletics is a legitimate objective (award, paragraph 556). Once it is recognised that it is legitimate to have separate male and female categories, it is necessary to devise criteria to determine which individuals belong in which category. The Panel accepts that reference to a person’s legal sex alone may not always constitute a fair and effective means of making that determination. The purpose of having separate categories is to protect individuals whose bodies have developed in a certain way following puberty from having to compete against individuals who, by virtue of their bodies having developed in a different way following puberty, possess certain physical traits that create such a significant performance advantage that fair competition between the two groups is not possible. In most cases, the former group comprises individuals with a female legal sex and a female gender identity, while the latter group comprises individuals with a male legal sex and male gender identity. However, this is not true of all cases. Natural human biology does not map perfectly onto legal status and gender identity. The imperfect alignment between nature, law and identity is what gives rise to the conundrum at the heart of this case. The fact that a person is recognised in law as a woman and identifies as a woman does not necessarily mean that they lack those insuperable performance advantages associated with certain biological traits that predominate in individuals who are generally (but not always) recognised in law as males and self-identify as males. It is human biology, not legal status or gender identity, that ultimately determines which individuals possess the physical traits which give rise to that insuperable advantage (award, paragraphs 558-59). It may be legitimate to regulate the right to participate in the female category by reference to those biological factors rather than legal status alone. The Panel stresses, however, that the necessity criterion can only be established where the evidence establishes to the requisite degree of proof that the biological factor confers a sufficiently significant performance advantage in each athletic discipline that is covered by the Regulations. If a certain biological factor is shown to confer a substantial performance advantage in Event A but not in Event В, then regulations that purported to regulate eligibility to participate in Event В by reference to that biological factor would not fulfil the necessity requirement (award, paragraph 560). The IAAF says that all of the many different factors that contribute to sport performance (training, coaching, nutrition and medical support, etc.) are equally available to men and women. On the other hand, only men are exposed to the increased testosterone levels that produce the physical advantages that males have over females in sport performance. The IAAF submits that if the purpose of the female category is to prevent athletes who lack that testosterone-derived advantage from having to compete against athletes who possess it, then it is necessarily ‘category defeating’ to permit any individuals who possess that testosterone-derived advantage to compete in that category (award, paragraph 563). The majority accept the logic of the IAAF’s submission, according to which the degree of the performance advantage caused by elevated testosterone levels is so great as to require that athletes who lack that advantage be protected. The Panel accepts that the criteria that regulate who may compete in the ‘protected’ female category must align with the reason for establishing that ‘protected’ category in the first place. If the ‘protected’ category’s existence is founded on the significant impact of particular performance-related biological characteristics, in specific events, then it is legitimate to regulate participation in the ‘protected’ category in those events by reference to those characteristics (award, paragraph 564). In the Panel’s view, the necessity of the DSD Regulations turns on the question whether the degree of the performance advantage that Relevant Athletes enjoy by virtue of their elevated testosterone levels is so significant as to require the imposition of restrictions on them if they wish to compete in the female category. The answer to this question turns on a disputed issue of science (the existence and magnitude of the performance advantage) and an evaluative assessment (whether that magnitude is so great as to warrant the imposition of eligibility restrictions) (award, paragraph 569). That performance advantage may not be of the order of 10-12% but it is sufficient to enable those athletes consistently to beat women who do not have 46 XY DSD (award, paragraph   574). On the basis of the evidence put forward by the parties and the representations made by the various experts, the majority concludes that androgen sensitive female athletes with 46 XY DSD enjoy a significant performance advantage and that this advantage is attributable to their exposure to levels of circulating testosterone in the adult male range (award, paragraph 575). It considers that the elevated testosterone levels that 46 XY DSD athletes possess can create an insuperable advantage over other female athletes who do not have a 46 XY DSD condition (award, paragraph 579). The majority also accepts that the IAAF has demonstrated the necessity of establishing regulations governing the eligibility of female athletes with 46 XY DSD to participate in certain events in order to maintain fair competition in female athletics (award, paragraph 580). On the same grounds, the majority finds that there is a reasoned basis for the DSD Regulations (award, paragraph 583).” 20.     In respect of whether the DSD Regulations were proportionate, the CAS found as follows: “B.c.f.     Examining the validity of the DSD Regulations with regard to the principle of proportionality, the majority observes, first of all, that it is neither necessary nor appropriate to seek to make any assessment of the possible wider impact of the DSD Regulations outside of the world of athletics, of which the IAAF is the governing body (award, paragraph 589). B.c.f.a.     The Claimants submit that, in order to be eligible to compete in a Restricted Event, Relevant Athletes must undergo testosterone-suppressing treatment that is both medically unnecessary and has serious and potentially dangerous side effects. In response, the IAAF emphasises that the DSD Regulations do not require any athlete to undergo any surgery in order to comply with the requirements in the Regulations. Further, it submits that hormonal treatment is a recognised standard of care for athletes with various DSD conditions and for male-to-female transgender patients. The side effects of such treatment are generally limited and the effects of the treatment are quickly reversible when the treatment ends (award, paragraph 591). The Panel proceeds, as did the parties, on the basis that the DSD Regulations can be evaluated in the context of hormonal treatment using contraceptive pills, recognising that such treatment is not as efficient in inhibiting testosterone as the use of gonadotropin hormone-releasing (GnRH) agonists, while withdrawal of the latter is likely to have greater side effects. If oral contraceptives were not capable of achieving the result of maintaining the level of testosterone below the 5 nmol/L required by the DSD Regulations – thus requiring an athlete to turn to GnRH agonists or gonadectomy (surgical removal of the gonads) – a different analysis of proportionality would need to be undertaken (award, paragraph 592). The evidence from those experienced in treating individuals with DSD is that ordinary doses of oral contraceptives are efficient in reducing testosterone to normal female levels. Prof. [G.-L.] spoke of her clinical experiences generally rather than with athletes, while Prof. [H.] spoke of her experience in reducing testosterone from 20 to 1 nmol/L. However, the evidence of such treatment on elite athletes is extremely limited; it consists principally of evidence concerning Ms. Semenya’s use of oral contraceptives to reduce her testosterone levels. There are no current guidelines to instruct how a clinician would use oral contraceptives to reduce testosterone levels in a woman with a 46 XY DSD to less than 5 nmol/L and keep it at that level, but there are expert clinicians who have done so (award, paragraph 593). The Panel accepts that the use of oral contraceptives to reduce testosterone levels can cause a range of unwanted side effects. It notes that expert evidence adduced by the Claimants describes different adverse effects that may result from the various pharmacological and surgical methods to reduce testosterone. Thus, the expert evidence supports Ms. Semenya’s evidence as to the side effects that she says that she experienced (award, paragraph 595). The evidence of the side effects experienced by Ms. Semenya concerned reactions experienced when bringing her testosterone level down to below 10 nmol/L (that is, the maximum testosterone level permitted under the previous regulations issued by the IAAF). There was no (or no sufficient) evidence before the Panel to enable any conclusion to be drawn as to whether those side effects would increase if the maximum permitted level were further decreased to 5 nmol/L. The Panel proceeds on the assumption that, at the very least, the side effects would be as strong as those experienced by Ms. Semenya (award, paragraph 596). It is not possible to conclude that all of the symptoms Ms. Semenya encountered while attempting to reduce her levels of testosterone were due to the medication, or that they could not otherwise be controlled, or that they would continue ..., or that another form of oral contraceptive, if prescribed, would result in the same side effects (award, paragraph 597). In any event, there is also the evidence of clinicians who say that the side effects are not different in nature to those experienced by the many thousands, if not millions, of other XX women, who take oral contraceptives. Those clinicians also say that care would be taken to individualise treatment to minimise side effects when using such oral contraceptive treatment to manage the testosterone levels of women with 46 XY DSD. As to the social, mental and psychological problems, these have not been shown to be attributable simply and exclusively to the use of oral contraceptives. Further, the evidence did not establish the length of time that the symptoms occurred and whether they could all be attributed directly to the taking of the medication (award, paragraph   598). In the majority’s view, requiring 46 XY DSD athletes to take oral contraceptives to lower their testosterone levels in order to compete in the female category in Restricted Events at International Competitions is not, of itself, disproportionate. In the circumstances, the majority of the Panel is of the view that, on the present evidence, the side effects that may be experienced by such athletes as a result of taking an oral contraceptive do not outweigh the need to give effect to the DSD Regulations in order to attain the legitimate objective of protecting and facilitating fair competition in the female category (award, paragraph 599).” 21.   &#