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09 September 2020, 10am

Regulations fair, necessary and proportionate, says WA

CAS gender ruling in favour of World Athletics upheld

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World Athletics has welcomed the decision by the Swiss Federal Tribunal (SFT) to support the ruling made in April 2019 by the Court for Arbitration in Sport on rules concerning gender identity and fair competition.

“World Athletics fully respects each individual’s personal dignity and supports the social movement to have people accepted in society based on their chosen legal sex and/or gender identity,” said WA. “As the SFT specifically recognised, however, the Differences of Sex Development (DSD) Regulations are not about challenging an individual’s gender identity, but rather about protecting fair competition for all female athletes. The Swiss Federal Tribunal acknowledged that innate characteristics can distort the fairness of competitions, noted that in sport several categories (such as weight categories) have been created based on biometric data, and confirmed that ‘It is above all up to the sports federations to determine to what extent a particular physical advantage is likely to distort competition and, if necessary, to introduce legally admissible eligibility rules to remedy this state of affairs.’

“The Court of Arbitration for Sport (CAS) agreed with World Athletics and now the SFT has also agreed that: ‘In some contexts, such as competitive sport, biological characteristics may, exceptionally and for the purposes of fairness and equal opportunity, trump a person’s legal sex or gender identity.’

“Based on these findings, the CAS decision cannot be challenged. Fairness in sport is a legitimate concern and forms a central principle of sporting competition. It is one of the pillars on which competition is based. The European Court of Human Rights also attaches particular importance to the aspect of fair competition. In addition to this significant public interest, the CAS rightly considered the other relevant interests, namely the private interests of the female athletes running in the ‘women’ category.

“Throughout this long battle, World Athletics has always maintained that its regulations are lawful and legitimate, and that they represent a fair, necessary and proportionate means of ensuring the rights of all female athletes to participate on fair and equal terms. It has rejected the suggestion that they infringe any athlete’s human rights, including the right to dignity and the right to bodily integrity. We are very pleased that the highest court in Switzerland has now joined with the highest court in sport in endorsing World Athletics’ arguments.”

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