Caster Semenya’s legal
saga against World Athletics centred on the alleged illegality of the
organization’s Differences in Sex Development (DSD) Regulations. These rules
imposed a blanket ban on athletes with testosterone levels exceeding prescribed
thresholds from participating in women’s competitions unless they artificially
reduced their testosterone levels through hormonal treatments. Semenya
challenged the Regulations before the Court of Arbitration for Sport (CAS) as a
world-class athlete directly impacted. Following her defeat at CAS, she filed
an annulment petition before the Swiss Federal Supreme Court (SFSC). After
losing again, Semenya resorted to the European Court of Human Rights (ECtHR),
which ultimately held Switzerland accountable for violating the athlete’s human
rights, including non-discrimination, respect for private life, and the right
to an effective remedy. This protracted jurisprudence sparked intense debate across
human rights, medical, and sports communities but received limited attention
within legal and, notably, arbitration circles. This article contends that the
SFSC erred in upholding the CAS award, which should have been annulled on
public policy grounds. The author also explores how fundamental human rights
violations can be incorporated into the otherwise enigmatic public policy
mosaic by critically analysing public policy as a ground for setting aside CAS
arbitral awards.