Diversity, Equity and Inclusion (or Exclusion) in Sport: A Review of the Caster Semenya Case

Abstract

The right to participate in sport, regardless of race, gender, or other defining characteristics is enshrined in various international arrangements. Ratification of these instruments by nation states is located in the development of policies and initiatives which embrace and promote a ‘sport for all’ ethos — where principles of diversity, equity and inclusion are advanced and promoted. International sport federations and world governing sporting authorities are expected to develop policies and regulations as guardians and custodians of the sport to advance this ethos. The parameters of the participatory right to sport have recently been questioned following the arbitral award by the Court of Arbitration (‘CAS’) involving Caster Semenya and the International Association of Athletics Federations (‘IAAF’). This article briefly critiques the Semenya decision using Dworkin’s rights theory and contributes to the literature by framing the analysis of decision-making vis a vis an intersex person’s right to sport as one that involves measuring individual rights against utilitarian preferences. It posits the question as to whether it is time to review the wider social context and human rights considerations in sport-related disputes and whether the private arbitral framework of the CAS is the appropriate forum in such cases.