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

Annette Greenhow, Kim Weinert

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.


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References


Reference List:

A Articles/Books/Reports

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B Cases

Mokgadi Caster Semenya v International Association of Athletics Federations (Award) (Court of Arbitration for Sport, Case No 2018/O/5794, 30 April 2019)

C Legislation

Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013 (Cth)

Anti-Discrimination Act 1991 (Qld)

Anti-Discrimination Act 1992 (NT)

Anti-Discrimination Act 1977 (NSW)

Equal Opportunity Act 2010 (Vic)

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D Treaties

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Human Rights Council, Elimination of Discrimination Against Women and Girls in Sport, 40th sess, Agenda Item 3, UN Doc A/HRC/40/L.10/Rev. 1 (25 February-22 March 2019)

E Other

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International Association of Athletics Federation (IAAF) Constitution (1 January 2019)

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Victorian Equal Opportunity and Human Rights Commission

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