LA REGOLAMENTAZIONE DELL’ATTIVITÀ SPORTIVA ALLA PROVA DELLE CARATTERISTICHE SESSUALI E DEL GENERE: IL RISPETTO DEI DIRITTI UMANI IN CASTER SEMENYA

The contribution reflects on the appropriateness and possible limits of sport regulation when it is “challenged” by issues related to gender identity, sex and differences in sexual development, making specific reference to the case brought by intersex athlete Caster Semenya first to the Court of Arbitration for Sport and then to the European Court of Human Rights. The topic is of pressing relevance given the attention paid to the Algerian boxer Imane Khelif at the Paris 2024 Olympics. In particular, this paper aims at asking more legal questions than providing answers, in an attempt to show that the core of the problem lies in the male/female binarism that has always characterised sport and law. Not only is this binarism clearly no longer socially sustainable in the evolution of the expression of one’s gender identity as an element characterising one’s private and family life, but it is also not justifiable from the point of view of biological sex. This contribution will not address, other than to define intersex, elements of genetics or biology. The scope is, first of all, to briefly frame the experience of intersex athletes, also placing it in the context of sporting history, and then to analyse the situation of the South African sprinter Caster Semenya, whose case was decided by the Court of Arbitration for Sport, the Swiss Federal Supreme Court, and is pending in front of the European Court of Human Rights. In a second part of the contribution, we will question the reasons why international legal scholars are concerned about the intersection of gender, gender identity and sport. The analysis will focus, from the point of view of international human rights law and using a feminist lens, the binary and heteronormative structure of the law, with specific regard to sport. The conclusions are in no way meant to be definitive, but rather to enhance a perspective of enquiry that puts into question the foundation of the narrative as it has been conducted so far.