竞技体育视域下双性人的权利保护--基于“塞门娅案”裁决的省思

Protection of the Rights of Intersex People in the Field of Competitive Sports: Reflections on the Decision of the Caster Semenya Case

2019年,国际体育仲裁院裁决了塞门娅诉国际田联DSD规则上诉案,认为双性人女运动员必须外服药物降低体内睾酮指标,才能参加部分田径女子项目。一方面,国际体育仲裁院对“塞门娅案”的裁决体现了竞技体育公平竞争价值的内在精神,也回应了其他女性参赛运动员平等竞赛的诉求;另一方面,该项裁决对双性人运动员的健康权、人格尊严等基本人权产生了消极影响。该裁决为了保护商业体育赛事的公平性,而牺牲少数特定人群的基本人权,这一做法不符合优先保护基本人权的价值取向。商业体育竞技赛事应当在平等保障每位运动员人权的基础上,通过制定合理、必要的规则,实现公平竞技,进而促进体育事业的长久、健康发展。

At present, the mainstream sports events are usually divided into two categories: men’s events and women’s events. Intersex athletes can only choose one of them to participate. The DSD rules promulgated by IAAF further restrict the rights of intersex athletes in sports events, stipulating that intersex female athletes must reduce their testosterone levels to a certain standard before they can participate in some women’s track and field events. The Caster Semenya Case is a landmark case in the protecting the rights of athletes with a special gender. In 2019, the Court of Arbitration for Sport(CAS) supported the DSD Regulations in the case of Intersex Semenya v. International Association of Athletics Federations(IAAF). The reason for this decision was that the DSD rule seemed to discriminate based on gender characteristics on the surface;but in nature it was to maintain fair competition. Intersex female athletes with natural male testosterone have a significant competitive advantage over female athletes. The restriction is a necessary, reasonable and proportionate means for legitimate goals. However, these reasons cannot effectively respond to the following doubts: Firstly, it cannot be fully proved that the high testosterone index of intersex people constitutes a "competitive advantage". Although IAAF and CAS scientific experiments and expert demonstrations point out that testosterone enables intersex female athletes to have stronger physical bodies, it is difficult to quantify the impact of natural testosterone levels on the results of women’s 400 meters and other events. Moreover, the IAAF does not prohibit intersex female athletes from participating in all women’s sports activities. In other words, this advantage is not recognized as a "competitive advantage" in most women’s competitions. The scientific studies provided by the arbitration tribunal only emphasizes that hormone levels contribute to athletic muscle performance, but there is no direct evidence that the degree of effect on events such as 400 meters is beyond the tolerance of other events. Secondly, the strict liability standard of anti-doping cannot be analogized to the high anti-testosterone hormone. Athletes’ doping, as a kind of fraud, is an exogenous dominant behavior that can be identified with scientific and prudent standards. However, the natural testosterone hormone is endogenously dominant. Intersex female athletes are not at fault. Thirdly, artificially reducing the hormone levels of intersex female athletes may also have a negative impact on the fundamental human rights of intersex athletes, such as the right to health, privacy and personal dignity. Generally speaking, the decision does not conform to the value orientation of prioritizing the protection of fundamental human rights. In conclusion, sports are an expression of human meaning. Free participation in sports activities, as a specific manifestation of human rights, should be given prioritized protection. On the basis of equal protection of athletes’ human rights, sports competitions should achieve fairness by formulating reasonable and necessary rules.