On Tuesday, after more than a year of waiting (during which time Caster Semenya has not been allowed to compete in World Athletics’ races), we finally received the verdict of the Court of Arbitration for Sport (CAS) in Lausanne. It would have come as a relief had justice prevailed, but unfortunately the journey is set to continue.

The Federal Supreme Court of Switzerland has refused to set aside a 2019 ruling against 800m Olympic gold medallist Caster Semenya, and upheld the Court of Arbitration for Sport ruling which allows for controversial regulations issued by the International Association of Athletics Federations IAAF (World Athletics). This ruling supports World Athletics’ efforts to prevent Semenya from defending her 800m gold medal at the Tokyo Olympics in the summer of 2021 unless she undergoes dangerous medical procedures to lower her testosterone levels.

My colleague who led Semenya’s most recent appeal, Dorothee Schramm, a partner with Sidley Austin LLP, said: “This decision is a call to action – as a society, we cannot allow a sports federation to override the most fundamental of human rights.” Schramm is right and that is why I am calling on all South Africans to rally around Semenya to encourage our nation’s greatest runner and her continued fight for an end to discrimination in athletics.

Naturally, the judgment has come as a massive disappointment. It has cost millions of rands, dozens of wasted opportunities for Semenya and many months of legal consults with experts around the world to take on those in the sporting echelons of power. Unfortunately, sense did not prevail with the five judges who have the power to determine whether women who are naturally endowed with “elevated levels of testosterone” are allowed to compete in the international athletics arena.

Although we accept the verdict of the CAS, Semenya is considering all of her options internationally and domestically. I am buoyed by the global support offered during this legal battle. That support remains. This setback will not be the end of Semenya’s story. She has an amazing team of advisors and lawyers behind her from countries around the world, including Canada, Switzerland, the UK, India, the US and the European Union.

Semenya is unflappable and has taken the news of her loss in the Swiss Court of Appeal in her remarkable stride. Without much of a skip of a beat, she relayed to me last night that she will not go down, that her career may be stalled, but is not over. While the doors of the IAAF may be closed, they are not locked. She promises to be seen next year in full flight, pursuing every challenge head-on.

Myself and Semenya have been flooded with media interview requests from across the world and representatives in Canada, Europe and South Africa have been fielding calls. It is clear from the overwhelming response that this decision doesn’t just have repercussions for Semenya, but for the entire sporting world.

In July 2020, I wrote an article for Daily Maverick sharing the good news about the UN High Commissioner for Human Rights, which released a South African-sponsored report in favour of the “elimination of discrimination against women and girls in sport”. The release of this report was an important one for us because it signalled the growing international consensus against discriminatory and unfair policies in sport.

Although this UN report on the elimination of discrimination in sport was not binding and does not constitute an official resolution, it constituted a step in the right direction in support of Semenya – and other women athletes who have been prevented from participating – with equal treatment and with dignity in the international athletics arena.

As a South African collective, we have made substantial progress on the issue of discrimination in sports and with each decision, we are being strengthened to go to battle again, stronger. And as South African lawyers, we will use all avenues in our defence to further the cause against unfair treatment and discrimination.

We also note that the World Medical Association (WMA) has called on physicians around the world to take no part in implementing the World Athletics regulations and has demanded their withdrawal. In April 2019, the WMA stated that the World Athletics rules “constitute a flagrant discrimination based on the genetic variation of female athletes and are contrary to international medical ethics and human rights standards”.

Semenya knows this fight isn’t just about her, but for future generations of young women, particularly young women from the developing world that may not have the resources or access to legally challenge their inclusion at the highest levels of sport.

Until Semenya and other female athletes from developing nations are free to compete as they are in international athletics competitions, the fight continues.

This is a time to rally around our nation’s greatest runner and celebrate her indomitable spirit, her courage for disappointment and her quiet defiance in the face of the impossible. DM

Greg Nott has been Caster Semenya’s lawyer for 10 years. He is a Board Member of the NEPAD Business Foundation and the Chairman of Southern Africa-Canada Chamber of Commerce (SACANCHAM). Greg is a Partner and Director at international law firm, Norton Rose Fulbright and the Head of the Africa Practice.