Chicago Journal of International Law

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At the time of this writing, a new International Association of Athletics Federations regulation preventing women with naturally high testosterone from competing in certain international athletics events has reignited the controversy over the male-female distinction in sports and its implications on individuals’ right to compete. A recent case filed by runner Caster Semenya and Athletics South Africa challenging this regulation before the Court of Arbitration for Sport, an arbitral tribunal that adjudicates disputes in international sports, sought to have the regulation overturned as discriminatory against women with a genetic intersex condition. Drawing on established international arbitration law, international norms in arbitrations, and relevant precedent, this Comment explores the evidentiary issues before the Court of Arbitration for Sport in Semenya’s challenge. In particular, this Comment argues that, given the high stakes of the case as well as the inequity in resources between the parties, the Court of Arbitration for Sport should have adopted unconventional rules with respect to the allocation of the burden of proof, the requisite standard of proof, and the evaluation of scientific evidence to ensure a fair hearing on the matter. The Comment ultimately concludes that the suggested changes are well within the discretion and ability of the Court of Arbitration for Sport to implement, slight challenges to the adoption of each proposed measure notwithstanding.

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