Establishment and Description of the Unit
Established in May 2016, the SOGIESC Unit’s mandate is to advocate for and work towards equality inclusion non-discrimination, non-violence, and non-heterosexism for lesbian, gay, bisexual, transgender, intersex, queer, questioning, and asexual persons (LGBTIQ+ persons).
This is done through hate-crime prevention and diligence in hate-crime prosecution; legal aid for LGBTIQ+ victims of discrimination and violence; LGBTIQ+ empowerment through human rights education and affirmative Masters and Doctorate scholarships; and country-based, regional and international advocacy actions.
Justice, equality, non-discrimination, and respect for the rule of law for LGBTIQ+ persons in Africa.
Working progressively towards the realisation of the human rights of LGBTIQ+ persons in Africa through advocacy, training, policy development, and social action.
Research and Advocacy on Intersex issues in Africa
The SOGIESC Unit has been working on the protection and promotion of the human rights of intersex persons in Africa. Through research in Africa, the Centre seeks to document the nature of human rights violations intersex persons are facing, and particularly use this for advocacy purposes at platforms in the African human rights system to influence legislative and policy changes at a national level. Some of the human rights violations that have been documented include medically unnecessary genital normalizing surgeries, lack of appropriate legal recognition and administrative processes to allow intersex persons to amend identity documents and unfair discrimination in schools, health care facilities, competitive sports, work and in detention.
Since 2017, the Centre has been involved in intersex advocacy activities at the African Commission on Human and Peoples’ Rights and the African Committee of Experts on the Rights and Welfare of the Child with an overall goal of achieving a soft law standard on the human rights of intersex persons. Apart from work at the regional level, we also work with grassroots organizations to achieve and local interventions. We are also involved in the capacity building of intersex activists through our short courses and human rights education.
Most recently we have seen the discrimination of intersex bodies through a judgement against Caster Semenya by the Swiss Federal Supreme Court. The judgement effectively bans Caster Semenya from participating in certain competitive sporting events (400m to the mile) unless she reduces her testosterone levels to ‘acceptable female’ levels. The judgment has been translated into English by the Centre for Human Rights and can found here. The Centre’s view on is that the Swiss Supreme Court has not made a reasonable justification for subjecting hyper-androgenic female athletes to unwanted and non-consensual hormonal treatment (with the possibility of side effects), in order to reduce the testosterone levels to ‘acceptable female levels’. In our view, the infringement on their right to human right to dignity, bodily autonomy and physical integrity is not necessitated by the argument for competitiveness. The decision is a set-back as it comes at a time when there is increased knowledge and a greater understanding of intersex bodies and sex characteristics. The Centre suggests that other alternative steps can be implemented to seek redress for Caster.
The Caster Semenya case and options for further action within the international human rights law framework
In April 2018, the International Association of Athletics Federations (IAAF) issued Eligibility Regulations on Female Classification (Athlete with Differences of Sexual Development) for events from 400m to the mile, including the 400m, hurdles, 800m and 1 500m events.
Caster Semenya unsuccessfully challenged these Regulations at the Court of Arbitration for Sport (CAS). The CAS, based in Lausanne, Switzerland, is a private legal person under Swiss law. Its arbitration awards are subject to the appellate jurisdiction of the Swiss Federal Supreme Court. Caster Semenya’s case at the CAS was on 30 April 2019 dismissed on the basis that “the regulations are discriminatory but that, on the basis of the evidence submitted by the parties, such discrimination is a necessary, reasonable and proportionate means of achieving the legitimate objective of ensuring fair competition in female athletics in certain events and protecting the “protected class”. While the heads of arguments and application presented by Caster Semenya’s legal team at the CAS are not available on record, a summary of the application is included in the decision of the case. The application encompassed both scientific and human rights-based arguments.
Caster Semenya’s appealed against the finding of the CAS to the Swiss Federal Supreme Court. After initially suspending the Regulations, the Swiss Supreme Court later reversed its position, allowing the Regulations to remain in force. The Court’s decision on the merits of the case is still pending.
Anticipating an adverse finding (a decision by the Swiss Federal Supreme Court that confirms the CAS finding), two main avenues to muster international pressure under international human rights law present themselves: (a) within the Council of Europe (CoE), and (b) within the United Nations (UN).