Saturday, September 19, 2009

South Africa Atheletics Head Apologises Over Caster Semenya Controversy

Chuene apologises for lying about Semenya tests

PRETORIA, SOUTH AFRICA Sep 19 2009 11:54

Athletics South Africa (ASA) president Leonard Chuene admitted on Saturday that he refused to accept advice from ASA team doctor Harold Adams to withdraw Caster Semenya from the world athletics championships in Berlin last month.

Chuene also admitted that he had lied to the South African public about not having any knowledge of gender tests conducted on Semenya in Pretoria last month.

He added that ASA's deception on the matter was intended to protect Semenya's confidentiality.

"I now realise that it was an error of judgement and I would like to apologise unconditionally. As president of ASA I will not, however, apologise for allowing caster Semenya to run or for protecting her privacy.

"We fully agree that we could have handled this matter differently but something like this has never happened in this country before and we at ASA believe we acted in the best interests of the athlete," he said.

But while Chuene was advised by Adams to withdraw Semenya, he said he refused to do so without any concrete evidence. He said that Adams' verbal recommendation was not sufficient for him to make a decision on such a sensitive matter.

Chuene also said that Adams, who travelled with Semenya to Berlin, should have advised the athlete to withdraw herself from the championships.

The IAAF is still awaiting the results of gender tests conducted in Berlin but Chuene said he would not accept those results because the world governing body did not follow the correct protocol.

'We do nothing ...'
The Mail & Guardian reported on Friday about an exchange of emails between Adams and Chuene that made it clear that Chuene knew Semenya was gender-tested.

The email was sent by Adams to ASA general manager Molatelo Malehopo and copied to Chuene on August 5. The World Championships began on August 15.

It reads: “After thinking about the current confidential matter I would suggest that we make the following decisions. 1. We get a gynae opinion and take it to Berlin. 2. We do nothing and I will handle these issues if they come up in Berlin. Please think and get back to me ASAP.”

An emailed response from Malehopo to Adams, sent on the same day, reads: “I will suggest that you go ahead with the necessary tests that the IAAF might need.” - Sapa

Source: Mail & Guardian Online
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Parliament meeting with ASA postponed

CAPE TOWN, SOUTH AFRICA Sep 18 2009 16:25

The National Assembly's sport committee has postponed its meeting with Athletics South Africa (ASA) scheduled for Tuesday.

This was because of the change in the parliamentary programme next week, Parliament's communications service said in a statement on Friday.

The meeting would be rescheduled in the next parliamentary term, starting on October 6, it said.

ASA was expected to appear before the committee to explain its role in the Caster Semenya saga.

On Wednesday, Democratic Alliance spokesperson Donald Lee said he had written to committee chairperson Butana Komphela requesting that ASA appear before the committee to explain its role in the debacle that "has resulted in one of South Africa's premier athletes having her privacy invaded and her constitutional right to dignity violated".

"Today, after discussions with the chair, he has agreed to the DA's request and, pending scheduling, will aim to call ASA before the committee in the next two weeks," Lee said.

However, on Thursday Komphela denied that the committee would haul ASA before it to explain its role in the saga.

Komphela told the South African Press Association the decision to call or not to call ASA had to be a collective one made by the committee and not the chairperson on his own.

"Lee must present this matter to say he wants the parliamentary committee to call ASA or Leonard Chuene [ASA president]. From there, if the multiparty committee decides to call ASA then we will summon them.

"If the committee refuses, then we won't call ASA ... I don't take decisions on my own, the parliamentary committee decides whether the matter is urgent or not," Komphela said. -- Sapa

Source: Mail & Guardian Online
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Intersex and the Law

SALLY GROSS: COMMENT - Sep 19 2009 06:00

Intersex has become the focus of public interest because of the media storm around the questioning of Caster Semenya's sex. Our exemplary post-apartheid Constitution of 1996, with its Bill of Rights and Equality Clause, seemed at first glance to afford intersexed South Africans unassailable legal protection.

But my experience as an intersexed person showed me that this was not so. The law has been bolstered since then, but awareness of this fact is needed to afford protection to intersexed people in practice.

An intersexed person is one whose sexual characteristics from birth do not follow the typical paths of differentiation that we label "male" and "female". This might involve ambiguity of the external genitalia, chromosomal pattern, internal reproductive structures, the gonads or the balance of hormones.

"Hermaphrodite" is probably a more familiar term than "intersexed". With its Greek mythological connotations, however, it makes those like me sound like mythological creatures. We are real people: "intersex" describes us more adequately.

A United States study estimates that one in 500 people displays non-typical sexual differentiation that is so marked that it attracts medical -- generally surgical -- intervention. By common consent South Africa has possibly the highest prevalence in the world.

In 1997, as a direct result of medical evidence that I am intersexed, I ceased to be a human being in South African law despite the Bill of Rights. It took 15 months to achieve recognition of my humanity in law. So the effect of being intersexed on one's civil and human rights is of deep interest and concern to me.

Before 2006, when an obscure judicial amendment -- comprising two simple definitions -- was signed into law, being found to be intersexed opened up all one's rights to challenge. But the promulgation of the Judicial Matters Amendment Act of 2005 changed this technically.

Theoretically, this Act guaranteed protection to the intersexed. Two statutory definitions turned the technical trick. The trouble was that the amendment entered the statute book by stealth: its existence and far-reaching implications have evaded attention until now in a context in which the invisibility of the intersexed, bar a handful of notable exceptions, testifies to an entrenched culture of shame, secrecy and stigmatisation.

The amendment was drafted because an American case made it clear to me that the Equality Clause did not protect the intersexed. An American federal court found that the firing of a woman because she was born intersexed did not breach a Pennsylvania equality statute similar to our Equality Clause.

The statute forbade discrimination on grounds of sex. The court argued that "sex", undefined in the statute, was to be understood in its ordinary dictionary sense. So it referred to the state of being "male and not female" or "female and not male". The upshot: it didn't protect the intersexed.

Our Equality Clause rules discrimination on certain listed grounds, including sex, unfair unless and until proved fair, but "sex" was not defined in statute. The dictionary definition of "sex" -- male, female and nothing else -- therefore governed its interpretation. "Human being" and "[natural] person" are also defined as having a sex in exclusively binary terms. The intersexed, somewhere in between, could thus be argued to be neither human beings nor natural persons.

The potential consequences were terrifying. Intersex was an "analogical ground" of discrimination rather than a listed ground in the Equality Clause. Unlike discrimination on a listed ground, discrimination on an analogical ground is deemed fair until proven unfair. The burden of proof rests on the victims.

In South African law, one needs locus standi, the right to address the court, to mount a legal challenge. Since the intersexed did not fit workaday definitions of "human beings" and "[natural] persons", arguably they lacked the locus standi to challenge this or any other type of discrimination. It followed that the intersexed, because they were intersexed, had no secure rights -- not even to dignity or to life itself.

The obvious remedy was to add "intersex" directly to the Equality Clause's listed grounds. Seeking this, I was introduced to the ANC's Fatima Chohan-Khota MP, a lawyer and a member (later chairperson) of the powerful justice and constitutional affairs portfolio committee.

It became clear that amendment of the Equality Clause wasn't feasible. However, Chohan-Khota alerted me to the Promotion of Equality and Prevention of Unfair Discrimination Act, governing judicial interpretation of the Equality Clause.

Going through it, I realised that the trick could be turned surprisingly simply. The Act begins with a schedule of definitions. Adding two definitions -- "'sex' includes intersex" and "'intersex' means a congenital sexual differentiation which is atypical, to whatever degree" -- would make intersex part of the meaning of "sex" in the Equality Clause.

I drafted the definitions and Chohan-Khota tabled them -- but the process dragged on. Some years later, a chance encounter with Jody Kollapen, the chairperson of the South African Human Rights Commission (SAHRC), led to a workshop on the regulation of non-consensual genital surgery on intersexed children and consideration of the intersexed in scrutinising draft legislation. Crucially, the SAHRC supported insertion of the definitions into the equality Act.

And so, in January 2006, the definitions became law in the Judicial Matters Amendment Act, 2005. Their technical implications are substantial. People like me had not had an unimpugnable right -- even to life -- before. Now, by statute, we are bona fide human beings in South African law, protected from discrimination on the grounds that we are intersexed.

Sally Gross is the founder of Intersex South Africa. See

Source: Mail & Guardian Online
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