IN a significant development, Europe’s top human rights court ruled in favour of South African Olympic runner Caster Semenya on Tuesday, stating that Swiss courts should provide her with a fresh opportunity to challenge the requirement for female athletes with high natural testosterone levels to take drugs in order to lower it. The ruling came after Semenya, a two-time Olympic 800m champion, approached the European Court of Human Rights (ECHR) in February 2021, following unsuccessful appeals to the Court of Arbitration for Sport (CAS) and the Swiss Federal Tribunal (SFT) in her ongoing legal battle.
The ECHR decision, reached with a narrow majority of four votes to three, concluded that Semenya’s initial appeal against World Athletics regulations had not received a proper hearing. ‘The Court found in particular that the applicant had not been afforded sufficient institutional and procedural safeguards in Switzerland to allow her to have her complaints examined effectively,’ stated the ECHR in an official statement. ‘The high stakes of the case for the applicant and the narrow margin of appreciation afforded to the respondent State should have led to a thorough Institutional and procedural review, but the applicant had not been able to obtain such a review.’
While this ruling potentially grants Semenya the freedom to once again challenge the rules that have put her career on hold, there are further steps to be taken. Following the ECHR judgment, there is a three-month period during which the ruling is not final, and any party involved can request that the case be referred to the Grand Chamber of the Court. If such a request is made, a panel of five judges will evaluate whether the case warrants further examination. In the event of referral, the Grand Chamber will hear the case and deliver the final judgment.
World Athletics, the governing body of track and field, expressed its continued support for the existing rules, asserting that they would remain in effect for now. The organisation also indicated its intention to encourage the Swiss Government to seek a review of the ECHR ruling. ‘We remain of the view that the DSD regulations are a necessary, reasonable, and proportionate means of protecting fair competition in the female category as the Court of Arbitration for Sport and Swiss Federal Tribunal both found, after a detailed and expert assessment of the evidence,’ stated World Athletics in an official statement. ‘We will liaise with the Swiss Government on the next steps and, given the strong dissenting views in the decision, we will be encouraging them to seek referral of the case to the ECHR Grand Chamber for a final and definitive decision.’
Caster Semenya, who has a medical condition known as hyperandrogenism resulting in elevated testosterone levels, which enhance muscle mass, strength, and endurance, has consistently argued that the regulations are discriminatory. Under the existing rules, female athletes with differences in sexual development (DSDs) and high testosterone levels must lower them to the level of ‘a healthy woman with ovaries’ in order to compete in women’s events. This can be achieved through methods such as taking contraceptive pills, receiving monthly injections, or undergoing testes removal surgery.
The Court of Arbitration for Sport previously ruled in 2019 that World Athletics’ regulations were necessary for fair competition among females. At the time, Semenya criticized the rules as discriminatory and claimed that contraceptive pills made her feel ‘constantly sick.’ Her subsequent appeal to the Swiss Federal Tribunal in 2020 to overturn the CAS ruling was also unsuccessful.
Caster Semenya, a gold medallist in the women’s 800 meters at the 2016 Olympics and a three-time world champion in the same distance, has been unable to resume her career in longer distances due to the expanded application of the testosterone regulations in March, which now encompass all female track events.
