Caster Semenya Wins Human Rights Case Over Testosterone Rules

Caster Semenya, the South African Olympic champion runner, has won a legal victory in her long-running battle against rules that force her to medically reduce her natural hormone levels.

The European Court of Human Rights (ECHR) ruled on Tuesday that she was discriminated against by the Swiss legal system, which failed to protect her from the regulations imposed by World Athletics, the sport’s governing body.

Background of the case

Semenya, who was born with differences in sex development (DSD), has a condition that causes her body to produce higher levels of testosterone than most women. She has dominated the women’s 800m event, winning gold medals at the 2012 and 2016 Olympics and three world titles.

However, in 2018, World Athletics introduced a new policy for DSD athletes, requiring them to lower their testosterone levels to less than 5 nanomoles per litre (nmol/L) in order to compete in events ranging from 400m to a mile. The policy was based on the assumption that high testosterone gives DSD athletes an unfair advantage over other female competitors.

Semenya challenged the policy at the Court of Arbitration for Sport (CAS), arguing that it was discriminatory, unnecessary and harmful to her health and dignity.

She also said that taking medication to lower her testosterone made her feel “constantly sick”. However, in 2019, CAS upheld the policy, saying it was a “necessary, reasonable and proportionate” way of ensuring fair competition in women’s athletics.

Semenya then appealed to the Swiss Federal Tribunal, which also rejected her case in 2020, saying that CAS had the right to make its own assessment of the scientific evidence and the balance between human rights and sporting fairness. Semenya then took her case to the ECHR, claiming that Switzerland had violated her rights under the European Convention on Human Rights.

The ECHR ruling

The ECHR ruled by a majority of four to three that Semenya’s rights had been violated by the Swiss legal system.

The court said that Semenya had not been given “sufficient institutional and procedural safeguards” to have her complaints examined effectively.

The court also said that Semenya’s allegations of discrimination were “substantiated and credible”, but that it could not determine whether the World Athletics policy was justified or not.

The court said that Semenya’s case involved “high stakes” for her and that Switzerland should have conducted a “thorough institutional and procedural review” of the CAS decision.

However, Semenya had not been able to obtain such a review, and therefore the ECHR was “unable to assess whether the DSD regulations, as applied in the applicant’s case, could be considered a measure that was objective and proportionate to the aim pursued of protecting fair competition for female athletes”.

The court found that Switzerland had violated Article 14 of the European Convention on Human Rights, which prohibits discrimination, and Article 13, which guarantees an effective remedy for human rights violations.

The Swiss government was also ordered to pay Semenya 60,000 euros ($66,000) for costs and expenses.

World Athletics response

“We remain of the view that the … 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,” World Athletics said.

World Athletics also said it would be “encouraging” the government of Switzerland to appeal the ruling. Switzerland was the respondent in the case because Semenya was challenging her last legal loss in the Swiss supreme court. Switzerland’s government has three months to appeal.

The implications of the ruling

The ECHR ruling is a significant win for Semenya, who has been unable to compete in her preferred events since 2018. It also opens up the possibility of a new legal challenge against the World Athletics policy, either by Semenya or by other DSD athletes who are affected by it.

However, the ruling does not automatically invalidate or suspend the policy, which remains in place for now. World Athletics said in a statement that it stood by its policy and that it would encourage Switzerland to refer the ECHR decision to the Grand Chamber for a final judgment. The Grand Chamber is a panel of 17 judges that can review cases of exceptional importance or complexity.

Semenya’s lawyer, Greg Nott, said that he was “delighted” by the ECHR ruling and that he hoped it would lead to a “fair resolution” for his client. He also said that he hoped World Athletics would reconsider its policy and engage in dialogue with Semenya and other DSD athletes.

Semenya herself has not commented on the ruling yet, but she has previously expressed her determination to fight for her rights and her career. She has also said that she will not comply with the testosterone rules and that she will not switch to longer distances or different sports. She has also expressed interest in competing at the 2024 Olympics in Paris.

Semenya is widely regarded as one of the greatest middle-distance runners of all time and an inspiration for many people who face discrimination or stigma because of their identity or appearance. Her case has raised important questions about human rights, gender diversity, scientific evidence and sporting fairness in athletics and beyond.

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Edited by Jesus Chan

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