Caster Semenya, the renowned South African Olympic champion runner, has achieved victory in her appeal on Tuesday filed with the European Court of Human Rights to challenge the “discriminatory” testosterone limits imposed on female athletes.
Semenya, who is hyper androgenous and naturally possesses high levels of testosterone, has been contesting the rules implemented by World Athletics in 2019.
Further, these regulations govern hormone levels in female athletes. In its ruling, the ECHR determined that there had been a violation of the prohibition of discrimination in conjunction with the right to respect for private life, as well as a violation of the right to an effective remedy.
Despite winning gold medals in the 800m event at both the 2012 and 2016 Olympics, the new regulations required Semenya to undergo testosterone-reducing treatment in order to compete internationally in distances ranging from 400m to one mile.
However, she chose not to pursue this option. As a consequence of the rule changes, she was unable to defend her 800m title at the Tokyo Olympics in 2021.
Previously, Semenya appealed to the Court of Arbitration for Sport in April 2019, but her plea was unsuccessful. In September 2020, she also lost an appeal at Switzerland’s Federal Supreme Court. Nevertheless, she remained determined to fight for the human rights of female athletes.
Semenya lodged an appeal with the ECHR in February 2021, contending that the Swiss Federal Supreme Court failed to fulfill its obligations in upholding her human rights during the dismissal of her appeal.
In its ruling, the ECHR stated, “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, especially since her complaints concerned substantiated and credible claims of discrimination as a result of her increased testosterone level caused by differences of sex development (DSD).”
The ECHR further emphasized that given the significant personal stakes involved for Semenya, such as participating in international athletic competitions and practicing her profession, Switzerland exceeded the narrow margin of appreciation afforded to it in cases involving discrimination based on sex and sexual characteristics. The court concluded that the applicant had not been able to obtain a thorough institutional and procedural review, and the available domestic remedies were ineffective in the circumstances of the case.
In response to the ECHR ruling, World Athletics acknowledged the judgment of the divided Chamber but maintained its stance that the regulations regarding differences in sex development (DSD) are necessary, reasonable, and proportionate to ensure fair competition in the female category. World Athletics expressed its intention to liaise with the Swiss Government for further action, including seeking a referral of the case to the ECHR Grand Chamber for a final decision.
Meanwhile, the existing DSD regulations, approved by the World Athletics Council in March 2023, will remain in effect.
It is worth noting that DSD refers to variations in reproductive anatomy, chromosome patterns, or other traits that may not conform to traditional binary definitions of female or male. The prevalence of individuals with DSD traits is challenging to estimate, as many live their entire lives without being aware of their condition. Scientists estimate that as many as one out of every 50 people is born with DSD traits
