The human rights of two-time Olympic champion in the 800 meters Caster Semenya have been violated by courts in Switzerland, the European Court of Human Rights (ECHR) ruled on Tuesday. The 32-year-old South African appealed to the ECtHR in Strasbourg after the Swiss Supreme Court rejected her appeal against World Athletics rules that she must take drugs to lower her testosterone levels if she wants to continue competing.
Semenya, who is said to have “differences in sexual development (DSD)” but has always been legally identified as female, has refused to use the drugs since the international federation introduced the rules in 2018.
As a result, she is barred from competing in her favorite 800m distance. In her long-running legal battle, Semenya lost an appeal to the Court of Arbitration for Sport, and three years ago the Supreme Court of Switzerland upheld the decision of the Supreme Court of Sport.
Semenya then took her case against Switzerland to the French-based ECtHR. The seven ECtHR judges ruled by a majority of four to three that Semenya’s rights under Article 14 of the European Convention on Human Rights, which relates to discrimination, had been violated by Switzerland.
The ECtHR also ruled that the Swiss state had violated Article 13 by not providing Semenya with an effective remedy against discrimination. In its ruling on Tuesday, the court said: “In particular, the court found that the applicant had not been provided with sufficient institutional and procedural safeguards in Switzerland for her complaints to be effectively investigated, particularly because her complaints contained well-founded and credible claims of discrimination resulting from her elevated testosterone levels caused by differences in sex development.”
The ruling in Semenya’s favor is largely symbolic, as it doesn’t call into question the World Athletics ruling and doesn’t pave the way for her to return to competition without taking the medication.
Semenya won Olympic gold at the 2012 London Games and 2016 Rio Games, and world titles in 2009, 2011 and 2017.
Rules ‘necessary and reasonable’
World Athletics described the ECtHR chamber as “deeply divided” and said DSD rules would remain in effect. The federation said it will now contact the Swiss government about next steps and, “given the sharply diverging views in the decision, we will encourage them to request referral of the case to the Grand Chamber of the ECtHR for a final and final decision”. .
World Athletics added: “We continue to believe that the DSD rules are a necessary, reasonable and proportionate means of protecting fair competition in the women’s category, as the Court of Arbitration for Sport and the Swiss Federal Tribunal have both found, after a detailed and expert assessment of the evidence.”
Athletics South Africa said the ruling “confirmed” its view that the DSD regulations were “ill-considered, lacked proper science and were highly discriminatory”.
World Athletics introduced the DSD regulations to create a level playing field in women’s events ranging from 400 meters to one mile. Semenya was forced to move up to the 5,000 meters, a distance she failed to reach the final at the world championships in Eugene last year.
In March this year, the federation changed the rules. DSD athletes must now reduce their blood testosterone levels to below 2.5 nanomoles per litre, down from the previous level of five, and remain below that for two years.
World Athletics has also removed the principle of restricted events for DSD athletes, meaning that the regulations now cover all distances instead of previously controlled distances.
Topics mentioned in this article
