South African two-time 800-meter Olympic gold medalist Caster Semenya won her appeal in the European Court of Human Rights Tuesday in a challenge to testosterone limits that she has fought against World Athletics, the world governing body for track and field, since 2019.
On a 4-3 decision by a panel of judges, it was decided that the Swiss Federal Supreme Court violated Semenya’s rights under three articles of the European Convention on Human Rights concerning remediation, privacy and discrimination in her challenge to World Athletics.
“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).
It followed, particularly with regard to the high personal stakes involved for the applicant — namely, participating in athletics competitions at international level, and therefore practising her profession — that Switzerland had overstepped the narrow margin of appreciation afforded to it in the present case, which concerned discrimination on grounds of sex and sexual characteristics requiring “very weighty reasons” by way of justification.
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. The Court also found that the domestic remedies available to the applicant could not be considered effective in the circumstances of the present case.”
The ruling opens up the possibility of further challenges to and possible repeal of World Athletics’ rules regarding what they term athletes with differences in sexual development. Semenya’s body produces naturally high levels of testosterone and such has been the determining factor in a regulation passed by the governing body in 2018 which placed testosterone limits on female athletes in races between 400 meters and a mile.
On March 31, 2023, that rule was extended to include all events, and said such athletes must maintain a testosterone level of 2.5 nanomoles per liter for at least six months prior competition. The rules on DSD were announced at the same time that a total ban of transgender women was put in place.
According to a statement released by World Athletics, the current DSD rules will stay in place in spite of the decision. Their stance is that the ruling was against a different entity and that the regulations are necessary to protect women’s sports.
“The current DSD regulations, approved by the World Athletics Council in March 2023, will remain in place,” World Athletics said. “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.”
World Athletics also stated they 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.”
The ruling may not immediate strike down the regulation but it does opens up options, such as a new appeal in the Court of Arbitration for Sport, for Semenya and other athletes such as Namibian sprinter Christine Mboma, The silver medalist at 200 meters at the Tokyo Olympics in 2021 is out of competition until September due to the revised regulations imposed in March.
Supporters of Semenya rejoiced at the possibilities raised and messages sent by the decision, with many noting all of penalties due to the World Athletics regulations concerning DSD have fallen on athletes from South Asia and sub-Saharan Africa.
“This case has got to trigger a change for World Athletics without a doubt,” Nthabiseng Sepanya-Mogale, chairperson of South Africa’s Commission for Gender Equality stated to eNCA television Tuesday. “But secondly, countries have to start standing up for their athletes because some of the regulations that have been put in place by certain bodies are actually in violation of international instruments that countries have ratified.”
University of Ontario sports governance professor Bruce Kidd, who was part of the team that initiated the successful appeal in the CAS for Indian sprinter Dutee Chand against similar regulations in 2015, called the Semenya decision “a victory for human rights.”
“There’s a long history of the male leaders and rulers of sport policing women because of a fear that they’re getting too fast and too strong,” he said to The Canadian Press Tuesday. “This effort by World Athletics to police these women is just another expression of the long-standing fear. It’s a terrible double standard.”