Caster Semenya was discriminated against by rules which forced her to lower her testosterone levels in order to continue competing, according to a judgement from the European Court of Human Rights.
The 32-year-old South African, a two-time 800 metres Olympic champion, was legally identified as female at birth but has a condition which means her body naturally produces higher levels of testosterone than women without the condition.
She has been unable to compete at her favoured distance since 2019, following the introduction of limits on testosterone levels for female athletes which would have forced her to use medication.
Previous legal challenges to the Court of Arbitration for Sport and the Swiss Federal Supreme Court were rejected, but the ECHR found her human rights had been violated.
World Athletics said in response to the judgement that it believes its rules on athletes with differences of sexual development (DSD) are “necessary, reasonable and proportionate” to protect fair competition in the female category. The international federation said it would encourage the Swiss state – which is the respondent in the ECHR case rather than World Athletics – to refer the matter to the Grand Chamber of the ECHR for a final judgement.
A release issued by the court on Tuesday morning 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).”
Tuesday’s ECHR decision was a majority decision – with four of the seven chamber members finding Semenya’s rights had been violated.
A legal summary of the case said Article 14 of the European Convention on Human Rights, which relates to discrimination, had been violated, along with Article 13 which related to the absence of effective remedies to tackle that discrimination.
World Athletics’ statement read: “World Athletics notes the judgment of the deeply divided Chamber of the European Court of Human Rights (ECHR).
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.— World Athletics statement
“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.
“The case was filed against the state of Switzerland, rather than World Athletics.
“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.
“In the meantime, the current DSD regulations, approved by the World Athletics Council in March 2023, will remain in place.”
Semenya’s legal team have been contacted for comment.
