Caster Semenya still faces a massive legal fight to return to major competition after World Athletics doubled down on its new rules for testosterone suppression following a court ruling in the double Olympic champion’s favour.
In the latest twist to a long-running legal battle, the European Court of Human Rights (ECHR) ruled that Semenya’s complaints “concerned substantiated and credible claims of discrimination” and that she was not afforded sufficient safeguards in Switzerland by the Court of Arbitration for Sport (CAS) and the Federal Court.
Semenya’s barrister, Schona Jolly KC from Cloisters, said that it was an “important personal win” for an athlete who had “never given up her fight to be allowed to compete and run free”. Jolly also said that a wider message has been sent to global sports governing bodies that they “must finally recognise that human rights law and norms apply to the athletes they regulate.”
World Athletics maintain they have been fully focused on human rights over the past decade in trying to protect fair competition for women and girls, and want the Swiss government to refer Tuesday’s ruling to the Grand Chamber of the ECHR for final adjudication.
They are also adamant there is no question of changing their recently updated rules, which require any DSD athlete to have lowered their testosterone levels.
Semenya, who won the 800m Olympic gold in 2012 and 2016, as well as the 2009, 2011 and 2017 World Championships, was legally identified as female at birth but has a condition which means that she naturally produces higher levels of testosterone.
World Athletics introduced rules in 2018 which restricted testosterone levels over the distances between 400m and the mile, meaning that Semenya would have required medication in order to compete. They further hardened these rules in March and athletes with DSD cannot now compete in any event unless they have lowered their testosterone levels to below 2.5 nmol/L for a period of six months. Transgender women were also banned from competing in women’s events unless they had undergone their transition before going through male puberty.
Semenya refused to lower her testosterone following the 2018 update to the rules, meaning she missed the delayed Tokyo Olympics in 2021, and instead launched legal challenges to the CAS and the Swiss Federal Court, which were both rejected.
She then took her case to the ECHR in 2021, arguing that the government of Switzerland had not protected her human rights.
On this point, by a 4-3 majority of judges, the court ruled on Tuesday morning that she “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]”.
This ruling does not directly relate to World Athletics or its actual DSD regulations and, while it may open the door to a future challenge at CAS or the Swiss Federal Court, the governing body continues to regard their rules as valid. It leaves little imminent prospect of Semenya, who is still aged only 32, returning to major competition.
“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,” said a World Athletics statement. “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 … will remain in place.”
Semenya has highlighted the potential health implications to taking testosterone-reducing medication and believes that she, and other athletes with DSD, should be able to compete without such interventions. She has reported previously being subjected to gender-testing by World Athletics and did try testosterone-reducing medication as a teenager but says that it made her sick, gain weight and have panic attacks. “I don’t know if I was ever going to have a heart attack,” she said. “It’s like stabbing yourself with a knife every day.”
Dr Seema Patel, an associate professor at Nottingham Law School, said that the EHRC ruling would influence future policies among sports governing bodies and encourage them “to balance human rights with sport eligibility”.
Dr Patel also said that, should the EHRC ruling stand, CAS could revise their examination of the case or it could revert to the Swiss Federal Tribunal to reopen proceedings.