South African athlete Caster Semenya, prevented from taking part in certain races because she refuses treatment to lower her testosterone levels, won a legal battle against Switzerland on Tuesday before the European Court of Human Rights , who considers the 32-year-old athlete a victim of discrimination. Swiss justice had confirmed in 2020 a decision of the Court of Arbitration for Sport (CAS) validating a regulation of the International Athletics Federation (World Athletics, ex-IAAF).
This forces the hyperandrogenic athlete, double Olympic champion in the 800m, to take hormone treatment to lower her testosterone levels if she wants to align with her favorite distance. This judgment of the ECHR does not however invalidate the regulations of World Athletics and does not directly open the way for Semenya to participate in the 800m without treatment.
“Switzerland has overstepped the reduced margin of appreciation it enjoyed in the present case, which concerned discrimination based on sex and sexual characteristics, which can only be justified by very strong considerations”, estimated the court based in Strasbourg. “The significant stakes of the case for the applicant and the reduced margin of appreciation of the respondent State should have resulted in an in-depth institutional and procedural control, which the applicant did not benefit from in this case”, she continued.
In a decision rendered with a narrow majority of four judges against three, the ECHR thus considers that Switzerland has violated Article 14 of the European Convention for the Protection of Human Rights, relating to the prohibition of discrimination, combined with Article 8, which protects the right to privacy. Furthermore, there has also been a violation of Article 13 of the convention, relating to the right to an effective remedy.
“As the applicant did not claim any sum for pecuniary or non-pecuniary damage, the Court makes no award in this respect. However, the Court said (4 votes to 3) that Switzerland must pay the applicant 60,000 euros for costs and expenses”, concludes the ECHR. The athlete has a natural excess of male sex hormones. For more than ten years, it has been wrestling with the International Athletics Federation (World Athletics, ex-IAAF).
With supporting expertise, the latter defined in April 2018 a maximum testosterone threshold (5 nanomoles per liter of blood) to compete with women over distances ranging from 400 m to a mile (1609 m), and therefore including the 800 m where the South African excels.
