A new episode in a soap opera that lasts in time. 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. “The current regulations on DSDs (differences in sexual development, editor’s note), approved by the Council of the International Federation in March 2023, remain in place”, indeed specified the body. “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.
Caster Semenya has a natural excess of male sex hormones. For more than ten years, it has been wrestling with the International Athletics Federation. “World Athletics notes the decision of a very divided chamber of the ECHR”, reacted the federation in a press release. “Our view remains that the DSD regulations are a necessary, reasonable and proportionate means of protecting fair competition in the women’s category.”
Caster Semenya, failing to be able to run his favorite distance of 800m, had tried to convert to longer distances such as the 5000m, initially not affected by the DSD regulations. But World Athletics further tightened its rules in March for intersex athletes like Caster Semenya, who must now keep their testosterone levels below 2.5 nanomoles per liter for 24 months to compete in the women’s category, regardless of distance. .
“We are going to coordinate with the Swiss government to study the follow-up to be given, and given the dissenting opinions in this decision, we are going to encourage the Swiss authorities to turn to the Grand Chamber” of the ECHR, its supreme formation which officiates as a court of appeal and makes final decisions, continues the International Federation.
“Victory, the ECHR decides in favor of Caster”, for its part reacted on Twitter the Indian researcher Payoshni Mitra, one of the officials of the Center for Sport and Human Rights, long-time supporter of Caster Semenya. “It is enormous. The world of sport must pay attention to this landmark decision, as well as the countries of Western Europe where most sports institutions are based.
