South African athlete Caster Semenya, who has been prevented from competing in certain races because she refused treatment to lower her testosterone levels, won a case against Switzerland on Tuesday at the European Court of Human Rights (CEDH), which is examining the 32-year-old Athletes are victims of discrimination.
In 2020, the Swiss judiciary had confirmed a decision by the Court of Justice for Sport (CAS), which confirmed a regulation by the International Athletics Federation (World Athletics, ex-IAAF).
This forces the hyperandrogenic athlete, a two-time Olympic gold medalist in the 800m, to take hormone treatments to lower her testosterone levels when she wants to reach her favorite distance.
However, this ruling by the ECtHR does not invalidate the World Athletics regulations and does not directly open the way for Semenya to compete in the 800m without treatment. “Current regulations on DSDs [différences du développement sexuel, NDLR]approved by the Council of the International Federation in March 2023 remains in place,” the agency said.
“In the present case, Switzerland exceeded the limited discretion that concerned discrimination based on sex and sexual characteristics, which can only be justified by very strong considerations,” the Strasbourg-based court found.
“The significant importance of the case to the claimant and the limited discretion of the respondent state should have resulted in deep institutional and procedural controls that the claimant did not benefit from in this case,” she continued.
AFP
short majority
In a judgment handed down by a narrow majority of four judges against three, the ECtHR therefore concludes that Switzerland has violated Article 14 of the Convention for the Protection of Human Rights and Fundamental Freedoms with regard to the prohibition of discrimination 8 , which protects the right to respect for private life protects. There is also a violation of Article 13 of the Convention, which concerns the right to an effective remedy.
“Since the complainant has not claimed any amount for material or non-material damage, the court makes no award in this regard. However, the court ruled (4 votes to 3) that Switzerland must pay the applicant 60,000 euros for costs and expenses,” the ECtHR concludes.
Caster Semenya has a natural excess of male sex hormones. He has wrestled with the International Athletics Federation for more than ten years.
“World Athletics takes note of the decision of a very divided chamber of the ECtHR,” the federation responded in a press release. “We continue to believe that the DSD rules are a necessary, appropriate and proportionate means of protecting fair competition in the women’s category.”
AFP
Appeal to the Grand Chamber?
Caster Semenya, unable to run his favorite distance of 800m, had tried to switch to longer distances like the 5000m, which were initially unaffected by the DSD regulations. But World Athletics in March further tightened its rules for intersex athletes like Caster Semenya, who now must keep their testosterone levels below 2.5 nanomoles per liter for 24 months to compete in the women’s category, regardless of the distance.
“We will coordinate with the Swiss government to consider the follow-up action to be taken and, given the diverging views in this decision, we will encourage the Swiss authorities to approach the ‘Grand Chamber’ of the ECtHR, their supreme formation, which acts as a court of appeal and makes final decisions, continues the International Federation.
“Victory, the ECtHR rules in Caster’s favour,” Indian researcher Payoshni Mitra, one of the directors of the Center for Sport and Human Rights and a longtime supporter of Caster, responded on Twitter. Semiya. “It’s huge. The sporting world needs to pay attention to this landmark decision, as do the countries of Western Europe, where most sporting institutions are based.