Europe’s top human rights court has ruled in favor of Olympic champion Caster Semenya. It says courts in Switzerland should give her an additional chance to fight a requirement that female athletes with high natural testosterone take drugs to lower it.
The South African double Olympic 800m champion, 32, approached the European Court of Human Rights (ECHR) in February 2021 after losing appeals to the Court of Arbitration for Sport (CAS), sport’s highest court, and the Swiss Federal Tribunal (SFT) in a long-running legal battle.
On Tuesday, the ECHR ruled, by a slender majority of four votes to three, that Semenya’s original appeal against World Athletics regulations had not been properly heard. “The Court found in particular that the applicant had not been afforded sufficient institutional and procedural safeguards in Switzerland to have her complaints examined effectively," the ECHR said in a statement.
“The high stakes of the case for the applicant and the narrow margin of appreciation afforded to the respondent State should have led to a thorough institutional and procedural review. However, the applicant could not obtain such a review.”
Semenya may now be free to challenge, once more, the rules that have kept her career on hold. She has a medical condition known as hyperandrogenism. This is characterized by higher than usual levels of testosterone, a hormone that increases muscle mass, strength, and hemoglobin, which affects endurance.
Under the rules, athletes with differences in sexual development (DSDs) that result in high testosterone levels must lower them to those of “a healthy woman with ovaries”. They may take the contraceptive pill, have a monthly injection, or undergo surgery to remove the testes.
World Athletics said it stood by its rules, which remain for now.
“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 Court of Arbitration for Sport ruled in 2019 that the global governing body’s rules were necessary for fair female competition. At the time, Semenya said the rules were discriminatory, and contraceptive pills made her feel “constantly sick”. She lost her appeal to the SFT the following year to set aside the 2019 CAS ruling.
World Athletics has consistently said the regulations aim to create a level playing field for all athletes. Semenya won gold in the women’s 800 meters at the 2016 Olympic Games and is also a three-time world champion in the distance. The regulations, initially applied to races of 400 meters to a mile, were expanded in March to include all female track events. This prevented Semenya from relaunching her career by running longer distances.
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