Earlier this month, the European Court of Human Rights (ECHR) delivered a landmark judgment concerning South African runner Caster Semenya.

Semenya has been fighting a legal battle in relation to her higher-than-normal levels of natural testosterone whereby the International Association of Athletics Federations (IAAF), since re-named World Athletics, was requesting Semenya to take hormone medication in order to decrease her natural testosterone level in order to be able to take part in international competitions in the female category.

Semenya’s nightmare journey started off back in 2009, wherein following her victory in the 800m race at the World Championship in Berlin, the IAAF informed Semenya that she would have to decrease her testosterone level beyond a certain imposed limit should she wish to participate in future international events.

Whilst initially complying with the regulations by undergoing the required treatment to reduce her testosterone levels, Semenya stopped the treatment following the landmark ruling delivered by the Court of Arbitration for Sport (CAS) in the Dutee Chand case wherein the CAS temporarily suspended the relevant regulations of the IAAF.

Following this ruling, in 2018 the IAAF rolled out a new set of regulations entitled “Eligibility Regulations for the Female Classification (Athletes with Differences of Sex Development)”, commonly referred to as the DSD Regulations.

Semenya refused to comply with the DSD regulations, claiming that in doing so, the side effects that she would have suffered as a result of the medication that she would have to take in order to lower her testosterone levels, were poorly understood and the rules were discriminatory in nature.

Subsequently, in June 2018, Semenya challenged the validity of the DSD regulations by instituting proceedings at the CAS against the IAAF.

During the course of proceedings before the CAS, the IAAF amended the DSD Regulations whereby athletes with XX chromosomes having an increased level of testosterone were no longer subject to these regulations.

Although the CAS found the rules to be discriminatory in nature, at the same time the CAS was still of the opinion that such rules were a necessary, reasonable, and proportionate means of achieving the aims of the IAAF, namely to ensure fair competition and thus ruled against Semenya.

Semenya lodged an appeal with the Swiss Federal Court arguing that she had been discriminated against on grounds of sex and alleging that her human dignity and personality rights had been breached.

The Federal Court ruled in a similar manner to the CAS; that the relevant regulations were an appropriate, necessary, and proportionate means of achieving the legitimate aims of fairness in sport.

In February 2021, Semenya lodged a complaint with the ECHR against Switzerland, challenging the compatibility with various provisions of the Convention of certain regulations that had been issued by the IAAF and subsequently endorsed by the CAS and the Swiss Federal Court.

The ECHR noted that Switzerland had played no part in the adoption of the DSD Regulations and therefore decided to focus its examination on the issue of whether the review carried out by the CAS and the Federal Court had, in the present case, satisfied the requirements of the Convention.

With four votes in favour and three against, the ECHR ruled that there had been a violation of Article 14 (prohibition of discrimination) taken together with Article 8 (right to respect for private life) of the European Convention on Human Rights as well as a violation of Article 13 (right to an effective remedy) in relation to Article 14 taken together with Article 8 of the Convention.

The Court found in particular that Semenya 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 DSD.

As a result, in the opinion of the ECHR, Switzerland had overstepped the narrow margin of appreciation afforded to it in the present case, which concerned discrimination on grounds of sex and sexual characteristics requiring “very weighty reasons” by way of justification.

Responding to the landmark ruling, World Athletics continued to claim that the regulations were “a necessary, reasonable, and proportionate means of protecting fair competition in the female category”.

World Athletics also encouraged the State of Switzerland to refer the ECHR decision to the Grand Chamber for a final and definitive decision. Meanwhile, the regulations shall remain in place until such a decision becomes final and binding.

Dr Robert Dingli is a Senior Associate at Dingli & Dingli Law Firm and specializes in sports law.

This article was published in the latest edition of the Sunday Times of Malta. Link : https://sport.timesofmalta.com/2023/07/23/semenya-vs-switzerland-victory-for-semenya/