Double Olympic champion runner Caster Semenya yesterday won an appeal against track and field’s testosterone rules when the European Court of Human Rights ruled she was discriminated against and there were “serious questions” about the rules’ validity.
However, World Athletics, which enforces the regulations, said that its rules would remain in place, meaning there would not be an immediate return to top-level competition for the South African runner.
Semenya’s case at the rights court was against the government of Switzerland and not World Athletics itself, although the decision was still a major moment in throwing doubt on the future of the rules.
Photo: AFP
Semenya was legally identified as female at birth and has identified as female her entire life, but regulations introduced by track and field’s governing body in 2019 forced her to artificially suppress her natural testosterone to be allowed to compete in women’s competitions.
World Athletics says she has one of a number of conditions known as differences in sex development (DSD), which results in a natural testosterone level in the typical male range.
Semenya had previously lost an appeal at sport’s highest court in 2019 and a second challenge against the rules at the Swiss Federal Supreme Court in 2020. That second rejection of her appeal was the reason the Swiss government was the respondent in the European Court of Human Rights case.
The European rights court ruled in Semenya’s favor by a 4-3 majority of judges on the complaint of discrimination, and said that she was denied an “effective remedy” against that discrimination through the two previous cases she lost at the Court of Arbitration for Sport (CAS) and the Swiss supreme court.
The court said that it “found in particular that the applicant had not been afforded sufficient institutional and procedural safeguards in Switzerland to allow her to have her complaints examined effectively.”
Yesterday’s ruling was in many ways a criticism of the 2019 decision by CAS. The sports court kept in place the rules that require Semenya and others with DSD to take birth control pills, have hormone-blocking injections or undergo surgery to be allowed to run at top competitions such as the Olympics and world championships.
At the time, Semenya said the rules were discriminatory, and contraceptive pills made her feel “constantly sick.”
The rules were initially enforced in certain events, but were expanded and made stricter by World Athletics this year. Athletes such as Semenya were forced to lower their testosterone further if they wanted to run in any race.
The decision by the Switzerland-based CAS that rejected Semenya’s first appeal had not properly considered important factors such as the side effects of the hormone treatment, the difficulties for athletes to remain in compliance of the rules, and the lack of evidence that their high natural testosterone actually gave them an advantage, the European rights court said.
An unfair advantage is the core reason World Athletics introduced the rules in the first place.
The European rights court also found Semenya’s second legal appeal against the rules at the Swiss supreme court should have led to “a thorough institutional and procedural review” of the rules, but that did not happen when that court ruled against Semenya.
It ordered the government of Switzerland to pay Semenya 60,000 euros (US$66,008) for costs and expenses.
The decision could force CAS and ultimately World Athletics to re-examine the regulations.
Additional reporting by AFP and Reuters
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