For many years, South African track runner, Caster Semenya, has been in a legal battle with World Athletics in regard to her participation among women related competitions. This goes back to her body containing testostreone hormones. World Athletics believed that she would have an unfair advantage. She has consistently fought against that decision.
The Grand Chamber of the European Court (ECHR) on Thursday upheld a 2023 ruling that double 800m Olympic champion, Caster Semenya’s appeal to a Swiss Federal Tribunal against regulations that barred her from competing hadn't been properly heard. Semenya is appealing against World Athletics regulations that female athletes with differences in sexual development (DSDs) must medically reduce their testosterone levels.
The verdict, which doesn't give an opinion on the fairness of the regulations, opens the door for Semenya to continue her challenge to the regulations. "It's a battle for human rights now," the South African recently told reporters. "It's not about competing. It's about putting athletes' rights first. It's about the protection of athletes."
The Grand Chamber declared inadmissible Semenya's complaint of violations to her right to privacy and effective remedy or that she considers herself a victim of discrimination.
Semenya challenged the rules but lost at the Court of Arbitration for Sport in Switzerland in 2019 and again at the Swiss Supreme Court in 2020. The ECHR ruled in July 2023, by a majority of four votes to three, that Semenya's original appeal to a Swiss Federal Tribunal against the regulations hadn't been properly heard. The Swiss courts, encouraged by World Athletics, appealed that verdict to the ECHR Grand Chamber.
The case could now return to the Swiss courts or possibly the Court of Arbitration for Sport. World Athletics has previously denied there is any attempt to discriminate in their regulations. "World Athletics has only ever been interested in protecting the female category. If we don't, then women and young girls will not choose sport. That is, and has always been, the federation's sole motivation," the sports body said in a previous statement.
"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."
She had barely touched the tape to claim gold when controversy erupted over whether she should've been allowed to compete. Some rivals questioned whether she was a woman. Officials reacted by forcing Semenya to have a sex test and it was not until the following year that the woman born in a northern village could run again.
Recalling the sex test to a London audience, Semenya said, "being told you are not woman enough can be disturbing." Now 34, Semenya was born with differences of sexual development (DSD) and some opponents believed her biological make-up gave her an unfair advantage.
Later, when Semenya refused to take drugs to suppress testosterone, a hormone that increases muscle mass, strength and endurance-enhancing haemoglobin, she was banned by World Athletics.
She collected 800m gold medals at the 2012 and 2016 Olympic Games in London and Rio de Janeiro, respectively – the first after Russian winner, Mariya Savinova, was belatedly disqualified over doping. Semenya also struck gold over her favourite distance at world championships in Berlin, South Korean city, Daegu and London.
Instead of basking in the glory of becoming a middle-distance track queen, she became embroiled in a string of legal battles just to compete. Previously, when Semenya took testosterone-reducing medication, the athlete told South African media she suffered "hell."
"When you are desperate (to run), you will do anything to get what you want. The medication was not designed for my body because I am different. I am a woman who is different, I do not have a uterus, I do not have fallopian tubes. I was never happy (taking the medication), it irritated me, I was not myself."
As the years passed, relentless Semenya exchanged her 'golden girl' status among South Africans and became a rebel with a cause. Her frustration heightened when an initial World Athletics ban covering middle-distance races extended to all track events.
She labelled the move a "gross violation of human rights. What is at stake here is far more than the right to participate in a sport. Women's bodies, their wellbeing, their ability to earn a livelihood, their very identity, their sense of safety and belonging in the world are being questioned."
While Semenya railed against World Athletics, the organisation refused to budge and Semenya missed the 2024 Paris Olympics. "DSD regulations are a necessary, reasonable and proportionate means of protecting fair competition in the female category," said the international body.
Taking the legal route to try and overturn the ban, Semenya lost cases at the Court of Arbitration for Sport (CAS) and the Swiss Federal Tribunal (SFT). The ECHR took a different view, though, by a 4-3 majority. They said the Semenya appeal hadn't been properly heard.
"The applicant had not been afforded sufficient institutional and procedural safeguards in Switzerland to allow her to have her complaints examined effectively," the ECHR said. SFT, supported by World Athletics, appealed the decision, leading to a two-year wait before the 17-judge ECHR Grand Chamber gave its ruling and found again in her favour.
"We need to respect athletes, we need to put their rights first... It's just a reminder to the leaders to say priorities lie in the protection of athletes," she said after the appeal ruling. The government and the public have backed Semenya in her crusade against an "injustice."
"Our entire history of South Africa has been a struggle for human rights. These (World Athletics) rules have had a negative effect on our golden girl," said then-sports minister, Tokozile Xasa. As Semenya suffered setbacks, she could rely on the support of her parents, three sisters and one brother. "The relationship I have with my family is special," she said.
While the decision was widely reported as a win for the two-time Olympic champion, the majority of judges declined to rule on Semenya’s primary human rights complaints.
These included her claims that the regulations violated her right to privacy, the right to an effective remedy and the prohibition of discrimination. The court argued that it lacked jurisdiction to rule on these as Semenya is not a Swiss citizen.
Although the ruling was welcomed by Caster Semenya, her legal team and the wider media as a victory, several human rights organisations expressed disappointment at its limitations.
Groups including ILGA-Europe, the International Commission of Jurists (ICJ) and Organisation Intersex International Europe (OII Europe) — all of whom were granted permission to intervene in the matter — welcomed the finding of a fair trial violation. However, they lamented the court’s decision not to examine the significant human rights issues at hand.
In a joint statement, they said: "We regret that the Court has failed in its obligation to protect fundamental rights by choosing not to examine the merits in question of Semenya’s claims of violations of her rights…"
The organisations pointed to the dissenting opinion of Judges Bošnjak, Zünd, Šimáčková and Derenčinović, who argued that it is “inconceivable that domestic courts, ruling within the territory of Europe, should disregard international fundamental rights obligations in the area of protection of bodily integrity, equality and human dignity."
ICJ Africa Director, Kaajal Ramjathan-Keogh, stated: "The ICJ is deeply disappointed by the outcome of this case. We urged the Grand Chamber to uphold the findings in the earlier judgment, establishing sex characteristics as a prohibited ground under Article 14 of the [European Convention on Human Rights]. Sadly, the Grand Chamber has elected not to do so."
OII Europe’s sports consultant, Urs Vanessa Sager, echoed the criticism, saying the court had failed to recognise that Semenya was “excluded from her profession in application of blatantly exclusionary, invasive and discriminatory regulations, which are not backed by any solid evidence that could justify this difference in treatment."
South Africa’s Deputy Minister for Women, Youth and Persons with Disabilities, Mmapaseka Steve Letsike, also expressed mixed feelings about the court’s decision.
"While we celebrate this achievement for Semenya and the broader athletic community," she said in a statement, "we express our concern that the ruling did not establish a precedent for regulating testosterone levels in sports, which is contrary to Semenya’s objective of achieving a competitive advantage."
Minister of Sport, Arts and Culture, Gayton McKenzie, has expressed his support for the recent ruling by the ECHR involving Caster Semenya.
The Department of Sport, Arts and Culture (DSAC) believes that the decision marks a critical moment in the long-standing battle for the dignity and human rights of female athletes with differences of sexual development.
"Caster, we as South Africa have always stood by you, and we will continue to do so as the fight for your bodily rights continues," the Minister said. From the outset, the department said the South African government stood firmly behind Semenya.
"Through the current DSAC and the former Department of Sport and Recreation, a coordinated and multi-sectoral response was established that included expert panels in the legal, medical, and advocacy spheres."
"The department also launched the #NaturallySuperior campaign to mobilise public awareness and international solidarity, highlighting that Semenya’s natural talents should be celebrated rather than policed."
DSAC committed financially in support of Athletics South Africa’s legal efforts with Semenya and further engaged with the Department of International Relations and Cooperation to elevate the matter internationally, leading to a strong resolution on the matter at the United Nations Human Rights Council.
“This resolution condemned the current regulations against her as a violation of bodily integrity, equality, and freedom from cruel or degrading treatment." While the recent ruling hasn't overturned these discriminatory regulations, it's an important legal and moral victory, which opens new legal avenues and affirms the right of athletes such as Semenya to be heard on just and equal terms.
DSAC said it will continue working with Athletics South Africa, legal experts, and other African governments and federations to pursue justice through all available channels, including within the structures of World Athletics.
"Caster Semenya has become the face of defiance against injustice in global sport, and this court victory is a victory for every African child. South Africa is proud of her, and we will walk every step of this journey with you, Caster, until justice is not only seen, but felt," said McKenzie.
"We can’t wait to see you running again," he added. Meanwhile, the Commission for Gender Equality (CGE) said they have noted the judgment handed down by the ECHR. “The Commission is still studying the judgment. A formal statement on our position will be released in due course," the statement read.
It's not yet clear whether Caster Semenya will return to the Swiss courts, armed with the ECHR’s ruling that she was denied a fair trial.
World Athletics’ 2018 policy requires athletes with differences of sexual development (DSD), like Semenya, to artificially suppress their natural testosterone levels to compete in selected events. Her refusal to comply led to her exclusion from international competitions and the end of her running career.
International human rights bodies have condemned the regulations as discriminatory and harmful. They argue that the rules violate the human rights of affected female athletes and must be re-evaluated.
I fully back the ruling made. I believe people should be accepted based on their sexual genitalia. To me, any other judgements made is just plain prejudicial and an act of discrimination. There's no telling how one within the womb will develop. Everyone should be treated equally.