Historic Victory for Human Rights.

South African runner Caster Semenya won a historic victory at the European Court of Human Rights which ruled that athletics rules that oblige her to reduce her natural testosterone levels to compete in major competitions are discriminatory. However, the decision did not repeal the rules and World Athletics stated that they will remain in effect.

Semenya has a condition called difference in sex development (DSD), which causes naturally high levels of testosterone. World Athletics Testosterone Rules require athletes with DSD to take medication to lower their testosterone levels, otherwise they will not be able to compete in women's events.

The Victory of Caster Semenya

South African runner and Olympic champion Caster Semenya won a potentially historic legal ruling for sport when the European Court of Human Rights ruled that she was discriminated against by athletics rules which forced her to reduce her natural hormone levels in order to compete in important competitions.

However, the two-time Olympic champion's success following her two failed appeals to the highest sports court in 2019 and the Swiss supreme court in 2020 came with an important caveat. The decision did not repeal the rules and the world athletics body stated shortly after the announcement that the controversial testosterone regulations “will remain in effect".

Although 32-year-old athlete Semenya is fighting to be allowed to run unrestricted again, this could take years if it happens. It is unlikely that she will be able to race at the Paris Olympics or the upcoming world championships, where she has won three titles, will probably not be an option either.

The South African athlete's legal challenge has been going on for five years and it could take just as long to reverse the cases in different courts.

The decision, while significant and a victory for Semenya, only paved the way for the Swiss high court to reconsider its decision. This could result in the case being referred back to the Court of Arbitration for Sport in Lausanne. Only then can the rules imposed by world athletics governing body, World Athletics, possibly be removed.

Victory Sets a Precedent

However, Semenya's lawyers said the victory established an important principle.

"Caster never gave up fighting to be allowed to compete and run freely."

"This important personal victory for her is also a broader victory for elite athletes around the world."

"This means that sports governing bodies around the world must finally recognize that human rights laws and standards apply to the athletes they regulate."

In a 4-to-3 decision, handed down by a panel of judges, the human rights court based in Strasbourg, France, stated that “serious questions" regarding the "validity” of the international athletics regulations were “left open” in Semenya's previous case at the Court of Arbitration for Sport.

On its second appeal, the Swiss Supreme Court did not respond to the “serious concerns” of discrimination, said the European court of human rights.

The athlete has been banned by rules from competing in her favorite event, the 800 meters, since 2019, because she refused to artificially suppress her testosterone. She lost four years of her career when she was at her peak.

World Athletics showed no signs of changing its position following the verdict, saying two hours after the court's announcement that the rules would remain in effect.

"We remain of the opinion that the regulations are a necessary, reasonable and proportionate means of protecting fair competition in the women's category."

“As found by the Court of Arbitration for Sport and the Swiss Federal Court,” said World Athletics

World Athletics also stated that “will encourage” the government of Switzerland to appeal. Switzerland was the defendant in the case because Semenya was contesting her latest legal defeat in the Swiss supreme court. The Swiss government has three months to appeal.

The Swiss government has also been ordered to pay athlete Semenya €60.000 in costs and legal expenses.

The Possible Repercussions

The decision could have repercussions for other high-profile Olympic sports, such as swimming, which also has rules that prevent female athletes with high levels of natural testosterone from competing. Football, the world's most popular sport, is reviewing its eligibility rules for women and may set limits on testosterone.

While Semenya was the focus of the sport's highly emotional sexual eligibility victory nearly 15 years ago and is the main figure in the problem, she is not the only runner affected. At least three other Olympic medalists have also been hampered by rules that set limits on the level of natural testosterone female athletes can have.

World Athletics states that there are “a number” of other elite athletes who fall under the regulations. It should be noted that there are no testosterone limits in place for male athletes.

Semenya's case is not the same as the debate over transgender women who have transitioned from male to female in order to be allowed to compete in sport, although the two issues have points in common.

Semenya was identified as female from birth, raised as a girl and legally identified as female throughout her life. She has one of several conditions known as differences in sexual development, or DSDs, which cause a high level of natural testosterone to fall into the typical male range.

The athlete claims that her elevated testosterone levels should be considered simply a genetic gift and critics of the rules should compare her to the height of a basketball player or the long arms of a swimmer.

World Athletics Ignore the Decision

While athletics authorities cannot dispute Semenya's legal gender, they say her condition includes the typical male XY chromosome pattern and physical characteristics that make her "biologically male“, a statement that infuriated Semenya.

World Athletics claims that Semenya's testosterone levels give her an athletic advantage comparable to that of a male competing in women's events and that there needs to be rules for dealing with such situations.

Since 2019, athletics has imposed rules that require athletes, like Semenya, to artificially reduce their testosterone levels below a specific threshold that is measured by the amount of testosterone registered in their blood. They can do this by taking daily birth control pills, taking hormone-blocking injections, or through surgery.

If athletes choose one of the first two options, they would effectively need to do so for their entire career to remain eligible to compete regularly. Semenya has fought the rules and has refused to follow them since 2019, arguing they are discriminatory.

The European Court of Human Rights agreed and also stated that there was a violation of Semenya's rights to respect for her private life. He also supported Semenya at another point in her appeal, that she had not received a “effective remedy” for their allegations of discrimination.

"Serious questions about validity” of the testosterone rules were left unanswered, the human rights court said, including the side effects of the hormone treatment the female athletes would have to go through.

The difficulties in staying within the rules, when trying to control your natural hormone levels and “lack of evidence” that his high levels of natural testosterone actually gave him an advantage.

That last point got to the heart of the rules, which World Athletics has always said are about dealing with the unfair advantage they say Semenya has over other women.

World Athletics Toughen Decisions

Going against the international athletics body, South Africa's national athletics federation said it was "enchanted” with the verdict, deeming it a victory for the sport.

The rules have been tightened since Semenya started her case at the European human rights court, and now athletes have to lower their testosterone levels to an even lower level. The updated regulations also apply to all events and not just Semenya's favorite race track as it was before.

Caster Semenya won the gold medal in the 800 meters at the 2012 and 2016 Olympics, but was prevented from defending her title at the 2021 Tokyo Olympics because of new rules.

Conclusion

The decision of the European Court of Human Rights is a victory for Caster Semenya and for all women with DSD. The decision shows that it is possible to challenge discriminatory rules and that the human rights of all women must be respected.

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Picture: © 2018 Mark Schiefelbein