Rules that would have forced Caster Semenya to artificially lower her testosterone levels to compete against other women have been ruled discriminatory to the twice Olympic champion.
The European Court of Human Rights (ECHR) found in favour of the South African runner’s appeal on Tuesday, which is the latest twist in a long-running and very public personal saga that included an earlier unsuccessfully appeal to the federal supreme court of Switzerland.
The release on the judgment said the ECHR chamber was a majority decision, with four of the seven representatives finding that Semenya’s rights under Articles 13 and 14 of the European Convention on Human Rights had been violated.
The court said: “The Court 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, especially since her complaints concerned substantiated and credible claims of discrimination as a result of her increased testosterone level caused by differences of sex development (DSD).”
This led to Semenya launching her appeal against Switzerland rather than World Athletics.
Who is Caster Semenya and why was she in court?
The 32-year-old from Polokwane is an intersex woman. She was born female but her body naturally produces higher levels of testosterone than women without the condition.
The 400 metre, 800 metre and 1,500 metre runner, who is also a three-time world champion, has long faced scrutiny since her first global title in 2009 with some other athletes complaining that they had an unfair disadvantage when up against intersex runners.
After her world gold in 2009, she won titles in 2011 and 2017 while also taking the Olympic titles in 2012 and 2016. But, for all her dominance, she was never able to break the world record at her preferred distance, the 800 metres, which was an argument in her favour.
The issue came to a head in 2016 when Semenya won Olympic gold, beating Francine Niyonsaba and Margaret Wambui, meaning all three podium positions were filled with athletes born with differences in sexual development (DSD).
World Athletics changed its rule in 2019 that meant DSD athletes would need to compete against men, change events, or take medication to suppress naturally high testosterone levels. It meant Semenya could no longer take part in the 400 metre, 800 metre and 1,500 metre unless she took medication and she attempted to qualify for the 5,000 metre for the Tokyo Olympics but, unlike Niyonsaba, was unable to.
Semenya complained medication she had been forced to take from 2010 to 2015 had made her sick. She said in 2019: “We are all human. It doesn’t matter what differences that we have in our bodies. At the end of the day, sport unites people and it speaks to the youth in a language they understand.”
From there, Semenya appealed against the decision to the Court of Arbitration for Sport and federal supreme court of Switzerland and after they rejected the case she took went to the ECHR, which found in her favour on Tuesday.
What will happen next?
The ECHR chamber judgment is not final and can be referred to a grand chamber of the court for further consideration if a request is made.
World Athletics said it noted the decision but will not be backing down.
“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 statement added.
“We will liaise with the Swiss Government on the next steps and, given the strong dissenting views in the decision, we will be encouraging them to seek referral of the case to the ECHR Grand Chamber for a final and definitive decision.
“In the meantime, the current DSD regulations, approved by the World Athletics Council in March 2023, will remain in place.”
Semenya will release a book in October called The Race to be Myself. She has not commented on the court’s judgment.
