July 11, 2023 -Champion runner Caster Semenya won a potentially landmark legal decision for sports on Tuesday when the European Court of Human Rights decided she was discriminated against by rules in track and field that force her to medically reduce her natural hormone levels to compete in major competitions.
The ruling by the Strasbourg, France-based court questioned the “validity” of the contentious international athletics regulations in that they infringed Semenya’s human rights.
“Caster has never given up her fight to be allowed to compete and run free,” Semenya’s lawyers said in a statement. “This important personal win for her is also a wider victory for elite athletes around the world. It means that sporting governance bodies around the world must finally recognize that human rights law and norms apply to the athletes they regulate.”
But the two-time Olympic champion’s success after two failed appeals in sports’ highest court and the Swiss supreme court came with a major caveat. Amid her bid to be allowed to run again without restriction and go for another gold at next year’s Olympics in Paris, Tuesday’s judgment did not immediately result in the rules being dropped.
That might still take years, if it happens at all.
The South African athlete’s challenge against the testosterone rules has taken five years so far.
It has gone from the Switzerland-based Court of Arbitration for Sport to the Swiss supreme court and now the European rights court. The 4-3 ruling in Semenya’s favor by a panel of human rights judges in the unusual position of ruling on a sports issue merely opened the way for the Swiss supreme court to reconsider its decision.
That might result in the case going back to sports court CAS in Lausanne. Only then might the rules enforced by World Athletics be possibly removed.
The 32-year-old Semenya, who has been barred by the rules from running in her favorite 800-meter race since 2019 and has lost four years of her career at her peak, has only 13 months until Paris. The world championships, where she has won three titles, are next month.
World Athletics showed no sign of changing its position, saying soon after the verdict was published that its rules would “remain in place.”
“We remain of the view that the … 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,” World Athletics said.
World Athletics also said it would be “encouraging” the government of Switzerland to appeal. Switzerland was the respondent in the case because Semenya was challenging her last legal loss in 2020 in the Swiss supreme court. Switzerland’s government has three months to appeal.
The Swiss government was also ordered to pay Semenya 60,000 euros ($66,000) for costs and expenses.
The ruling could have repercussions for other high-profile Olympic sports like swimming, which also has rules barring female athletes with high natural testosterone. Soccer, the world’s most popular sport, is reviewing its eligibility rules for women and could set limits on testosterone.
While Semenya has been at the center of the highly emotive issue of sex eligibility in sports for nearly 15 years and is the issue’s figurehead, she is not the only runner affected. At least three other Olympic medalists have also been impacted by the rules that set limits on the level of natural testosterone that female athletes may have. World Athletics says there are “a number” of other elite athletes who fall under the regulations.
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 being allowed to compete in sports, although the two issues do have crossover.
Semenya was identified as female at birth, raised as a girl and has been legally identified as female her entire life. She has one of a number of conditions known as differences in sex development, or DSDs, which cause naturally high testosterone that is in the typical male range.
Semenya says her elevated testosterone should simply be considered a genetic gift, and critics of the rules have compared it to a basketballer’s height or a swimmer’s long arms.
While track authorities can’t challenge Semenya’s legal gender, they say her condition includes her having the typical male XY chromosome pattern and physical traits that make her “biologically male,” an assertion that has enraged Semenya. World Athletics says Semenya’s testosterone levels give her an athletic advantage comparable to a man competing in women’s events and there needs to be rules to address that.
Track has enforced rules since 2019 that require athletes like Semenya to artificially reduce their testosterone to below a specific mark, which is measured through the amount of testosterone recorded in their blood. They can do that by taking daily contraceptive pills, having hormone-blocking injections, or undergoing surgery. If athletes choose one of the first two options, they would effectively need to do it for their entire careers to remain eligible to compete regularly.
Semenya has fought against the regulations and has refused to follow them since 2019, saying they discriminate against her because of her condition.
On Tuesday, the European Court of Human Rights agreed. It also found for Semenya on another point of her appeal, that she wasn’t given “effective remedy” against that discrimination when the Court of Arbitration for Sport and the Swiss supreme court denied her appeals.
There were “serious questions as to the validity” of the testosterone rules, the court said, including with any side effects of the hormone treatment athletes would have to undergo, the difficulties in them remaining within the rules by trying to control their natural hormone levels, and the “lack of evidence” that their high natural testosterone actually gave them an advantage anyway.
That last point struck at the heart of the regulations, which World Athletics has always said is about dealing with the unfair sports advantage it says Semenya has over other women.
South Africa’s track federation said it was “delighted” with Tuesday’s verdict.
The rules have been made stricter since Semenya launched her case at the European rights court and athletes now have to reduce their testosterone level to an even lower mark. The updated regulations also apply to every event and not just Semenya’s favored race range between 400 meters and one mile, which they did previously
Semenya won gold in the 800 meters at the 2012 and 2016 Olympics but was prevented from defending her title at the Tokyo Olympics in 2021 because of the regulations.