Caster Semenya Wins Key Hearing at European Court of Human Rights Over Eligibility Rules

In a significant development for athlete rights, the European Court of Human Rights (ECHR) has ruled that Caster Semenya, the celebrated two-time Olympic 800m champion, experienced a violation of her right to a fair hearing. This ruling stems from a 2023 appeal lodged by Semenya against World Athletics regulations that have effectively barred her from competing in her primary events.

Semenya, a dominant force in middle-distance running from 2009 to 2019, was unable to compete in the 800m since 2019 when World Athletics implemented rules requiring athletes with Differences of Sexual Development (DSD) to reduce their testosterone levels to be eligible for certain track events. These rules were later expanded to cover all female track and field events. Semenya, who has been vocal about her belief that these regulations constitute discrimination against athletes with DSD, has been engaged in a prolonged legal battle.

The initial case at the ECHR was not a direct challenge to World Athletics’ DSD rules themselves, but rather a complaint against the Swiss government. This legal action dates back to a 2020 ruling by the Swiss Federal Supreme Court. The Swiss government’s request to have the case referred to the ECHR’s Grand Chamber has now concluded with a finding that the Swiss court’s decision “had not satisfied the requirement of particular rigour” as mandated by Article 6 of the European Convention on Human Rights, which guarantees the right to a fair hearing.

While the Grand Chamber found the aspects of Semenya’s complaint related to Articles 8 (right to respect for private life), 13 (right to an effective remedy), and 14 (prohibition of discrimination) inadmissible because they did not fall within Switzerland’s jurisdiction, the victory on the fair hearing aspect is a crucial one. It’s important to note that because this case concerns the Swiss government and not World Athletics directly, it will not immediately alter the existing eligibility restrictions for DSD athletes.

“This is a reminder to the leaders that athletes need to be protected,” Semenya stated after leaving the court in Strasbourg, France. “Before we can regulate we have to respect athletes and put their rights first.” The ECHR’s Grand Chamber decisions are final and not subject to appeal, though Semenya’s case may now return to the Swiss federal court in Lausanne.

World Athletics has thus far declined to comment on the ruling.

Who is Caster Semenya?

Caster Semenya, hailing from South Africa, achieved legendary status in athletics, securing two Olympic gold medals and three World Championship titles in the 800m race. Her career, marked by remarkable dominance between 2009 and 2019, saw her achieve a striking 30 consecutive victories in the 800m, including her win at the Doha Diamond League in May 2019. Upon her return from her first World Championship gold in 2009, she was met with immense celebration in South Africa, with thousands of fans welcoming her at Johannesburg airport.

However, Semenya’s rapid ascent to global stardom was shadowed by scrutiny regarding her gender and potential biological advantages. It was later revealed that she was born with Differences of Sexual Development (DSD), specifically 46 XY 5-alpha-reductase deficiency (5-ARD). A consequence of this condition is an elevated level of testosterone, a hormone known to enhance muscle mass and strength. According to a 2023 CAS ruling, individuals with 5-ARD possess testosterone levels comparable to those with male XY chromosomes, granting them a “significant sporting advantage over 46 XX female athletes.” In a candid interview with BBC Sport in 2023, Semenya shared personal details about her condition, stating, “I’m not ashamed to be different,” and clarifying that she was “born without a uterus” and possesses “internal testicles,” while affirming, “I am a woman and have a vagina.”

Semenya has shifted her focus from collecting medals to actively campaigning against what she perceives as unfair treatment by sporting authorities, as she stated in 2023, “I am turning my attention to winning battles against the authorities.”

The ruling by the ECHR’s Grand Chamber is final. The case may now be remitted to the Swiss federal court in Lausanne for further consideration.