Semenya confident of strong return after EU court verdict

In April 2018, the International Association of Athletics Federations (IAAF now called World Athletics) adopted a new set of regulations entitled: Eligibility Regulations for the Female Classification Athletes with Differences of Sex Development (DSD).

This resolution required Semenya to take hormone treatment to decrease her natural testosterone level in order to be able to take part in international competitions in the female category.

However, Semenya refused to take the hormone suppressants which subsequently made her to no longer be able to take part at international competitions.

In June 2018, Semenya challenged the validity of the DSD Regulations before the Court of Arbitration for Sport. In April 2019 the CAS dismissed Semenya’s request for arbitration and found that while the DSD regulations were discriminatory, they were a necessary, reasonable and proportionate means of achieving the aims of the World Athens so as to ensure fair competition.

Thereafter in May 2019, Semenya lodged a civil appeal with the Swiss Federal Court, arguing in particular that she had been discriminated against on grounds of sex as compared to male and female athletes with no DSD, and that her human dignity and personality rights had been breached.

However, in August 2020 the Swiss Federal Court dismissed her appeal, considering that the relevant regulations were an appropriate, necessary and proportionate means of achieving the legitimate aims of fairness in sport and of upholding the protected class.

Semenya then approached the European Court of Human Rights in February 2021, arguing that she had been subjected to discriminatory treatment on account of her DSD.

“In today’s Chamber judgment in the case of Semenya v. Switzerland (application no. 10934/21) the European Court of Human Rights held, by a majority (4 votes to 3), that there had been a violation of Article 14 (prohibition of discrimination) taken together with Article 8 (right to respect for private life) of the European Convention on Human Rights, and a violation of Article 13 (right to an effective remedy) in relation to Article 14 taken together with Article 8 of the Convention,” read part judgment from the European Court of Human Rights.

According to Semenya’s lawyer Gregory Nott, they welcomed the decision and cited that no one’s rights should be infringed upon.

“Nobody’s rights should be infringed upon. The process of the law and the institutions weren’t there for her and that’s what we had said all along throughout this whole ordeal. Caster has been strong and lead by example in the stance she has taken. There should be no invasion of anyone’s body for any reason what so ever and Caster has lead the way in that fight,” said Nott who was speaking to sportscaster Robert Marawa.

However, under Articles 43 and 44 of the European Convention, this judgment is not final. During the three-month period following its delivery, any party may request that the case be referred to the Grand Chamber of the Court. If such a request is made, a panel of five judges considers whether the case deserves further examination. In that event, the Grand Chamber will hear the case and deliver a final judgment. If the referral request is refused, the Chamber judgment will become final on that day.

Once a judgment becomes final, it is transmitted to the Committee of Ministers of the Council of Europe for supervision of its execution.

As a result, World Athletics has since said they have taken note of the judgement but cited that they remain of the view that the DSD regulations are a necessity.

“World Athletics notes the judgment of the deeply divided European Court of Human Rights. 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.

However, the case was filed against the State of Switzerland, rather than World Athletics. 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 European Court of Human Rights. Grand Chamber for a final and definitive decision. The current DSD regulations, approved by the World Athletics Council in March 2023, will remain in place,” read a statement from World Athletics.

Nevertheless, Nott said they will be doing everything they can to ensure that Semenya competes at next year’s Olympics in Paris, France.

“World Athletics have come out with even more strenuous rules which we will have to look at but in terms of the Olympics next year, we are doing everything in our power to make that happen and when I spoke to her this morning you could hear the fight in her voice and the desire to compete at the highest level is still there,” said Nott.