Champion runner Caster Semenya scored a potentially historic legal victory Tuesday when the European Court of Human Rights decided she was discriminated against under sporting rules that require her to medically lower her natural hormone levels to compete in major competitions.
The ruling by the court based in Strasbourg, France, questioned the «validity» of the controversial international athletics standards insofar as they violated Semenya’s human rights.
But the two-time Olympic champion’s first legal success after two unsuccessful appeals at the highest sports court and the Swiss supreme court came with an important caveat. Amid her bid to be allowed to run without restrictions again and go for another gold at next year’s Olympics in Paris, Tuesday’s trial, while important, did not immediately result in the rules being scrapped.
That could still take years.
The South African athlete’s challenge against the testosterone rules began in 2018.
It has gone from the Swiss-based Court of Arbitration for Sport to the Swiss supreme court and now to the European court of law. The 4-3 ruling in Semenya’s favor by a panel of human rights judges simply opened the way for the Swiss supreme court to reconsider his decision.
That could result in the case returning to CAS in Lausanne. And only then could the highly controversial rules imposed by World Athletics be removed.
Semenya, 32, who has been banned by the rules from her favorite 800m race since 2019 and has missed four years of her career in her prime, has just 13 months until Paris.
In a statement shortly after the European court of human rights decision was published, World Athletics showed no sign of budging, saying its rules would «remain in place.»
“We remain of the opinion that the … regulations are a necessary, reasonable and proportionate means to protect fair competition in the women’s category, as found by the Court of Arbitration for Sport and the Swiss Federal Court,” World Athletics said.
World Athletics also said it would «encourage» the Swiss government to appeal the ruling. Switzerland was the defendant in the case because Semenya was contesting his latest legal loss in the Swiss supreme court. The Swiss government has three months to appeal.
The Swiss government was also ordered to pay Semenya 60,000 euros ($66,000) for costs and expenses.
There was no immediate reaction from Semenya or her lawyers in South Africa.
While Semenya has been at the center of the highly emotional issue of sexual eligibility in sports and is the figurehead of the problem by defying the rules, she is not the only athlete affected. At least three other Olympic medalists have also been affected by rules that set limits on the level of natural testosterone female athletes can have if they want to compete. World Athletics says there are «a number» of other elite athletes who are subject to the regulations.
There are no testosterone limits for male athletes.
Semenya’s case is not the same as the debate over transgender women who have transitioned from male to female and are allowed to compete in sports, although the two issues intersect.
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 several conditions known as differences in sexual development, or DSD, that cause naturally high testosterone that is in the typical male range.
Semenya says her naturally high testosterone should be considered a genetic gift in the same way that a basketball player’s height or a swimmer’s long arms are.
While athletics officials cannot dispute Semenya’s legal gender, they say her condition includes having the typical male XY chromosome pattern and physical traits that make her «biologically male,» a claim that has angered Semenya. World Athletics says Semenya’s testosterone levels give her an athletic advantage that is comparable to a man competing in women’s events and there must be rules to address that.
To do that, athletics has enforced rules since 2019 that require athletes like Semenya to artificially lower their testosterone below a specific mark, which is measured by the amount of testosterone recorded in their blood. They can do this by taking daily birth control pills, injecting hormone blockers, or having surgery as per the rules. If athletes choose one of the first two options, they would actually have to do so for their entire career to remain eligible to compete regularly.
Semenya has criticized the regulations and refused to follow them since 2019, saying they discriminated against her because of her condition.
On Tuesday, the European Court of Human Rights agreed. It also found in Semenya’s favor at another point in her appeal, that she was not granted an «effective remedy» against such discrimination when the Court of Arbitration for Sport and the Swiss Supreme Court denied her appeals.
There were «serious questions about the validity» of the testosterone rules, the court said, even with the side effects of hormone treatment that athletes would have to suffer, the difficulties for them to stay within the rules by trying to control their natural hormone levels. , and the «lack of evidence» that their naturally high 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 sporting advantage Semenya has over other women.
The European Court of Rights also found that Semenya’s second legal appeal against the rules in the Swiss supreme court should have led to «a thorough institutional and procedural review» of the rules, but that did not happen.
The rules have become stricter since Semenya filed her case with the European human rights court, and World Athletics announced in March that athletes would 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 range between 400 meters and a mile, as they previously did.
Semenya won gold in the 800m at the 2012 and 2016 Olympics, but was unable to defend her title at the 2021 Tokyo Olympics due to regulations.