The European Court of Human Rights Strasbourg has ended a legal battle that lasted more than a decade. It ruled today in favor of the South African athlete Caster Semenya who considered herself discriminated against as a woman after the International Athletics Federation (IAAF) forced her to take medication to participate in certain women’s events for having a very high testosterone level.
It was at the 2009 World Championships in Berlin when Caster Semenya underwent a femininity test – which revealed that her body naturally generates more testosterone than normal. Since then, the athlete has experienced a struggle with the World Athletics board of directors, which shortly after developed regulations for women with hyperandrogenism.
In those rules, the International Federation prevented athletes who have to reduce their testosterone levels below 5 nanomoles per liter for a continuous period of at least six months from competing in events ranging from 400 meters to the mile. This is a rule that applies only to people with an XY genetic system, corresponding to women, and not with XX, that of men.
The athlete admitted that she took the medication for several years before filing the relevant legal appeals against the regulations. “That medication made me sick, it made me gain weight, I had panic attacks, I didn’t know if I was ever going to have a heart attack. It’s like stabbing yourself with a knife every day. I had no choice. I was 18, I wanted to run , I wanted to get to the Olympic Games, it was the only option for me,” he said in 2022 in an interview with HBO Real Sports.
Now in their sentence, the European judges formally condemn Switzerland, which is where the Sports Arbitration Court (CAS) is based, which had rejected the arbitration requested by Semenya so that she would not be required to undergo hormonal treatment that would reduce the testosterone level below the threshold that the IAAF had set for him as a condition to allow him to compete.
Since the athlete had not requested any compensation for material or moral damages, the European judges have not set any compensation, but Switzerland will have to pay her 60,000 euros for legal costs.
In the first place, the European judges reproach the Swiss Justice for having washed its hands on the grounds that its power to examine this case was limited, since the decision of origin had been from the TAS, which had applied a regulation of the federation -a testosterone limit in female tests- that seemed “suitable, necessary and proportionate” for there to be sports equity.
In this sense, the European Court of Human Rights (ECHR) stresses that the South African middle-distance runner did not have sufficient institutional and procedural guarantees in Switzerland to assert her arguments of being discriminated against, which were “credible” and “well-founded”. .
In fact, the ECtHR recalls that the TAS itself acknowledged its doubts about the regulations drawn up by the IAAF, which in practice forced him to undergo hormonal treatments with “significant” side effects and also did not give him a total guarantee of allowing him to lower the testosterone at a sufficient level.
In addition, it notes that in recent reports, competent human rights bodies of the Council of Europe (to which the Strasbourg Court belongs) have emphasized their “serious concerns” about discrimination against women or intersex athletes in sport. with rules like that.
He also recalls that he has repeatedly insisted that “differences based exclusively on sex must be justified by ‘very strong considerations’, ‘compelling reasons’ or ‘particularly solid and compelling reasons'”. In short, with Semenya, Switzerland (and consequently the CAS and the IAAF) violated the article of the European Convention on Human Rights that prohibits discrimination.
Beyond the merits of the matter, the ruling has consequences for the operation of the Sports Court to the extent that the ECHR makes it very clear that it is competent in matters such as this to guarantee respect for the European Convention on Human Rights, and therefore which constitutes a means of appeal on what the TAS can decide.
