The European Court of Human Rights has ruled in favour of double 800m Olympic champion Caster Semenya in a case involving testosterone levels in female athletes.
The 32-year-old South African was born with differences of sexual development (DSD) and is not allowed to compete in any track events without taking testosterone-reducing drugs.
A three-time 800m world champion and 800m and 1500m Commonwealth champion, Semenya has been in a long-running dispute with World Athletics.
Regulations requiring her to have hormone treatment were introduced by the governing body in 2018. Semenya has twice failed in legal battles to overturn the decision.
However, the case at the ECHR was not against sporting bodies or DSD rules – but specifically against the government of Switzerland for not protecting Semenya’s rights and dates back to a Swiss Supreme Court ruling three years ago.
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In a lengthy judgement, the ECHR found the Swiss government did not protect Semenya from being discriminated against when its Supreme Court refused to overturn a decision by the Court of Arbitration for Sport (CAS), which upheld the World Athletics rules.
CAS has previously ruled that testosterone rules for athletes like Semenya, were discriminatory – but that the discrimination was “necessary, reasonable and proportionate” to protect “the integrity of female athletics”.
An ECHR statement said Semenya “had not been afforded sufficient institutional and procedural safeguards in Switzerland” to allow her to “have her complaints examined effectively, especially since her complaints concerned substantiated and credible claims of discrimination as a result of her increased testosterone level caused by differences of sex development.”
The EHCR ruling suggests that the World Athletics’ DSD regulations were “a source of discrimination” for Semenya “by the manner in which they were exercised and by their effects”, and the regulations were “incompatible with the European Convention on Human Rights”.
The decision, made by a panel of seven people at the ECHR, was split 4-3 in favour of Semenya and may allow her to challenge the Swiss Supreme Court or Cas rulings.
World Athletics described the ECHR chamber as “deeply divided” and said it will ask the Swiss government to refer the case to the ECHR Grand Chamber for a “final and definitive decision”.
