Jurist Caster Semenya’s ECHR win lauded as landmark case for athletes’ rights

[Dadparvar]

Human Rights Watch (HRW) on Tuesday commended the European Court of Human Rights (ECHR)’s decision in the case of South African runner, Caster Semenya, who challenged regulations imposed by World Athletics, the global track and field governing body that imposed discriminatory guidelines prohibiting women with Differences of Sex Development (DSD) from competing in the female category unless they underwent medical intervention to lower their natural testosterone levels.

Minky Worden, director of global initiatives at HRW, said:

Caster Semenya’s victory is a victory for all women and all athletes because the European Court found that the Court of Arbitration for Sport and Swiss Federal Tribunal had failed to uphold human rights norms despite credible claims of discrimination.

Semenya had previously taken her discrimination case to the Court of Arbitration for Sport (CAS), headquartered in Lausanne, Switzerland, which is the mandatory and exclusive jurisdiction for disputes in the sports arena, in line with World Athletics’ rules. However, her case was unsuccessful in arbitration, which led to her appealing the decision to Switzerland’s Federal Supreme Court, which later rejected her appeal on narrow grounds. In coming to their decision, the Grand Chamber found that the arbitrary set of regulations imposed a severe interference with the athletes’ privacy rights, had never undergone the proper assessment on whether they are necessary or proportionate under international human rights laws, as a result of the prior tribunals which oversaw her case not carrying out a comprehensive review.

The Grand Chamber found that Semenya’s fundamental right to a fair trial, enshrined under Article 6 of the European Convention on Human Rights (convention) had been violated and chided the Swiss Federal Supreme Court’s disregard for the seriousness of the personal rights at stake, namely the impact of the DSD Regulations on her bodily and psychological integrity and identity, right to self-determination and right to exercise her professional activity as “inconceivable.” Judge Šimáčková aptly summed up Semenya’s circumstances, stating that:

In conclusion, I should like to emphasise that the applicant was at a disadvantage vis-à-vis the International Association of Athletics Federations (IAAF), not only as a professional athlete, for the reasons set out in the present judgment, but also because she is a woman, she is black, and she is from the Global South.

Her remarks are particularly important as they underscore the evolving understanding in international human rights law that true equality requires acknowledging how overlapping forms of discrimination, such as race, gender, and geography, compound disadvantage within institutional frameworks. The dismissal of medical evidence adduced by experts in the first two trials as to the invasiveness and degrading nature of sex testing regulations is alarming, as it reinforces the archaic stereotype of there being only one metric for femininity and that individuals who do not conform to this standard are less of a woman. Other than not having a legitimate scientific basis, gender verification testing has also led to cases of misidentifying individuals with genetic variations as ineligible for competition, leading to a public smear campaign.

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