Although Semenya has always identified as female despite having been legally assigned a female gender since birth, new regulations adopted by the body in charge of track and field in 2019 compelled her to artificially suppress her natural testosterone in order to compete in women’s events.
The European Court of Human Rights concluded on Tuesday that Caster Semenya was discriminated against and that there were “serious questions” regarding the rules’ legality. Semenya, a two-time Olympic champion runner, won the appeal.
The rules would still be in place, according to World Athletics, the organization that enforces the rules, so the South African runner wouldn’t immediately be able to compete at the highest level.
Semenya’s case in front of the rights court was not against World Athletics directly, but rather the Swiss government, but the ruling was nonetheless a significant development that cast doubt on the regulations’ future.
She has one of several abnormalities known as variations in sex development, according to World Athletics, which causes her to naturally have testosterone levels in the male range and gives her an unfair edge in women’s contests.
Semenya has been fighting the testosterone limits in the courts for years, although she already lost two appeals at the highest court in sports in 2019 and 2020. The Swiss government was the respondent in the European Court of Human Rights case because of that second rejection of her appeal.
Semenya’s complaint of discrimination was upheld by the Strasbourg-based rights court by a 4-3 majority of judges, and they noted that the two prior cases she lost at the Court of Arbitration for Sport and the Swiss Supreme Court prevented her from receiving an “effective remedy” against the discrimination.
The judgement on Tuesday was in many ways an assessment of the CAS decision from 2019. The sports court upheld the regulations stating that in order for Semenya and other athletes with so-called differences in sex development conditions, or DSDs, to compete in prestigious events like the Olympics and world championships, they must take birth control pills, receive hormone-blocking injections, or have surgery.
The regulations were first upheld in a few competitions, but World Athletics this year broadened and tightened them. If they wanted to compete in any races, athletes like Semenya had to further suppress their testosterone levels.
The European rights court ruled that the Swiss-based CAS’s decision to reject Semenya’s first appeal did not adequately take into account critical elements like the adverse effects of hormone therapy, the challenges faced by athletes in adhering to the rules, and the paucity of evidence showing that their high natural testosterone levels actually gave them an advantage.
The main justification for the regulations’ introduction by World Athletics was an unfair advantage.
Additionally, the European Rights Court noted that Semenya’s second legal challenge to the restrictions at the Swiss Supreme Court ought to have resulted in “a thorough institutional and procedural review” of the standards, but that did not occur when that court similarly decided against Semenya.
The 32-year-old Semenya plans to compete at the Paris Olympics in 2016. She won the 800 meter gold in the Olympics in 2012 and 2016, however due to rules, she was unable to defend her title in Tokyo.