South Africa’s middle-distance Olympic champion Caster Semenya was discriminated against after not being afforded “sufficient procedural safeguards” when challenging World Athletics regulations that effectively forced her off the running track.
There had also been a violation of the prohibition of discrimination taken together with the right to respect for private life, as well as a violation of the right to an effective remedy.
This is contained in a precedent-setting judgment by the European Court of Human Rights (ECHR) where Semenya had challenged the regulations issued by the International Association of Athletics Federations (IAAF), which required her to lower her natural testosterone levels through hormone treatment in order to be eligible to compete as a woman in international sporting events.
When she refused to undergo the treatment, she was no longer able to take part in international competitions. Her legal actions challenging the regulations in question before the Court of Arbitration for Sport (CAS) and the Federal Court were rejected, which gave rise to the ECHR appeal.
The ECHR on Tuesday ruled in favour of the appeal, saying: “The court found in particular that 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 (DSD).
“It followed, particularly with regard to the high personal stakes involved for her – namely, participating in athletics competitions at international level, and therefore practising her profession – that Switzerland had overstepped the narrow margin of appreciation afforded to it in the present case, which concerned discrimination on grounds of sex and sexual characteristics requiring ‘very weighty reasons’ by way of justification.”
After her victory in the women’s 800m race at the World Championships in Berlin in 2009, the IAAF instructed Semenya to undergo the hormone treatment, and despite suffering significant side-effects she still won the women’s 800m race at the World Championships in Daegu (2011) and the Olympic Games in London (2012).
In April 2018 the IAAF adopted a new set of regulations entitled “Eligibility Regulations for the Female Classification (Athletes with Differences of Sex Development), with which Semenya refused to comply as it had “poorly understood side-effects”.
The South African Human Rights Commission (SAHRC) also celebrated Semenya’s victory as it was its first time being involved in human rights litigation in an international forum. It said its engagement marked a significant milestone in its work regarding gender equality.
In its submissions made to the ECHR, the commission said: “The SAHRC submits that ... an individual is not required to change personal characteristics in order to qualify for inclusion, nor to confine themselves to one aspect of their identity (thus foregoing inclusion or legal protection as a member of a particular group) to qualify for legal protection as a member of another group to which the same person also belongs.
“The SAHRC submits that ... a provision which differentiates on a prohibited ground and does so in a manner which impacts adversely on an individual’s dignity is problematic; it cannot be justified circuitously by invoking intersectionality, least of all where the dignity of only a subgroup (but not the larger group itself) is impaired; accordingly discrimination against a sub-group (e.g. intersex or black females) cannot be justified by invoking protection against discrimination against the larger group (e.g. females),” SAHRC submissions read.
Responding to the judgment, World Athletics noted the decision of the “deeply divided” chamber of the ECHR.
“We remain of the view that the DSD regulations are a necessary, reasonable and proportionate means of protecting fair competition in the female category as the Court of Arbitration for Sport and Swiss Federal Tribunal both found, after a detailed and expert assessment of the evidence.
“The case was filed against the state of Switzerland, rather than World Athletics. We will liaise with the Swiss government on the next steps and, given the strong dissenting views in the decision, we will be encouraging them to seek referral of the case to the ECHR Grand Chamber for a final and definitive decision.
“In the meantime, the current DSD regulations, approved by the World Athletics Council in March 2023, will remain in place.”
Cape Times