Olympic champion Caster Semenya has achieved an important success in the legal marathon against the testosterone rules of the world athletics association, but has not yet finally won the race.
The 32-year-old middle-distance runner from South Africa prevailed with her appeal before the European Court of Human Rights. The international umbrella organization World Athletics quickly announced opposition to the verdict and adherence to the transgender regulations. Whether Semenya can still obtain the right to start the Paris Games in 2024 remains to be seen.
The global debate about trans people goes beyond athletics. In swimming, rugby or cycling there are also regulations banning them from international women’s competitions in sport. “This significant personal achievement for her is also a major victory for top athletes worldwide. This means that sporting institutions around the world must recognize human rights standards for the athletes they regulate,” Semenya’s lawyers said in a statement.
Judges decided with 4:3 votes
How heterogeneous the opinions on the subject are, however, is also reflected in the judgment of the seven judges in the Semenya case, who decided in their favor with only 4:3 votes. The court in Strasbourg found several violations of human rights. Semenya was confirmed in the verdict of having been discriminated against. The Court also found that their second appeal against the rules in the Swiss Supreme Court should have resulted in a “thorough institutional and procedural review” of the rules.
The regulations have also marginalized the runner since 2019 because she refused to artificially suppress her natural hormone levels. For her, “a lot is at stake” because the rules would have interrupted her career and affected her “profession”. Semenya sued unsuccessfully before the International Sports Court Cas and in 2020 before the Swiss Federal Court. The discussion about Semenya began at the 2009 World Cup in Berlin, where she began her great career as a teenager.
World Athletics had introduced limit
In view of the judges’ “strongly differing opinions in the decision”, World Athletics wants to encourage the Swiss government to refer the case to the Grand Chamber of the Human Rights Court so that “a final decision” can be made. Since no rush speed is to be expected after the possible appeal to the next instance, a start at the Paris Games should be rather difficult for the 800-meter Olympic champion from 2012 and 2016 to achieve.
“In the meantime, the DSD regulations approved by the World Athletics Executive Committee in March 2023 remain in effect,” it said in a statement. The transgender rules, which were tightened in March, “continue to be a necessary, appropriate and proportionate means of protecting fair competition in the women’s category”.
Semenya refused new rules
In November 2018, World Athletics introduced a testosterone limit in certain disciplines for eligibility in the women’s division. In contrast, the three-time world champion had unsuccessfully sued the Cas in 2019 and the Swiss Federal Court in 2020.
Semenya had made it public that she had high natural testosterone levels but refused to submit to the new rules. She didn’t want to undergo any treatment to bring her natural hormone levels below a certain threshold to be able to run the 800 meters. The World Federation, on the other hand, found that high testosterone levels gave an unfair sporting advantage and banned transgender women from competing in certain disciplines.
The judges have now found that Semenya was denied an effective remedy in the court proceedings in Switzerland. She credibly explained why she was being discriminated against because of her elevated testosterone levels. Such discrimination based on gender and sexual characteristics requires “very important reasons” to justify it. Because Semenya had so much at stake, the judges found that her case should have been given more consideration.
