The European Court of Human Rights ruled runner Caster Semenya’s human rights were violated by the supreme court of Switzerland.
The Swiss court rejected Semenya’s appeal and held that she must comply with an order from World Athletics which requires her to take medication to lower her testosterone levels to compete.
Four of the seven judges on the ECHR found on July 11 that Switzerland’s policy violated Semenya’s rights under the anti-discrimination regulation established under Article 14 of the European Convention on Human Rights. The majority also found the prior ruling had violated Article 13 because it left the athlete without an effective remedy to the discrimination, per AFP.
Semenya is a two-time Olympic 800-meter champion who has hyperandrogenism. She is officially recognized as having “differences in sexual development” (DSD) but has been legally identified as female since birth. While the exact details of her condition have never been made public, it is acknowledged that her testosterone levels — which influence hemoglobin production, muscle tone and bone mass — are higher than the female average.
In 2018, World Athletics required athletes with DSD to maintain testosterone levels that do not exceed 5 nanomoles per liter (nmol/L) by 1 if they want to compete in events ranging from 400 meters to a mile. The organization, previously known as the International Association of Athletics Federations, reported that female athletes with higher than average testosterone have up to a 9% advantage compared to women with average testosterone levels.
The regulation has been updated since its initial enactment. Now athletes with DSD must maintain testosterone levels of 2.5 nmol/L and keep that level for two years. The requirement is also applied to races of all distances.
To reduce their testosterone levels, athletes with DSD could take birth control pills, receive testosterone-blocking injections, or undergo surgery. Semenya took birth control for roughly five years until 2019 and has testified she experienced several significant side effects including becoming more prone to injury.
The South African athlete refused to comply with the rules regarding testosterone levels since they were introduced in 2018. Prior to the Swiss supreme court, the Court of Arbitration for Sport ruled in favor of World Athletics and said in May 2019 that Semenya would need to comply in order to compete.
The Court of Arbitration for Sport said the rule was “necessary, reasonable and proportionate” in order to maintain fairness in women’s athletics.
The Swiss court’s ruling, a 71-page decision published in September of 2020, meant Semenya could not compete at the Olympics in Tokyo in 2021.
“I am very disappointed by this ruling, but refuse to let World Athletics drug me or stop me from being who I am,” Semenya said in a statement at the time, per CBC. “Excluding female athletes or endangering our health solely because of our natural abilities puts World Athletics on the wrong side of history.”
World Athletics released a statement reiterating its support for the testosterone regulation.
“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 organization said, per Sky News.
The ECHR’s ruling did not immediately mandate World Athletics change its policy. It remains unclear if Semenya will compete at the next Olympics in Paris.
