Olympic champion Caster Semenya wins human rights testosterone case
Associated Press | 7/13/2023, 6 p.m.
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Champion runner Caster Semenya won a potentially landmark legal decision for sports on Tuesday when the European Court of Human Rights decided she was discriminated against by rules in track and field that force her to medically reduce her natural hormone levels to compete in major competitions.
The ruling by the Strasbourg, France-based court questioned the “validity” of the contentious international athletics regulations in that they infringed Semenya’s human rights.
“Caster has never given up her fight to be allowed to compete and run free,” Semenya’s lawyers said in a statement. “This important personal win for her is also a wider victory for elite athletes around the world. It means that sporting governance bodies around the world must finally recognize that human rights law and norms apply to the athletes they regulate.”
But the two-time Olympic champion’s success after two failed appeals in sports’ highest court and the Swiss Supreme Court came with a major caveat. Amid her bid to be allowed to run again without restriction and go for another gold at next year’s Olympics in Paris, Tuesday’s judgment did not immediately result in the rules being dropped.
That might still take years, if it happens at all.
The South African athlete’s challenge against the testosterone rules has taken five years so far.
It has gone from the Switzerland-based Court of Arbitration for Sport to the Swiss Supreme Court and now the European rights court. The 4-3 ruling in Semenya’s favor by a panel of human rights judges in the unusual position of ruling on a sports issue merely opened the way for the Swiss Supreme Court to reconsider its decision.
That might result in the case going back to sports court CAS in Lausanne. Only then might the rules enforced by World Athletics be possibly removed.
The 32-year-old Semenya, who has been barred by the rules from running in her favorite 800-meter race since 2019 and has lost four years of her career at her peak, has only 13 months until Paris. The world championships, where she has won three titles, are next month.
World Athletics showed no sign of changing its position, saying soon after the verdict was published that its rules would “remain in place.”
“We remain of the view that the ... 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,” World Athletics said.
World Athletics also said it would be “encouraging” the government of Switzerland to appeal. Switzerland was the respondent in the case because Semenya was challenging her last legal loss in 2020 in the Swiss Supreme Court. Switzerland’s government has three months to appeal.
The Swiss government also was ordered to pay Semenya 60,000 euros ($66,000) for costs and expenses.
The ruling could have repercussions for other high-profile Olympic sports like swimming, and soccer, the world’s most popular sport, is reviewing its eligibility rules for women and could set limits on testosterone.
While Semenya has been at the center of the highly emotive issue of sex eligibility in sports for nearly 15 years and is the issue’s figurehead, she is not the only runner affected. At least three other Olympic medalists also have been impacted by the rules that set limits on the level of natural testosterone that female athletes may have. There are no testosterone limits in place for male athletes.
Semenya was identified as female at birth, raised as a girl and has been legally identified as female her entire life. She has one of a number of conditions known as differences in sex development, or DSDs, which cause naturally high testosterone that is in the typical male range.
Semenya said her elevated testosterone should simply be considered a genetic gift, and critics of the rules have compared it to a basketballer’s height or a swimmer’s long arms.
While track authorities can’t challenge Semenya’s legal gender, they said her condition includes her having the typical male XY chromosome pattern and physical traits that make her “biologically male,” an assertion that has enraged Semenya. World Athletics says Semenya’s testosterone levels give her an athletic advantage comparable to a man competing in women’s events and there needs to be rules to address that.
Track has enforced rules since 2019 that require athletes like Semenya to artificially reduce their testosterone to below a specific mark, which is measured through the amount of testosterone recorded in their blood. They can do that by taking daily contraceptive pills, having hormone-blocking injections, or undergoing surgery. If athletes choose one of the first two options, they would have to do so for their entire careers to remain eligible to compete regularly.