Olympic runner Caster Semenya barred over testosterone rules prevails in rights case

STRASBOURG, France (CN) — Europe’s top human rights court ruled it discriminatory Tuesday for track star Caster Semenya to have to take hormones that would lower her naturally occurring testosterone levels so that she can compete. 

A two-time Olympic champion, Semenya has been sidelined since 2018 when World Athletics, the international governing body for track-and-field events, introduced new rules that say female athletes cannot compete in events from the quarter mile to the mile without lowering their testosterone levels to those of "a healthy woman with ovaries."

Though she was assigned female at birth and identifies as female, Semenya is classified as having a genetic variant known as 46, XY DSD that causes her to possess both X and Y chromosomes, the standard male pattern, and in turn to produce high levels of the hormone testosterone. 

A copy of Tuesday's ruling from the Strasbourg-based European Court of Human Rights is available only in French, but it says the hormone-focused regulations from World Athletics presents “serious concerns about discrimination against women in the world of sport, including intersex athletes."

Lawyers for Semenya, 32, applauded the outcome. “This important personal win for her is also a wider victory for elite athletes around the world,” attorneys Schona Jolly and Claire McCann said in a statement. 

Semenya has not yet released a statement but she has argued previously that World Athletics designed those rules for her specifically. "For a decade the IAAF has tried to slow me down, but this has actually made me stronger,” she said in 2019.

The South African submitted to hormone treatment in 2009 after World Athletics, then called the International Association of Athletics Federations, ordered her to do so after she won the women’s 800-meter race at the World Championships in Berlin. 

She subsequently won the same race during the 2011 championships and took home gold at the Summer Olympic Games in London a year later. 

In 2015, after another athlete complained, the Court of Arbitration for Sport suspended the hormone regulations, and Semenya, who had suffered significant side effects, stopped taking the medication. When the new regulations were imposed three years later, she refused to return to the treatment and brought a challenge before the Switzerland-based Court of Arbitration for Sport.

That body ruled in 2019 that, despite being discriminatory, the regulations were necessary to ensure fairness in track and field. 

Semenya next turned to the Swiss Federal Court, but it, too, rejected the appeal, arguing its jurisdiction over international arbitration decisions was very narrow. 

The rights court balked at the finding Tuesday, concluding that the Swiss court had an obligation to consider the case given the “high personal stakes” for Semenya. It said Semenya had “not been afforded sufficient institutional and procedural safeguards in Switzerland to allow her to have her complaints examined effectively."

Created in 1959 by the European Convention of Human Rights, the mission of the court is to protect the political and civil rights of Europeans. 

Tuesday's ruling also casts doubts on the usefulness of testosterone reduction, citing “serious questions” about the treatment.

Back in 2019, the Court of Arbitration for Sport concluded the treatment had significant side effects and, even if female athletes used it regularly, their hormone levels could still exceed the limit. That court also highlighted the "sparse" evidence on how high testosterone levels can impact athletic performance. 

Semenya’s legal battle meanwhile is not entirely over the finish line. World Athletics said it will not be reconsidering the rules and encouraged Switzerland to appeal to the Grand Chamber at the ECHR.

“We remain of the view that the DSD regulations are a necessary, reasonable and proportionate means of protecting fair competition,” the organization said in a statement. 

The ruling ordered Switzerland to pay Sementa 60,000 euros ($65,000) in damages. 

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