Olympic runner Caster Semenya returns to rights court

STRASBOURG, France (CN) — Two-time Olympic champion Caster Semenya sat with her arms folded across her chest for most of Wednesday’s hearing at Europe’s top rights court as Switzerland argued judges should toss out her discrimination case.

The 33-year-old runner launched proceedings at the European Court of Human Rights three years ago after she was banned from competing in track events because of her naturally high testosterone levels, arguing the requirement by track’s governing body to take hormonal medication violated her rights.

Last year, the court sided with the famous athlete. Judges found that the hormone-focused regulations from World Athletics presented “serious concerns about discrimination against women in the world of sport, including intersex athletes."

Switzerland appealed that decision, arguing the court lacks jurisdiction. The country would be “responsible for protections for the whole world of sport" if the earlier decision stands, Switzerland’s agent Adrian Scheidegger told the 17-judge panel.

The South African has been sidelined since 2018 when new rules were introduced 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.”

Semenya challenged the regulations at the Switzerland-based Court of Arbitration for Sport in 2018. That body ruled a year later that, despite being discriminatory, the regulations were necessary to ensure fairness in track and field.

The Swiss Federal Court rejected an appeal, finding its jurisdiction over international arbitration decisions was very narrow.

In its earlier decision, the ECHR found that Switzerland had a legal obligation to ensure Semenya was treated fairly. She has “not been afforded sufficient institutional and procedural safeguards in Switzerland to allow her to have her complaints examined effectively,” the judges wrote.

But Switzerland stressed that it has no authority over World Athletics, which is headquartered in Monaco and can only review decisions from the Court of Arbitration for Sport in limited cases.

“The only line between CAS and Switzerland is that it is based in Switzerland,” Scheidegger said.

Schona Jolly, one of Semenya’s lawyers, argued if athletes cannot appeal decisions from the sports judicial body, it would leave them without any protections for their human rights.

“Sports governing bodies shouldn’t be immunized by the Swiss legal system,” Jolly told the court. “The CAS is a private law body, it doesn’t have to comply with the convention.”

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.

Though Semenya was assigned female at birth and identifies as female, she 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.

“She has always lived her life as the woman she is,” Jolly said at the end of the hearing.

After the hearing, Semenya stressed that the case wasn’t about her struggle but ensuring that other young women athletes do not face the same scrutiny she did.

“I don’t think this is about my career, this is about me being an advocate to fight for those who cannot fight for themselves,” she told reporters.

A final decision is expected before the end of the year.

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