By Lehlohonolo Lehana.
Caster Semenya has obtained a partial victory in her ongoing challenge against World Athletics (WA), the governing athletic body, and its regulations forcing her to undergo hormone treatment.
The European Court of Human Rights (ECHR) ruled that Switzerland, where the sporting bodies are based, had failed to institute review proceedings when it should have. Switzerland was ordered to pay Semenya €60,000.
In its ruling on Tuesday, the court said: “The court found in particular that the applicant had not been afforded sufficient institutional and procedural safeguards in Switzerland to allow her to have her complaints examined effectively, especially since her complaints concerned substantiated and credible claims of discrimination as a result of her increased testosterone level caused by differences of sex development.”
Semenya, a middle-distance runner, is a two-time Olympic gold medallist and three-time World Champion in women’s 800m.
Semenya, who is classed as having “differences in sexual development (DSD)”, has refused to take the drugs since World Athletics introduced the rules in 2018.
The ruling in Semenya’s favour is largely symbolic as it does not call into question the ruling by World Athletics and does not pave the way for her to return to competition in the 800m.
In a statement, Athletics SA said, “it is delighted to learn of the decision by the European Court of Human Rights declaring that the decision to impose the DSD regulations on Caster Semenya was discriminatory and in violation of her human rights.”
“The ruling has vindicated ASA who has all along contended that the regulations were ill-conceived, did not have a proper scientific basis and were highly discriminatory against elite female athletes with elevated testosterone levels, which did not give them an unfair advantage over their other female competitors.
“ASA concurs with the Court’s views that Semenya had not been provided with sufficient institutional and procedural safeguards at the Court of Arbitration for Sport and at the Swiss Federal Supreme Court to have her complaints against the regulations examined effectively and that domestic remedies available to her could not be considered effective in her case. The Court also found that she had been discriminated against and the respect for her private life as well as her rights to an effective remedy had been violate,” read the statement.
“ASA is still awaiting the judgment to be handed down in English whereupon ASA will confer with its legal team to ascertain the consequences of the courts ruling and to make a determination on her rights to participate in the sport of athletics.”
“ASA would like to once again thank the government of South Africa, the ASA Board, legal and medical teams, all other organisations and individuals that supported the challenge against the highly discriminatory regulations that precluded her from participating in the sport in which she and other affected athletes excelled, and ASA looks forward to welcoming her earliest return to the international athletics competitions in due course, concluded the statement.
Semenya approached the France-based court in February, 2021 after losing appeals to CAS, sport’s highest court, and another plea to the Swiss Federal Tribunal (SFT) in a long-running legal battle against the regulations.
World Athletics said in a statement noting the decision that it would liaise with the Swiss government on the next steps and, “given the strong dissenting views in the decision, we will be encouraging them to seek referral of the case to the ECHR Grand Chamber for a final and definitive decision”.
The federation added: “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.”