ECtHR backs Caster Semenya in fight to lift restrictions on female athletes with elevated testosterone levels
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The European Court of Human Rights (ECHR) upheld the complaint of the notorious South African track and field athlete, two-time Olympic champion Caster Semenya, who is seeking the abolition of the rules of the International Athletics Federation (World Athletics, WA), restricting the participation of athletes with unnaturally high testosterone levels in women’s competitions. The ECHR noted that in the course of previous trials – in the Court of Arbitration for Sport (CAS) and in the Federal Court of Switzerland – Semenya’s rights to effective legal protection were violated, important circumstances for the case were not taken into account. The ECHR verdict does not lead to an immediate revision of the WA rules, as the federation has already announced in an official statement, but it does give the runner a chance to continue the lawsuit with stronger cards in her hands.
On Tuesday, the European Court of Human Rights released its ruling on a complaint filed by South African track and field athlete, two-time Olympic champion in the 800m (London 2012, Rio de Janeiro 2016) Caster Semenei against the actions of the Swiss authorities. Caster Semenya insisted that she was discriminated against because of the actions of the WA, which introduced restrictions on participation in women’s tournaments for athletes with unnaturally high levels of testosterone, and was deprived of the opportunity to effectively assert their rights. The panel of judges by a minimal majority of votes (four against three) supported Semenya’s complaint. The decision of the ECHR notes that in the course of two other processes – in the CAS and the Federal Court of Switzerland (the country’s highest court) that confirmed its decision – Semenya was indeed deprived of the right to effective legal protection. The Court concluded that the applicant had not been fully secured with her institutional and procedural rights, which prevented her from having an effective hearing of her claims. At the same time, given the importance of the case for the Seed, it should be considered with all care, which, however, did not happen. Most importantly, the ECtHR noted that the CAS judges did not fully consider the relevant aspects of the case, in particular the side effects that testosterone-lowering therapy can have, and most importantly, the evidence that increased testosterone levels do indeed provide a benefit (this was WA’s key argument when the restrictions were implemented) was not enough. The court also ordered the Swiss government to compensate Semena for €60,000 of expenses incurred to participate in the process.
The appeal to the ECHR was for Semenya the last chance in her protracted confrontation with WA, which took an unequivocal course to protect the integrity of women’s sports. Semenya was once diagnosed with hyperandrogenism (a syndrome in which, due to the increased content of male hormones, women appear characteristic of men), and many of her rivals openly stated that they considered it unfair that she was allowed to compete in women’s tournaments. Nevertheless, for a long time the South African athlete was admitted to them, winning two Olympics in her favorite 800-meter race and excelling three more times at the world championships. However, in 2018, the WA introduced a limit on the level of testosterone in the blood of athletes performing at distances from 400 m to 1 mile. Semenya didn’t fit into it, she didn’t want to lower testosterone (she tried to switch to a distance of 5000 m, but without success) and eventually turned to CAS. However, arbitration and later the Swiss Federal Court sided with WA.
And earlier this year, the WA further tightened the rules for admission to women’s tournaments of persons who have a sexual developmental disorder (DSD). It was decided that athletes with DSD would be able to compete in women’s competitions only on the condition that they maintain blood testosterone levels below 2.5 nmol / l for two years (in the vast majority of women, testosterone levels are 0.12–1.79 nmol/l). The old rules were much more relaxed. The upper limit for testosterone was 5 nmol/l for 12 months.
Now, however, Caster Semenya has a chance to continue the lawsuit. It should be noted that the decision of the ECtHR has no direct impact on the contested WA regulation. Not surprisingly, the federation immediately stated that it “remains of the opinion that regulation for persons with DSD is necessary and justified to protect women’s sports, as confirmed by CAS, the Swiss Federal Court, whose decisions were based on evidence and expert conclusions.” However, Semenya may seek another review of the case in the Swiss Federal Court, which will have to take into account the position of the ECtHR and at least subject to a deeper analysis of the grounds for which restrictions were imposed on people with DSD. After all, the ECHR directly questioned the validity of the conclusions of the experts referred to by WA. But given how slow such processes are, it cannot be ruled out that by the time the final decision is made, it will in any case be irrelevant for Semenya’s sports career. She has very little time left to qualify for the 2024 Games in Paris, and by the 2028 Olympics in Los Angeles she will be 37 years old.
However, in addition to Caster Semenya, there are enough athletes in athletics who fell under the influence of the WA regulations. In particular, Namibian runner Kristin Mboma (Tokyo 2020 silver medalist in the 200m) reported that she was not allowed to race in the 400m due to WA rules. Francine Nyonsaba (Burundi) also admitted the need to monitor testosterone levels. Ironically, in Rio de Janeiro in the 800-meter race, she was second, that is, immediately behind Semenya. At the same time, WA notes that there are “a certain number” of athletes with DSD in sports. The federation does not name exact figures or names.
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