Caster Semenya, one SA’s top athletes, has obtained a small victory in her ongoing challenge against World Athletics (WA), the governing athletic body, and its regulations forcing her to undergo hormone treatment. On Tuesday, 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.
Semenya, a middle-distance runner, is a two-time Olympic gold medallist and three-time World Champion in women’s 800m. However, after her 2009 victory, the International Association of Athletics Federations (IAAF) — now the WA — said, according to regulations, she would have to decrease her testosterone. She underwent hormone treatment, suffering severe side effects. Despite this, she still won in 2011 and 2012.
In 2015, the Court of Arbitration for Sport (CAS), based in Switzerland, temporarily suspended the IAAF regulations. Semenya stopped taking the treatment.
In 2018, new IAAF regulations were introduced. Semenya refused to adhere, saying the treatment she would be forced to undergo had unknown side effects. She then requested an arbitration concerning the new regulations at the CAS in Switzerland. In 2019, however, the CAS dismissed her request for arbitration, saying the regulations were necessary to ensure fair competition even if they were discriminatory.
She appealed against this to the Federal Court in Switzerland. However, her appeal was also dismissed on similar grounds.
Semenya then sought relief using the European Convention on Human Rights, to which Switzerland is a signatory. The European Court of Human Rights (ECHR) oversees disputes concerning the Convention and member states.
In 2021, Semenya launched her claim in the ECHR challenging the findings of the CAS and Federal Courts, as well as the regulations. The court allowed WA and others to intervene. The court was made up of seven judges from various European states.
The ECHR said while Switzerland as a nation state did not adopt the regulations, the court was allowed to examine whether CAS and the Federal Court’s findings aligned with the Convention. Therefore the court did not engage with the regulations. The court only looked at whether the Switzerland forums — the CAS and the Federal Court — in their rulings against Semenya had discriminated against her.
The majority of the ECHR ruled that Semenya had sufficient basis to get full review proceedings, based on discrimination. Both the CAS and the Federal court conceded there was discrimination based on her sex. However, the ECHR said neither forum had done enough and had too quickly shut the door on Semenya. She had no other remedy than these forums and by not allowing a full ventilation of the issues, had failed to respond her serious concerns.
Her rights to proper legal safeguards and not to be discriminated against were therefore violated.
The ECHR ordered Switzerland to pay Semenya €60,000 for her legal costs. With this finding, Semenya can get a proper hearing.
In a statement, WA noted the challenge was against Switzerland, not the WA itself. However, WA said: “We will 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 [appeal body] for a final and definitive decision. In the meantime, the current ... regulations ...will remain in place.”
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