The European Court of Human Rights has ruled in favor of double 800m Olympic champion Caster Semenya in a case involving testosterone levels in female athletes.
The 32-year-old South African was born with differences in sexual development (DSD) and is not allowed to compete in any track events without taking testosterone-reducing drugs.
A three-time 800m world champion and 800m and 1500m Commonwealth champion, Semenya has been in contention for a long time in World Athletics.
The EHCR ruling also found that the DSD regulations of World Athletics “are a source of discrimination” for Semenya “through the way they are applied and their effects”, and the regulations are “incompatible with the European Convention on Human Rights”.
Regulations requiring her to have hormone treatment were introduced by the governing body in 2018. Semenya has twice failed in legal battles to overturn the decision.
However, the ECHR case is not against sports bodies, but specifically against the Swiss government for not protecting Semenya’s rights and started with a decision of the Swiss Supreme Court three years ago.
In a lengthy ruling published on Tuesday, the ECHR found that the Swiss government did not protect Semenya from discrimination when its Supreme Court refused to overturn a decision by the Court of Arbitration for Sport (Cas), which upheld rules of World Athletics.
A statement by the ECHR read: “The court found in particular that the applicant did not have sufficient institutional and procedural safeguards in Switzerland to allow him to effectively examine his complaints, especially since his complaints related to a stable and reliable claims of discrimination as a result of his increased testosterone levels due to differences in sexual development.”
The decision, made by a panel of seven people at the ECHR, was split 4-3 in favor of Semenya and may allow her to challenge the Swiss Supreme Court or Cas decisions.
World Athletics described the ECHR chamber as “deeply split” and said it would ask the Swiss government to refer the case to the Grand Chamber of the ECHR for a “final and definitive decision”.
World Athletics said: “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 the Swiss Federal Tribunal both found -an, after a detailed and expert examination of the evidence.
“We will coordinate with the Swiss government on the next steps. In the meantime, the current DSD regulations, approved by the World Athletics Council in March 2023, will remain in place.”
Background on DSD rules
Under regulations introduced in 2018, athletes with DSD are only allowed to compete in track events between 400m and the mile if they have reduced testosterone levels.
However, in March World Athletics ruled that DSD athletes must have hormone suppression treatment for six months before being eligible to compete in all events.
Semenya ran the 5,000m at last year’s World Championships in Oregon but failed to qualify for the final.
He argued that taking testosterone-reducing medication could harm his health and that the decision denied him and other athletes with DSD the right to rely on their natural abilities.
Because of the decision, he will not be able to defend his 800m title at the Tokyo Olympics, which took place a year later than planned in 2021.
Semenya, who has always been legally recognized as a woman, said that she should be able to compete in women’s events even if her testosterone level is higher than her competitors.
In 2019 he told BBC Sport that he was “crucified” but “never stop fighting” against the regulations brought by the World Athletics, formerly known as the IAAF.
‘The decision leaves Semenya in the same position’ – analysis
Alex Capstick, BBC Sport
While the ruling appears to confirm Semenya’s long-held view that she suffered discrimination, it is uncertain if or how the court’s decision will affect the current bans on DSD athletes.
World Athletics has doubled down on its efforts to protect fair competition in the women’s category, and also wants the Swiss courts to challenge the ECHR ruling.
There is a three-month appeal window. In terms of competing – if that’s what she wants – that leaves Semenya in the same position as where she was before the ECHR ruling, unless she takes medication to suppress her testosterone or World Athletics is forced to -also in its position on DSD athletes, and it is not clear how this will happen.
Currently, she is still unable to compete in female track events.