On 11 July 2023, the Chamber of the third section of the European Court of Human Rights (ECtHR) handed down its judgment in the case of Semenya v. Switzerland finding that Caster Semenya’s right to freedom from discrimination, taken together with her rights to respect for private life and to an effective remedy had been violated.
The case arose from a complaint brought to the Strasbourg Court against Switzerland by Caster Semenya, a South African international-level athlete specializing in middle-distance races (800 to 3000 metres). She had refused to comply with the “Eligibility Regulations for the Female Classification (Athletes with Differences of Sex Development – the DSD Regulations)” of the International Association of Athletics Federations (IAAF, now World Athletics), requiring her to reduce her natural testosterone level through hormone treatment in order to be allowed to participate in international competitions in the women’s category, since the side-effects of such treatment were not well understood. Her failure to comply with the DSD Regulations resulted in her being barred from participation in international competitions.
ICJ Africa Director, Kaajal Ramjathan-Keogh, said:
“We salute Caster Semenya’s victory in Strasbourg and this landmark decision by the ECtHR. However, it remains uncertain whether she will be able to immediately compete in the middle-distance races, since, for the moment, the current DSD Regulations remain in place and she is bound by them.”
In accordance with article 44(2) of the European Convention on Human Rights (ECHR), the judgment will not become final until (a) the parties declare that they will not request that the case be referred to the Grand Chamber; or (b) three months after the date of the judgment, if referral of the case to the Grand Chamber has not been requested; or (c) the panel of the Grand Chamber rejects any request to refer under Article 43 of the Convention.
Initially, Caster Semenya challenged the DSD Regulations before the Court of Arbitration for Sport (CAS). However, the CAS dismissed her request for arbitration, finding that, while the DSD Regulations were discriminatory, nevertheless, they were, a necessary, reasonable and proportionate means of achieving the IAAF’s aims of ensuring fair competition. In August 2020, the Swiss Federal Court, in turn, dismissed Semenya’s appeal against the CAS’s decision. Among other things, the Swiss Federal Court too found that the DSD Regulations were an appropriate, necessary and proportionate means of achieving the legitimate aims of fairness in sport.
In the aftermath of the Swiss Federal Court’s decision, Semenya filed an application with the ECtHR. Among other things, she complained before the Strasbourg Court that:
- in violation of her right to freedom from discrimination (article 14 of the European Convention on Human Rights, ECHR), taken together with her right to respect for private life (article 8 of the ECHR), she had been subjected to discrimination on the grounds of her DSD;
- in violation of her right to an effective remedy (article 13 of the ECHR), taken together with, among others, her right to freedom from discrimination and her right to respect for private life, the Swiss Federal Court’s limited review had deprived her of an effective remedy.
In its judgment in the case, the ECtHR found that Switzerland had failed to ensure that Caster Semenya was afforded the necessary institutional and procedural safeguards enabling an effective examination of her complaints before the domestic authorities. In light of this, the ECtHR found that it was not in a position to affirm that the DSD Regulations, such as they were applied to Caster Semenya, could be considered an objective and proportionate measure to achieve their stated aim. As a result, the ECtHR found that Caster Semenya’s right to freedom from discrimination, taken together with her right to respect for private life had been violated.
For essentially the same reasons, namely the absence of sufficient institutional and procedural safeguards in Switzerland, the ECtHR ultimately found that considered as a whole and in the particular circumstances of her case, the domestic remedies available to her could not be regarded as effective within the meaning of article 13 of the ECHR since the Swiss Federal Court, like the CAS before it, had not responded effectively to the substantiated and credible allegations, including of discrimination, made by the Caster Semenya. In light of this, the ECtHR found a violation of Caster Semenya’s right to an effective remedy (article 13 ECHR), in light of her right to freedom from discrimination (article 14 ECHR) taken together with her right to respect for her private life (article 8 ECHR).
The International Commission of Jurists (ICJ) intervened in the proceedings before the Strasbourg Court by way of a third-party intervention focusing its written submissions on the scope of the protection against discrimination under article 14 of the ECHR. Specifically with regard to article 14 of the ECHR, the ICJ’s submissions invited the ECtHR to interpret either “sex” or “other status” as including “sex characteristics”. The ECHR’s ruling affirmed this rationale.
In the aftermath of the judgment, the IAAF stated:
“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. The case was filed against the state of Switzerland, rather than World Athletics. 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 Grand Chamber for a final and definitive decision. The current DSD regulations, approved by the World Athletics Council in March 2023, will remain in place.”
Download:
[ICJ written submission to EtCHR] ICJ Intervention – Semenya v. Switzerland
For more information, contact:
Kaajal Ramjathan-Keogh, ICJ Africa Director Africa Programme, [email protected]
Mulesa Lumina, ICJ Africa Legal and Communications Associate Officer, [email protected]
Feature image:
“La sud africaine: Caster Semenya, médaille d’argent aux 800m” by Citizen59 is licensed under CC BY-SA 2.0 
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