In a landmark judgment for sport and human rights, the ECHR (in a 4:3 split in favour) has found the Swiss government discriminated against Caster Semenya in its handling of legal proceedings by failing to adequately consider her human rights.
The proceedings concerned regulations introduced in 2018 where those born with ‘differences of sexual development’ (“DSD”) are required to undergo treatment to suppress testosterone levels in order to compete in certain track events (400m to one mile, including combined events over those distances). In March 2023, World Athletics introduced new rules requiring those with DSD to reduce testosterone below certain levels for a minimum of 6 months in order to compete internationally in the female category.
Notwithstanding the finding, the ECHR doesn’t have jurisdiction over World Athletics, which has confirmed that its rules remain in place. This means that unless Semenya complies, she remains unable to compete. World Athletics says the DSD Regulations are necessary ‘to ensure fair and meaningful competition within the female classification, for the benefit of the broad class of female’.
The ECHR was unable to determine whether, in Semenya’s case, the Regulations could be considered a measure which is ‘objective and proportionate to the aim pursued’.
The 4:3 split on the panel shows how divisive and difficult these issues are and how the courts continue to grapple with the balancing of competing rights.
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