A session of all 17 members of the European Court of Human Rights agreed this week to deliver a verdict on the regulations that prevent the South African athlete Caster Semenya from participating in international athletic events. Semenya is not allowed to participate in the events because she refuses to take medication to lower her testosterone level.
In July this year, the Olympic 800 m champion won a long legal battle in the international court in Strasbourg, which ruled that she is the victim of discrimination.
However, Swiss authorities, backed by World Athletics, have announced their intention to take the case to the European Court of Human Rights. This court’s rulings are binding.
The verdict from earlier was delivered with a slim majority of four judges against three.
“On November 6, at the request of the Swiss government, the case was referred to the full bench of 17 judges of the European Court of Human Rights,” this court said. However, it is not clear when the case will be investigated again.
The three-time world champion in middle distance races is classified as a DSD athlete, i.e. an athlete with “differences in sexual development”. She has always legally identified as female.
Since World Athletics’ governing body introduced rules in 2018 that women with high testosterone levels are obliged to lower these levels with the use of medication, Semenya has refused to do so.
As a result, she was banned from competing in the 800 m event.
In her long legal battle, Semenya lost an appeal in the Court of Arbitration for Sport and three years ago Switzerland’s Supreme Court upheld the decision.
Semenya then took her case against Switzerland to the European Court of Human Rights.
“Switzerland has exceeded the narrow space of appreciation granted to it. The case dealt with discrimination based on gender and sexual characteristics which required ‘very weighty reasons’ by way of justification,” the European Court of Human Rights said at the time.
“The great importance of the case for the applicant and the narrow scope of appreciation granted to the respondent state should have led to a thorough institutional and procedural review, but the applicant could not get such a review.”
The European Court of Human Rights’ ruling was largely symbolic, as it did not question World Athletics’ ruling and did not clear the way for Semenya to return to competition without taking the medication.
In Semenya’s new book, The Race to Be Myselfshe admitted that her career as the best athlete is over.
“I will not take the medication. This means that I will no longer be able to run in any World Athletics competition,” she said.
Semenya won gold at the 2012 London Olympics and again in Rio in 2016. She also picked up world titles in 2009, 2011 and 2017.
World Athletics introduced the DSD regulations to create a level playing field in women’s events ranging from 400m to one mile. Semenya was forced to switch to the 5,000 m event, which is a distance in which she could not reach the final in last year’s world championship in Eugene, Oregon, in the USA.
In March this year, the federation amended the rules. DSD athletes must now reduce their testosterone levels to less than 2.5 nanomol/ℓ, which is lower than the previous level of 5 nanomol/ℓ. The athletes must also stay below this threshold for two years.
World Athletics has also since removed the rule that DSD athletes can compete in restricted events, meaning that regulations now cover all distances, rather than those previously monitored.