Olympic champion Caster Semenya wins appeal against testosterone rules at human rights court

Amid her bid to be allowed to run again without restriction and go for another gold medal at the Paris Olympics next year, Tuesday’s ruling, while groundbreaking, did not immediately result in the rules being overturned.

This could take years.

The South African athlete began challenging testosterone rules in 2018.

It has gone from the Swiss-based Court of Arbitration for Sport to the Swiss Supreme Court and now the European Court of Rights. A 4-3 decision in favor of Semenya by a panel of human rights judges opened the way for the Swiss Supreme Court to reconsider its decision.

This may result in the case being returned to the CAS in Lausanne. Only then can the controversial rules imposed by world athletics be removed.
The 32-year-old Semenya, who has been banned by rules from running her favorite 800m since 2019 and lost four years of her career at its peak, has just 13 months until Paris.

In a statement shortly after the European Court of Rights’ decision was published, World Athletics showed no sign of budging and said its rules would “remain in place”. “We continue to believe that … the regulations are a necessary, reasonable and proportionate means of protecting fair competition in the female category as both the Court of Arbitration for Sport and the Swiss Federal Court have found,” said World Athletics.

World Athletics also said it would “encourage” the Swiss government to appeal the ruling. Switzerland was the defendant in the case because Semenya was contesting her last legal loss in the Swiss Supreme Court. The Swiss government has three months to appeal.

The Swiss government also ordered Semenya to pay costs and expenses of 60,000 euros ($66,000).

There was no immediate reaction from Semenya or her South African lawyers.

While Semenya has been at the center of the highly emotional issue of gender eligibility in sports and is a key figure in challenging the rules, she’s not the only athlete affected. At least three other Olympic medalists have also been affected by rules that place limits on the level of natural testosterone for female athletes if they wish to compete. World Athletics says there are “a number” of other elite athletes who are subject to the regulations.

There are no limits to testosterone for male athletes.

Semenya’s case differs from the controversy surrounding transgender women who transitioned from male to female, in that they were allowed to compete in sports, although there was an intersection between them.

Identified as female at birth, Semenya was raised as a girl and has been legally identified as female for her entire life. She has one of a number of conditions known as differences in sexual development, or DSDs, that cause testosterone to be naturally elevated in the typical male range.

Semenya says her natural testosterone should be considered a genetic gift in the same way as a basketball player’s height or a swimmer’s long arms.

While the tracking authorities cannot challenge Semenya’s legal sex, they say her condition includes her having a typical male XY chromosome pattern and physical traits that make her a “biological male”, an assertion that has angered Semenya. World Athletics says Semenya’s testosterone levels give her an athletic edge comparable to a man who competes in women’s events and there should be rules in place to address this.

To do this, Track has implemented rules since 2019 that require athletes like Semenya to artificially reduce testosterone below a set mark, which is measured by the amount of testosterone recorded in their blood. They can do this by taking daily birth control pills, taking hormone blocking injections, or undergoing surgery according to the rules. If athletes choose one of the first two options, they will actually need to do so throughout their careers to remain eligible to compete regularly.

Semenya denounced the regulations, and has refused to follow them since 2019, saying they discriminated against her because of her condition.

On Tuesday, the European Court of Human Rights agreed. It also found for Semenya, in another point of its appeal, that it had not received “effective remedy” against this discrimination when the Court of Arbitration for Sport and the Swiss Supreme Court rejected its appeal.

The court said there were “serious questions about the validity” of the testosterone rules, including any side effects of hormone therapy for athletes.
They would have to succumb to the difficulties of staying within the rules by trying to control their natural hormone levels, and having “no evidence” that their naturally elevated testosterone gave them an advantage anyway.

That last point struck at the heart of the regulations, which the world athletics team has always said were about dealing with the unfair sporting advantage Semenya had over other women.

The European Court of Rights also found that Semenya’s second legal appeal against the rules in the Swiss Supreme Court should have led to a “comprehensive institutional and procedural review” of the rules, but this did not happen.

The rules have become even stricter since Semenya took her case to the European Court of Rights, with World Athletics declaring in March that athletes would have to lower their testosterone levels to a lower level. The updated regulations also apply to every event and not just the preferred range in Semenya between 400m and 1 mile, which they did previously.

Semenya won gold in the 800m at the 2012 and 2016 Olympics but was prevented from defending her title at the 2021 Tokyo Olympics due to the regulations.