Because of her naturally high testosterone levels, the court ruled that she had been discriminated against by the necessity that she lower them artificially in order to compete in women’s races.
Despite the fact that she was born legally female and has identified as such her whole life, she claimed that World Athletics‘ regulations prevented her from competing freely in women’s sports.
In 2018, the regulating body passed regulations mandating that she undergo hormone therapy. Semenya’s attempts to appeal the ruling in court have failed on two separate occasions.
The complaint before the ECHR, however, was not filed against sports organisations or DSD regulations, but rather against the government of Switzerland for failing to defend Semenya’s rights following a 2013 judgement by the Swiss Supreme Court.
The European Court of Human Rights (ECHR) ruled in a long verdict released on Tuesday that the Swiss government failed to safeguard Semenya from discrimination when it declined to reverse a decision by the Court of Arbitration for Sport (Cas) that maintained the World Athletics regulations.
Cas has previously found that testosterone limits for athletes like Semenya, were discriminatory; nonetheless, the discrimination was “necessary, reasonable, and proportionate” to maintain “the integrity of female athletics.”
Although the ruling appears to support Semenya’s long-held claim that she has been discriminated against, it is unclear whether or not the present limits on athletes with Down syndrome will be lifted as a result of the ruling.
World Athletics is doubling down on its stance to defend equal competition for women and supports a legal appeal against the ECHR ruling in Swiss courts.
An appeal must be submitted within three months of the decision. Unless Semenya takes medication to suppress her testosterone or World Athletics is forced to change its position on DSD athletes, it is unclear how this could happen, leaving Semenya in a similar position to before the ECHR ruling in terms of competing, if that is what she wants.
According to a statement released by the European Court of Human Rights, Semenya “had not been afforded sufficient institutional and procedural safeguards in Switzerland” to “have her complaints examined effectively, especially since her complaints concerned substantiated and credible claims of discrimination as a result of her increased testosterone level caused by differences in sex development.”
According to the EHCR’s decision, World Athletics’ DSD restrictions were “incompatible with the European Convention on Human Rights” and “a source of discrimination” for Semenya “by the manner in which they were exercised and by their effects.”
The ECHR panel’s 4-3 finding in Semenya’s favour might pave the way for her to appeal the Swiss Supreme Court’s and the Cas’s decisions.
World Athletics has stated that the ECHR chamber’s judgement is “deeply divided,” and that it would petition the Swiss government to bring the matter to the ECHR Grand Chamber 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 Swiss Federal Tribunal both found, after a detailed and expert assessment of the evidence.
“We will liaise 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.”
Athletics South Africa issued a statement after the judgement saying the decision “vindicated” their position that the current DSD standards were “ill-conceived” and that they would seek legal advice about the implications for Semenya’s possible future involvement in athletics.
You may recall that in Oregon at last year’s World Championships, Semenya competed in the 5,000-meter race but did not make it to the final.
She claims the verdict deprived her and other athletes with Down syndrome the chance to depend on their natural skills, as using testosterone-reducing medicine might be harmful to their health.
As a result of the verdict, she was unable to defend her 800m gold in the 2021 Olympics in Tokyo.
Semenya has stated she should be allowed to compete in women’s competitions despite having greater testosterone levels than her oppoents since she has always been legally designated as a girl.
She told BBC Sport in 2019 that she felt “crucified” by the rules instituted by World Athletics (then the IAAF) but that she would “never stop fighting” against them.
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