World Athletics assert DSD rules despite European Court of Human Rights ruling in favour of Olympian Caster Semenya

World Athletics have issued a statement affirming its rules concerning female athletes with differences in sex development (DSD) after the European Court of Human Rights (ECHR) ruled that South Africa’s two-time 800m Olympic champion Caster Semenya was discriminated against in her legal battle against the governing body’s DSD regulations.

CASTER SEMENYA

The 32 years old middle-distance runner has a medical condition known as Hyperandrogenism, meaning her body naturally produces higher levels of testosterone than women without the condition.

The DSD regulations, which came into effect in 2019 and initially applied to women’s events from 400m through to a mile, require athletes like Semenya to lower their testosterone levels.

DOUBLE OLYMPIC GOLD

Semenya won two Olympic gold medals in the women’s 800m at London 2012 and then Rio 2016.

But since 2019, she has not been eligible to compete at her favoured distance because she would have to take hormone-suppressing drugs to be allowed to participate.

LEGAL PROCEEDINGS

Semenya had made two unsuccessful legal attempts to overturn the regulations at the Swiss Federal Court and the Lausanne-based Court of Arbitration for Sport, which insisted that World Athletics’ rules were necessary for fair competition.

Then she lodged an appeal in February 2021 at Europe’s top human rights court, asking that the Strasbourg court find that “Switzerland has failed in its positive obligations to protect her against the violation of her rights.”

The ECHR ruled on Tuesday, by a majority of four votes to three, that Semenya’s rights had been violated by Switzerland.

ECHR JUDGEMENT

The ECHR ruling found the World Athletics’ DSD regulations were “a source of discrimination” for Semenya “by the manner in which they were exercised and by their effects,” and the regulations were “incompatible with the European Convention on Human Rights.”

The ECHR found the violation of Article 14 of the European Convention on Human Rights regarding the “prohibition of discrimination”, taken together with Article 8 “right to respect for private life” and Article 13 “right to an effective remedy”. It said the CAS ruling “had not applied the provisions of the Convention and had left open serious questions as to the validity of the DSD Regulations“.

An ECHR statement read: “The court found in particular that the applicant had not been afforded sufficient institutional and procedural safeguards in Switzerland to allow her 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 of sex development.”

“It followed, particularly with regard to the high personal stakes involved for the applicant – namely, participating in athletics competitions at an international level, and therefore practising her profession – that Switzerland had overstepped the narrow margin of appreciation afforded to it in the present case, which concerned discrimination on grounds of sex and sexual characteristics requiring ‘very weighty reasons’ by way of justification.

“The high stakes of the case for the applicant and the narrow margin of appreciation afforded to the respondent State should have led to a thorough institutional and procedural review, but the applicant had not been able to obtain such a review.

“The Court also found that the domestic remedies available to the applicant could not be considered effective in the circumstances of the present case.”

POSSIBLE COURT CHALLENGE

The ECHR decision may allow Semenya to challenge the Swiss Supreme Court or CAS rulings.

WORLD ATHLETICS STATEMENT

World Athletics acknowledged the ECHR’s final decision but emphasised that its rules are lawful and necessary to ensure fair and equal competition terms for female athletes and said it will ask the Swiss government to refer the case to the ECHR Grand Chamber for a “final and definitive decision“:

“World Athletics notes the judgment of the deeply divided Chamber of the European Court of Human Rights (ECHR).

“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 on the decision, we will be encouraging them to seek referral of the case to the ECHR Grand Chamber for a final and definitive decision.

“In the meantime, the current DSD regulations, approved by the World Athletics Council in March 2023, will remain in place” – the statement read.

OTHER ATHLETES WITH DSD

Another two high-profile female athletes with the same condition are Namibia’s Christine Mboma and Beatrice Masilingi, who both missed out on performing in their preferred women’s 400m distance event at Tokyo 2020 due to the DSD rules.

Both competed in the 200m instead, with Mboma earning a silver medal and Masilingi placing sixth.

Further rule changes were introduced in March, like reducing the amount of blood testosterone permitted for athletes with DSD, and extending the provisions to all track and field events have ruled both athletes out of this year’s World Championships, due to open in Budapest on August 19.

An interim ruling allowed athletes competing in previously unrestricted events to compete if they suppress testosterone levels below 2.5 nanomoles per litre for a period of six months minimum, but this left insufficient time for Mboma or Masilingi to participate in the Hungarian capital.

HEALTH RISKS? 

Caster has argued that taking testosterone-reducing medication could endanger her health and that the DSD regulations are denying her and other athletes with DSD the right to rely on their natural abilities, because of it she could not defend her 800m title at the Tokyo Olympics, which took place a year later than planned in 2021.

Semenya, who legally identified as female since birth, said she should be able to compete in women’s events even if her testosterone levels are higher than her competitors 

The three-time world champion in the 800m, had tried relaunching her career by running longer distances. She missed the qualifying mark for the women’s 5,000m at Tokyo 2020, then at the World Athletics Championships in Oregon last year she failed to progress through her heat in the 5,000m.

Credit: AIPS Media