The European Court of Human Rights in Strasbourg ruled this Tuesday in favor of the South African athlete Caster Semenya, who considered herself discriminated against as a woman after the International Athletics Federation (IAAF) denied her participation in certain women’s events for having a very high testosterone level. high.
In their sentence, the European judges formally condemn Switzerland, which is where the Sports Arbitration Court (CAS) is based, which had rejected the arbitration requested by Semenya so that she would not be required to undergo hormonal treatment that would reduce the level of testosterone below the threshold that the IAAF had set for him as a condition of allowing him to compete.
In the first place, they reproach the Swiss Justice for having washed its hands of it, arguing that its power to examine this case was limited, since the original decision had been made by the TAS, which had applied a federal regulation – a limit of testosterone in women’s tests – which seemed “suitable, necessary and proportionate” for there to be sports equity.
In this regard, the European Court of Human Rights (ECHR) stresses that the South African middle-distance runner did not have sufficient institutional and procedural guarantees in Switzerland to assert her arguments of being discriminated against, which were “credible” and “well-founded”. .
In fact, the ECtHR recalls that the TAS itself acknowledged its doubts about the regulations drawn up by the IAAF, which in practice forced him to undergo hormonal treatments with “significant” side effects and also did not give him a total guarantee of allowing him to lower the testosterone at a sufficient level.
In addition, it notes that in recent reports, competent human rights bodies of the Council of Europe (to which the Strasbourg Court belongs) have emphasized their “serious concerns” about discrimination against women or intersex athletes in sport. with rules like that.
It also recalls that it has repeatedly insisted that “differences based exclusively on sex must be justified by ‘very strong considerations’, ‘compelling reasons’ or ‘particularly strong and compelling reasons'”.
For this reason, the margin of appreciation of the public powers is “restricted” when they try to apply a difference in treatment based on the sexual characteristics of a person.
In short, with Semenya, Switzerland (and consequently the CAS and the IAAF) violated the article of the European Convention on Human Rights that prohibits discrimination. Since the athlete had not requested any compensation for material or moral damages, the European judges have not set any compensation, but Switzerland will have to pay her 60,000 euros for legal costs.
Beyond the merits of the matter, the judgment has consequences for the operation of the Sports Court to the extent that the ECHR makes it very clear that it is competent in matters such as this to guarantee respect for the European Convention on Human Rights, and therefore which constitutes a means of appeal on what the TAS can decide. And this even while acknowledging the advantages of having a centralized system for litigation in the sports field at an international level.
At the origin of this case is Semenya’s refusal to submit to the IAAF regulations that forced her to undergo hormonal treatment to lower her testosterone level, a rule that applies only to people with an XY genetic system, corresponding to the women, and not with XX, that of men.