The European Court of Human Rights in Strasbourg ruled today 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 female tests for having a very high testosterone level.
In their sentence, the European judges formally condemn Switzerland, which is where the Sports Arbitration Court (CAS) is based, which had rejected the arbitration that Semenya requested so that she would not be required to undergo hormonal treatment. to lower his testosterone level below the threshold set by the IAAF as a condition of allowing him to compete.
In the first place, they reproach the Swiss Justice for having washed its hands on the grounds that its power to examine this case was limitedsince the original decision had been made by the TAS, which had applied a federation regulation -a testosterone limit in women’s events- that seemed to it “suitable, necessary and proportionate” so that there would be sports equity.
In this regard, the European Court of Human Rights (ECHR) stresses that the South African middle-distance runner did not have the institutional and procedural guarantees enough in Switzerland to assert their claims of being discriminated against, which were “credible” and “well founded”.
In fact, The ECHR recalls that the CAS itself acknowledged its doubts about the regulations drawn up by the IAAF, which in practice forced it to undergo hormonal treatments with “significant” side effects. and that they also did not give him a total guarantee of allowing him to lower testosterone to a sufficient level.
Besides, 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” for the discrimination of women or intersex athletes in sports with regulations like that.
He also recalls that he has repeatedly insisted that “differences based solely on sex must be justified by ‘very strong considerations’, ‘compelling reasons’ or “particularly strong and compelling reasons”.
Therefore, the margin of appreciation of public authorities is “restricted” when they seek to apply a difference in treatment on the basis of a person’s sexual characteristics.
Definitely, with Semenya, Switzerland (and consequently the CAS and the IAAF) violated the article of the European Convention on Human Rights that prohibits discrimination.
As the athlete had not requested any compensation for material or moral damages, European judges have not set any compensation, but Switzerland will have to pay 60,000 euros for legal costs.
Beyond the merits of the matter, the ruling has consequences for the operation of the Sports Court to the extent that the ECtHR 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 constitutes a means of appeal on what the TAS may decide.
and that still recognizing 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 women, and not with XX, that of men.
World Athletics did not take long to answer the sentence
Hours later, World Athletics ruled on the ruling in favor of the South African athlete, confirming that they will maintain the current regulations for now:
“World Athletics takes note of the ruling of the deeply divided Chamber of the European Court of Human Rights (ECtHR). We continue to believe that the DSD regulations are a necessary, reasonable and proportionate means of protecting fair competition in the women’s category., as concluded by the Court of Arbitration for Sport and the Swiss Federal Court, after a detailed and expert evaluation of the evidence. The case was brought against the state of Switzerland, rather than World Athletics. We will contact the Swiss government about next steps and, given the strong dissenting opinions in the decision, we will encourage them to seek referral of the case to the ECtHR Grand Chamber for a final and final decision. Meanwhile, current DSD regulations will be maintainedapproved by the World Athletics Council in March 2023″, the international organization published on its website.