Why Caster Semenya’s Legal Victory Falls Short in Her Fight to Compete

Dispatches: Caster Semenya Won Her Case, But Not the Right to Compete

Court Ruling Is a Human Rights Victory

Last week, Caster Semenya, the South African Olympic runner, celebrated a significant victory when she won her discrimination case in the European Court of Human Rights (ECHR). However, despite this legal triumph, Semenya and numerous other women athletes may still face bans from competing in sports due to the regulations set by World Athletics. These regulations specifically target women with naturally occurring higher testosterone levels associated with Differences of Sex Development (DSD). In order to continue participating in sports, these women are required to undergo medically unnecessary interventions to lower their testosterone levels and meet an arbitrary standard of femininity.

The regulations were introduced in 2019 by sports governing bodies, who argued that they represented a departure from the previous 50 years of sex testing in women’s athletics. This sex testing, however, had long been criticized as humiliating, degrading, and discriminatory. While the new regulations aimed to address these concerns, they still subject women athletes to requirements that violate their rights in a range of ways.

Semenya initially challenged these regulations in the Court of Arbitration for Sport in 2019, but unfortunately lost her case. She then appealed to the highest court in Switzerland, the Federal Tribunal, which ultimately dismissed her case. Though the court acknowledged that the regulations violated Semenya’s human rights, it concluded that they couldn’t be struck down as inconsistent with Swiss public policy. The European Court of Human Rights has now overturned this decision, asserting that the Swiss Federal Tribunal failed to uphold human rights norms despite credible claims of discrimination.

Incompatible Regulations and Human Rights Norms

The 2019 regulations perpetuate the arbitrary scrutiny of women’s bodies, despite scientific disputes surrounding the parameters and impact of testosterone levels. Not only do these regulations violate women’s bodily integrity, freedom from cruel and degrading treatment, dignity, and non-discrimination, but they also reveal a troubling disregard for international human rights norms by sporting bodies that consider themselves exempt from such standards.

Semenya’s victory in the European Court of Human Rights is undoubtedly a technical one. While it allows her to continue pursuing her case, it does not provide her with an immediate opportunity to compete again, which is the very essence of her fight. World Athletics has indicated their intent to encourage the Swiss government to appeal the ECHR decision to the Grand Chamber of the European Court, further complicating the future of Semenya’s athletics career, as well as that of many other women athletes.

Compelling Compliance with Human Rights Law

Despite the uncertainty surrounding Semenya’s future in sports, her victory carries significant weight. It should serve as a powerful impetus for World Athletics and the Court of Arbitration for Sport to reevaluate and ensure that their actions comply with international human rights law and standards. The regulation of women’s athletics should not be at the expense of violating their fundamental rights and dignity.

It is essential for the international community to support the ongoing battle for equality in sports. Donations to organizations dedicated to upholding human rights can make a tangible impact in ending violations and saving lives around the world.

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