By: Garrison Funk
Impunity Watch News Staff Writer
STRASBOURG, France – On November 6, 2023, the Grand Chamber of the European Court of Human Rights (ECHR) accepted the referral of Semenya v. Switzerland, a case challenging the decision of the Swiss Federal Tribunal’s refusal to overturn regulations issued by World Athletics restricting eligibility for women’s athletic competitions.
The case, filed by two-time Olympic gold medalist Caster Semenya, challenges the 2018 regulations instituted by World Athletics which limit hormone levels in female athletes for certain athletic events.
Born with differences of sexual development (DSD), Semenya has naturally elevated levels of testosterone. Under the World Athletics regulations, Semenya and all other female athletes with DSD would be required to submit to hormone-suppressing treatment for six months in order to compete in female track events between 400m and the mile.
This is not World Athletics’ first attempt to institute hormonal restrictions on women’s athletics. World Athletics (formerly the International Association of Athletics Federations) first introduced “hyperandrogenism” regulations in 2011, which instituted a ban on any female athlete who’s androgen levels fell within the male range.
These regulations were challenged by Dutee Chand in 2014 after World Athletics deemed her ineligible to compete. The Court of Arbitration for Sport (CAS) partially upheld Chand’s appeal and subsequently suspended the World Athletics regulations.
Following this decision, World Athletics withdrew the regulations. In 2018, it instituted the “Athlete with Differences of Sexual Development” regulations at issue which require any female athlete with DSD to reduce her blood testosterone to below five nmol/L for six months prior to competition and maintain these levels in order to compete.
In compliance with her arbitration clause, Semenya originally filed her case with CAS on June 18, 2018. The CAS found the World Athletics regulations to be discriminatory but held that such discrimination was a necessary, reasonable, and proportionate means of upholding the integrity of female athletics. Semenya’s subsequent appeal to the Swiss Federal Tribunal (SFT) was dismissed.
Following dismissal by the SFT, Semenya filed the present case against Switzerland in the ECHR, alleging violations of Article 14 in conjunction with Article 8 for failing to provide sufficient institutional and procedural protections against discrimination and Article 13 for breaching her right to an effective remedy.
The ECHR ruled in Semenya’s favor on July 11, 2023, and the Swiss government subsequently requested the matter be referred to the Grand Chamber for reconsideration. The grant of referral was approved on November 6, 2023.
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