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11th Jul 2023

Caster Semenya wins court appeal challenging testosterone regulations for female athletes

Steve Hopkins

World Athletics is going to urge the Swiss government to challenge the decision

Olympic champion Caster Semenya was discriminated against by rules forcing her to lower her testosterone levels in order to compete, the European Court of Human Rights (ECHR) has found.

The South African, who had won two Olympics gold medals in the 800m and three World Championships, was born with differences of sexual development (DSD) and is not allowed to compete in any track events without taking testosterone-reducing drugs.

In a decision released on Tuesday, the ECHR ruled in favour of the 32-year-old in a case involving testosterone levels in female athletes.

Semenya has been in a long-running dispute with World Athletics since regulations requiring her to have hormone treatment were introduced by the governing body in 2018 and had failed twice to overturn the decision.

Her latest court fight was against the Swiss government for not protecting her rights and dates back to a Swiss Supreme Court ruling three years ago.

The ECHR found the Swiss government did not protect Semenya from being discriminated against when its Supreme Court refused to overturn a decision by the Court of Arbitration for Sport (Cas), which upheld the World Athletics rules.

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.”

The human rights court also found that World Athletics’ DSD regulations were “a source of discrimination” for Semenya “by the manner in which they were exercised and by their effects”.

Regulations were also “incompatible with the European Convention on Human Rights”, it found.

The decision, the BBC noted, may allow Semenya to now challenge the Swiss Supreme Court or Cas rulings.

World Athletics released a statement shortly after the decision was published, describing the ECHR chamber as “deeply divided” and saying it will urge the Swiss government to refer the case to the ECHR Grand Chamber for a “final and definitive decision”.

World Athletics wrote: “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 in the decision, we will be encouraging them to seek referral of the case to the ECHR Grand Chamber for a final and definitive decision.”

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

Under regulations introduced in 2018, athletes with DSD were only allowed to compete in track events between 400m and the mile if they reduced their testosterone levels.

However, in March World Athletics ruled that DSD athletes must now have hormone-suppressing treatment for six months before being eligible to compete in all events.

Semenya ran in the 5,000m at last year’s World Championships in Oregon but failed to qualify for the final. She is also a 1500m Commonwealth champion.

The runner has maintained that taking testosterone-reducing medication could endanger her health and that the ruling denied her and other athletes with DSD the right to rely on their natural abilities.

The ruling prevented Semenya from defending her 800m title at the Tokyo Olympics in 2021.

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