The extraordinary career of Caster Semenya took another twist on Tuesday when the European court of human rights (ECHR) ruled she had been let down by the Swiss legal system in her battle against limits on testosterone levels for female athletes.
Semenya, who won gold in the 800m at the 2012 and 2016 Olympics, was born with differences in sex development (DSD), meaning her body naturally produces higher levels of testosterone than women without the condition. She has not been allowed to compete in elite events between 400m and a mile since 2018, when World Athletics, the sport’s governing body, implemented a new policy for DSD athletes that compelled them to reduce their testosterone levels to less than 5 nmol/L in order to race across those distances. DSDs are in the male range of 7.7-29.4 nmol/L.
The policy was upheld by the court of arbitration for sport (Cas) the following year, and then by a Swiss federal tribunal in 2020, leading to the 32-year-old South African taking her long-running legal battle against the regulations to the ECHR.
The ECHR ruled on Tuesday that Switzerland had not afforded Semenya “sufficient institutional and procedural safeguards” to allow her to have her complaints examined effectively. The “high stakes” involved for Semenya “should have led to a thorough institutional and procedural review”, the court said.
Semenya had been unable to obtain such a review, therefore the ECHR was “unable to determine whether the DSD regulations, as applied in the applicant’s case, could be considered a measure that was objective and proportionate to the aim pursued of protecting fair competition for female athletes”. The court said Semenya complaints of discrimination as a result of World Athletics’ DSD regulations were “substantiated and credible”, but that its judgment does not bring into question the governing body’s policy.
The seven ECHR judges found by a majority of four to three that Semenya’s rights under Article 14 of the European convention on human rights, which concerns discrimination, had been violated. The Swiss federal tribunal was also found to have violated Article 13 in not providing Semenya effective remedy against discrimination.
This is a major W but also makes me think about the fact women assigned male at birth have to suppress their testosterone levels to such extreme amounts if they want to compete in women's sports, yet women assigned female at birth can compete even if they have abnormally high natural t-levels.
Only women assigned female at birth with XX chromosomes can compete with abnormally high natural free testosterone levels, even if they have a disorder of sexual development that causes increased testosterone production. Women assigned female at birth with XY chromosomes, like Semenya and a few other athletes now, have to limit their testosterone levels.