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Caster Semenya wins European Court of Human Rights appeal over ‘discriminatory’ testosterone limit

<i>Cameron Spencer/Getty Images</i><br/>Caster Semenya  competes in the mixed relay race during the 2023 World Cross Country Championships at Mount Panorama on February 18.
Cameron Spencer/Getty Images
Caster Semenya competes in the mixed relay race during the 2023 World Cross Country Championships at Mount Panorama on February 18.

By Ben Morse, CNN

(CNN) — Caster Semenya, the South African Olympic champion runner, has won her appeal which she had submitted to the European Court of Human Rights (ECHR) to end “discriminatory” testosterone limits imposed on female athletes, the ECHR said on Tuesday.

Semenya is hyperandrogenous – meaning she has naturally high levels of testosterone – and has been fighting against rules introduced in 2019 by World Athletics – track and field’s governing body – which regulates levels of the hormone in female athletes.

In its ruling, the ECHR said there had been a “violation of the prohibition of discrimination taken together with the right to respect for private life as well as a violation of the right to an effective remedy.”

Semenya won the 800m gold medal at both the 2012 and 2016 Olympics Games but the new rules meant she would need to take testosterone-reducing medication in order to compete internationally over distances between 400m and one mile – something she has declined to do. She was unable to defend her 800m crown in Tokyo in 2021 because of the rule changes.

A three-time 800m world champion, Semenya lost an appeal to the Court of Arbitration for Sport in April 2019. In September 2020, she then lost an appeal made to Switzerland’s Federal Supreme Court but vowed to continue to “fight for the human rights of female athletes.”

Semenya submitted an appeal to the ECHR in February 2021, saying that, in its dismissal of the South African athlete’s appeal, Switzerland’s Federal Supreme Court “failed” in its obligations to uphold her human rights.

“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 (DSD),” said the ECHR in its ruling.

“It followed, particularly with regard to the high personal stakes involved for the applicant – namely, participating in athletics competitions at international level, and therefore practicing her profession – that Switzerland had overstepped the narrow margin of appreciation afforded to it in the present case, which concerned discrimination on grounds of sex and sexual characteristics requiring ‘very weighty reasons’ by way of justification.

“The high stakes of the case for the applicant and the narrow margin of appreciation afforded to the respondent State should have led to a thorough institutional and procedural review, but the applicant had not been able to obtain such a review. The Court also found that the domestic remedies available to the applicant could not be considered effective in the circumstances of the present case.”

In a statement sent to CNN, World Athletics said it “notes the judgment of the deeply divided Chamber of the European Court of Human Rights (ECHR).

“We remain of the view that the DSD [differences in sex development] 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,” it said.

“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.

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

Variations in people’s reproductive anatomy, chromosome patterns or other traits that may not align with typical binary definitions of female or male is what is defined as DSD.

It is difficult to estimate how many people have DSD traits – many live their entire lives without ever knowing they have one. Scientists estimate as many as one out of every 50 people is born with DSD traits.

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