Caster Semenya found to have been discriminated against in testosterone case

Semenya won Olympic gold over 800 metres in 2012 and 2016.

The European Court of Human Rights found athlete Caster Semenya had been discriminated against (Martin Rickett/PA) (PA Archive)

Caster Semenya was discriminated against by rules which forced her to lower her testosterone levels in order to continue competing, according to a judgement from the European Court of Human Rights.

The 32-year-old, a two-time 800 metres Olympic champion, was legally identified as female at birth but has a condition which means her body naturally produces higher levels of testosterone than women without the condition.

She has been unable to compete at her favoured distance since 2019, following the introduction of limits on testosterone levels for female athletes which would have forced her to use medication.

Previous legal challenges to the Court of Arbitration for Sport and the Swiss Federal Supreme Court were rejected, but the ECHR found her human rights had been violated.

A release issued by the court stated: “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).”

A legal summary of the case said Article 14 of the European Convention on Human Rights, which relates to discrimination, had been violated, along with Article 13 which related to the absence of effective remedies to tackle that discrimination.

The release on the judgement said the ECHR chamber was a majority decision, with four of the seven representatives finding Semenya’s rights under Articles 13 and 14 of the European Convention on Human Rights had been violated.

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.

World Athletics

The chamber judgement is not final, and can be referred to a Grand Chamber of the court for further consideration if a request is made.

A statement from World Athletics read: “World Athletics notes the judgement of the deeply divided Chamber of the European Court of Human Rights (ECHR).

“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.

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