The dispute between Caster Semenya and World Athletics (formerly the IAAF), has received significant media attention over the last few years.
In 2018, World Athletics enacted controversial regulations which applied to athletes deemed as having a ‘Difference of Sexual Developments’ (the “DSD Regulations”). Ms Semenya was affected by these regulations and took the matter to the Court of Arbitration for Sport (CAS), which found in favour of the World Athletics. Our previous article provides a more detailed summary of the background to the dispute.
Ms Semenya appealed the decision of the CAS (which sits in Lausanne) to the Federal Supreme Court of Switzerland. The Federal Court dismissed the appeal, finding that the regulations were an appropriate, necessary, and proportionate means of achieving the legitimate aims of fairness in sport.
Ms Semenya then referred the matter to the European Court of Human Rights (ECtHR).
Jurisdiction of the Court
The referral gave rise to questions about the ECtHR’s jurisdiction. The DSD Regulations at the heart of the dispute were introduced by World Athletics and endorsed by CAS, both of which are non-state actors.
However, the ECtHR concluded that it did have jurisdiction to hear the application, noting that, if the application was rejected on these grounds, it would “risk barring access to an entire category of individuals, that of professional sportspeople, which would not be in keeping with the spirit, object, and purpose of the Convention”.
The ECtHR found that there had been a violation of the European Convention of Human Rights.
It concluded that a number of issues with the DSD Regulations had been identified but not sufficiently addressed by the CAS decision and cast doubt on the scientific and legal basis of the Regulations, specifically that:
- The side effects of the hormone treatment mandated by the DSD regulations were “significant”.
- Even if female athletes carefully followed the prescribed hormone treatment, they may still be unable to comply with the DSD requirements.
- There was “sparse” evidence that athletes with Ms Semenya’s condition had any actual significant athletic advantage in the relevant circumstances.
Importantly, and as is often the case in a sporting context, the only route through which Ms Semenya could challenge the DSD regulations was by arbitration through CAS. In order to take part in the testing required to compete, Ms Semenya was required to sign contracts which included a compulsory arbitration clause. Such clauses are fairly common in a sporting context, where it is common to require disputes to be referred to CAS.
The ECtHR held that CAS had not applied the provisions of the Convention and that this left serious questions about the validity of the DSD Regulations, primarily in relation to the three issues noted above. It found that the subsequent review by the Federal Supreme Court of Switzerland had been limited and did not respond to the concerns expressed by the CAS in a manner compatible with the requirements of the Convention.
This meant that Ms Semenya had not received the sufficient protection of procedural and institutional safeguards, and there had been a violation of the Article 14 prohibition of discrimination, taken together with the Article 8 right to respect for private and family life.
The ECtHR concluded that that there had been a violation of Article 13 of the Convention, which guarantees an individual the right to an effective remedy for any breaches of the Convention.
A statement from Ms Semenya’s representatives welcomed the verdict and added that “justice has spoken but this is only beginning”.
World Athletics have acknowledged the ruling but do not plan to alter the DSD Regulations which remain in place and, noting that the case was raised against the state of Switzerland, that they are not themselves bound by the decision of the court.
World Athletics have stated that they will be encouraging Switzerland to appeal the decision to the Grand Chamber of the ECtHR. Appeals must be requested within three months of the judgment, and early indications in the press suggest that Switzerland intends to challenge this decision.
In the meantime, Ms Semenya remains unable to compete in the female category in international competitions, unless she complies with the DSD Regulations which require that she, among other things, engage in a course of hormone-suppressing medicine.
This case looks set to continue to divide opinion in the world of athletics and indeed the world at large.