Caster Semenya Wins Measured Victory at European Court of Human Rights

Olympic champion runner Caster Semenya has won a case at the European Court of Human Rights, which ruled Tuesday that she was discriminated against by World Athletics rules that called for her to reduce her naturally high testosterone level in order to be eligible for major events.

However, the decision left the rules in place, the Associated Press reports, and it may take years for a challenge to succeed in bringing them down. The rules are imposed only on female athletes.

The ruling came in an appeal of a case in which Switzerland’s Supreme Court upheld the World Athletics regulations. The ECHR “merely opened the way” for that court to reconsider the matter, according to the AP. Whatever the Swiss high court decides could then send the case to the Court of Arbitration for Sport, also based in Switzerland, which has authority to strike down the rules. But that court has turned down an appeal from Semenya previously.

Semenya is not transgender. She is a cisgender woman with a naturally occurring high level of testosterone, a condition known as hyperandrogenism, and other so-called differences in sex development. “Semenya says her elevated testosterone should simply be considered a genetic gift, and critics of the rules have compared it to a basketballer’s height or a swimmer’s long arms,” the AP notes.

But World Athletics, the governing body for track and field, says this gives Semenya and other women with similar conditions an unfair advantage comparable to that of a man competing against women. It has enforced rules since 2019 requiring women athletes with high testosterone to reduce it to a certain level, which can be done through surgery, daily oral contraceptive use, or hormone blockers. Athletes using one of the latter two options would have to follow the regimen throughout their careers.

Semenya has refused to adhere to the rules and therefore has been ineligible to compete in her favored event, the 800-meter race, since 2019. She has been fighting the regulations in court since 2018. Now 32, “she has lost four years of her career at her peak,” the AP reports. The rules were also tightened after 2019, setting the required testosterone level even lower and applying the restriction to all track events rather than just certain ones.

She had won the gold medal in the 800-meter at the Olympics in 2012 and 2016. She has been hoping to compete in the 2024 Olympics, to be held in Paris, but there may be no decision on the rules before then.

In the 4-3 decision finding Semenya had suffered discrimination because of her condition, the ECHR said there were “serious questions as to the validity” of the rules, concerns about the complications of treatment to suppress testosterone and whether the treatment would remain effective, and “lack of evidence” that high testosterone created an unfair advantage.

Semenya’s legal team praised the ruling. “Caster has never given up her fight to be allowed to compete and run free,” her lawyers said in a statement, according to the AP. “This important personal win for her is also a wider victory for elite athletes around the world. It means that sporting governance bodies around the world must finally recognize that human rights law and norms apply to the athletes they regulate.”

The government of South Africa, where Semenya is from, also lauded the ruling, saying officials there were “delighted.”

World Athletics leaders said they stand by the rules and will encourage the Swiss government to appeal. The case was filed against the government rather than World Athletics.