Double Olympic 800 metres champion Caster Semenya has taken a potentially small step towards competing at Paris 2024 but there is a long way to go in her battle against World Athletics regulations that have kept her largely idle for four years.
South African Semenya, an athlete with differences in sexual development (DSDs), has been involved in a legal battle over regulations that prohibit her from running unless she medically lowers her natural testosterone levels.
The 32-year-old middle-distance runner first took her fight to the Court of Arbitration for Sport (Cas), sport’s highest court, and later the Swiss Federal Tribunal (SFT).
Semenya lost both cases, although when Cas ruled against her four years ago it accepted that it meant she was being discriminated against but its judges ruled 2-1 that “such discrimination is a necessary, reasonable and proportionate means of achieving World Athletics’ aim of preserving the integrity of female athletics in the Restricted Events”.
However, Tuesday’s judgment by the European Court of Human Rights (ECHR), delivered in her favour by a slender margin of four to three, states that she was in fact discriminated against by the SFT, who did not consider respect for her private life and the right to an effective remedy.
It does not set aside the World Athletics regulations and will likely be challenged by the Swiss government during a three-month period following the judgment when it is non-binding and open to review, which could be a long process.
In fact, Semenya’s path back to competition remains arguably as tough as it was before Tuesday’s judgment – a moral victory, but not one that moves her significantly closer to the Olympics.
That being said, Seema Patel, associate professor in law and gender discrimination in Sport at Nottingham Trent University, said it was “monumental” nonetheless.
“This is a critical moment for inclusion, gender identity, human rights and anti-discrimination. It signals the value of human rights in sport and the need to balance competing interests fairly and responsibly,” Patel told Reuters.
“Since our introduction to Semenya in 2009, the landscape has shifted and our understanding of gender, inclusion, human rights and fair competition has progressed. Yet there is still more to be done and the judgment will contribute to the multidisciplinary body of research emerging in this field.”
Patel added that it shows the ECHR may intervene in sport discrimination matters. Cas was once the final arbiter in such matters but now there are several further steps aggrieved parties can take.
So Semenya may find that the end of the legal process comes too late to salvage her career but could assist others.
World Athletics maintains the regulations are the best remedy to ensure the playing field is level and there is no undue advantage for DSD athletes. They point out that the ECHR chamber were “deeply divided” in their judgment.
“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,” they said.
The regulations, initially applied to races of 400 metres to a mile, were expanded in March to include all female track events, preventing Semenya from relaunching her career by running longer distances.
