Caster Semenya, a South African Olympic runner, won her discrimination case in the European Court of Human Rights (ECHR) last week. Yet paradoxically, Semenya and many other women athletes may still be banned from competing in sports under World Athletics regulations.
Under these regulations, promulgated by the sports governing body regulating track and field, women like Semenya, who have naturally occurring higher testosterone levels associated with Differences of Sex Development (DSD), are barred from competing – unless they subject themselves to medically unnecessary interventions to reduce their testosterone levels and conform to an arbitrary and subjective standard of femininity.
These regulations came into effect in 2019. Sports governing bodies argued that the regulations broke from the past 50 years of sex testing women athletes, a practice that was humiliating, degrading and discriminatory. However, the revised regulations still subject women athletes to sex eligibility criteria that retain these negative, rights-abusing consequences.
Semenya challenged the new regulations in the Court of Arbitration for Sport in April 2019, and lost. She then appealed to Switzerland’s highest court, the Federal Tribunal, which dismissed the case on grounds that sports regulations violating women’s rights cannot be struck down as inconsistent with Swiss public policy, even though the court concluded the regulations violated Semenya’s human rights.
As Human Rights Watch and experts argued in an amicus brief submitted to the European court, the 2019 regulations perpetuate the arbitrary scrutiny of women’s bodies in ways that are degrading and invasive of privacy, on grounds that are scientifically contested. Such regulations are incompatible with respect for women’s rights to bodily integrity, freedom from cruel, inhuman, and degrading treatment, dignity, and non-discrimination.
That is at the heart of the matter.
International sporting bodies set regulations with scant regard for international human rights norms, as if they are exempt from human rights standards. The European court decision debunks that, finding that the Swiss Federal Tribunal had ‘failed’ to uphold human rights norms despite ‘credible claims of discrimination’.
Semenya’s victory is in some sense a technical one. It enables Semenya to pursue her case, but without any immediate prospect of being able to compete again – which is the point of her case. In a statement, World Athletics indicated they will encourage the Swiss government to appeal the decision to the Grand Chamber of the European Court. The future of Semenya’s athletics career – and that of many other women athletes – hangs in the balance.
Still, Caster has won a significant victory that ultimately should compel World Athletics and the Court of Arbitration for Sport to ensure that their actions comply with international human rights law and standards.