This article, written by Eleanor Drywood, Senior Lecturer in Law, in our Department of Law and Social Justice, was originally published in The Conversation:
Olympic athlete Caster Semenya has repeatedly come into conflict with competition rules set out by the athletics governing body, World Athletics (formerly known as the IAAF). These rules require athletes like Semenya, who has what is known as a difference of sexual development (DSD), to reduce their blood testosterone level when competing in a number of events. These rules have meant that Semenya has not been allowed to compete in her preferred events since 2019.
Semenya first brought legal action against these rules at the court of arbitration for sport (CAS), based in Switzerland. This challenge was rejected, as were several subsequent appeals.
Semenya has now had a legal victory at the European court of human rights, which found that the Swiss state violated her human rights in its handling of earlier cases. Four out of the court’s seven judges agreed that Switzlerand’s courts failed to consider Semenya’s human rights in sufficient depth when hearing her case.
This decision is an undoubted victory for Semenya, and is a landmark judgment as far as the relationship between sport and human rights is concerned. But it is important to be clear on the precise way in which the court found a violation of her human rights – and why it won’t necessarily result in a change to the rules on DSD athletes.
Cases before the human rights court are brought against states who have signed the European convention on human rights. It is not possible to bring a case against a private body such as a sports organisation. This means that the World Athletics regulations – which were updated earlier this year to make it even harder for DSD athletes to compete – still stand. There is no immediate prospect of Semenya returning to international athletics.
A long legal battle
Doctors measure testosterone in nanomoles per litre (nmol/l). In 2018 the IAAF ruled that athletes with certain DSDs would have to maintain a blood testosterone level of below five nmol/l for a continuous period of at least six months before competing in a number of restricted events. This could be done by taking medication such as oral contraceptives, which Semenya was reluctant to do because of their side effects.
Semenya challenged the IAAF rules before the court of arbitration for sport. In 2019, her challenge was refused. The court ruled that although the regulations were, in principle, discriminatory, they could be justified on the basis that they were a “necessary, reasonable and proportionate” way to ensure fair competition.
Given the CAS sits in Lausanne, Switzerland, Semenya’s first avenue for appeal was the Swiss Federal Tribunal. Her case was rejected, leading her to file a further appeal claiming that her rights under the European convention on human rights had been violated.
This is the claim that has now been upheld. The court ruled that her right to non-discrimination in respect of her private and family life, as well as her right to an effective legal remedy, had been violated.
The court did not reach this decision on the basis of the content of the regulations, however, as the IAAF (now World Athletics) is a private organisation, and not directly bound by human rights treaties. Instead, the court said that the CAS and the Swiss federal tribunal had not looked in sufficient depth at the convention on human rights when considering the IAAF’s justification for the regulations. This meant that the Swiss state had not adequately safeguarded her human rights through the legal process open to her.
If Semenya wishes to establish that the regulations themselves violate her human rights, she will probably need to go back to court once again. She would, however, be armed with a judgment stipulating that her rights under the European convention on human rights must be fully considered.
Changing the rules of sport
Historically, sports governing bodies have been very attached to the idea that they are autonomous and, therefore, fall outside the scrutiny of external legal norms.
However, UN principles state that businesses have a corporate responsibility to respect human rights. This applies to private bodies such as sports organisations. This decision from the human rights court suggests that courts in signatory states must consider human rights when reviewing disputes between athletes and sports governing bodies.
This should, in theory, mean that sports organisations will take more care to uphold human rights, mindful that subsequent legal challenges are likely to measure their activities against the European convention. Alternatively, sports bodies may well continue to turn a blind eye to their obligation to respect the convention and further cases will follow.
In 2019, the CAS praised Semenya for her “grace and fortitude” in this legal process. Her tenacity has been rewarded with a judgment that may well prove to be a pivotal point in the protection of athletes’ human rights. That would be some legacy, though probably not the one Semenya dreamt of.