Caster Semenya's victory at the ECHR: A landmark case for athletes' human rights

On 11 July 2023, the European Court of Human Rights (“ECHR”) found that the Court of Arbitration for Sport (“CAS”) and the Swiss Federal Tribunal had violated South African middle-distance track star, Caster Semenya’s human rights in their handling of Semenya’s appeal against the World Athletics Eligibility Regulations for the Female Classification (Athletes with Differences of Sexual Development) (“2018 DSD Regulations”). The case throws into question the legality of the 2018 DSD Regulations, and updated versions of the 2018 DSD Regulations which are discussed below.

However, equally importantly, this decision will have wider applicability for athletes and sporting organisations as it demonstrates the relevance of human rights principles, especially around non-discrimination and the right to a private life, for tribunals and courts making determinations on sports law cases. Specifically, it will be relevant to all athletes and sports organisations that have agreements, rules or policies which are subject to arbitration by CAS.

The decision by the ECHR can be better understood in its context, including the history of how World Athletics has regulated the participation of athletes with differences of sexual development (“DSDs”) and more broadly how it has regulated the participation of athletes wanting to compete in the female category at an international level.

This article briefly discusses the history and application of the 2018 DSD Regulations (which as discussed below, were updated in 2023 to operate in an even harsher manner than the 2018 DSD Regulations). The article then analyses the decision of the ECHR and what it means for female and intersex athletes wishing to compete in the female category in international athletics competitions. It will consider the broader implications for athletes wishing to appeal CAS decisions on the basis of breaches of human rights decisions and the potential implications for decision-making in a sports context.

Article outline:

• Recent history of the regulation of female and intersex athletes with differences of sexual development
  • Hyperandrogenism Regulations
  • Introduction of the 2018 DSD Regulations
  • Proceedings before CAS
• The ECHR Decision
  • Question of Jurisdiction of the ECHR
  • Substantive Decision
• Appeal rights from ECHR Decision

Recent history of the regulation of female and intersex athletes with differences of sexual development

There is a long history in sport and athletics of regulating the involvement of women in athletics and determining who is eligible to compete as a female. This includes a history of sex verification tests being conducted on athletes to determine whether or not they are considered sufficiently female to be able to compete in the female category.¹

Hyperandrogenism Regulations

The 2018 DSD Regulations challenged by Semenya were introduced in 2018 by World Athletics (then known as the International Association of Athletics Federations (“IAAF”)) following controversies in relation to a previous policy known as the “IAAF Regulations Governing Eligibility of Females with Hyperandrogenism to Compete in Women’s Competition” (“Hyperandrogenism Regulations”), a precursor to the 2018 DSD Regulations.² The Hyperandrogenism Regulations regulated the participation of female and intersex athletes in international competitions.³ As a result of the Hyperandrogenism Regulations, Semenya was previously required to undergo hormone treatment to lower her testosterone levels. She did so, and went on to win the 800m at the World Championships in Daegu in 2011 and the Olympic Games in London in 2012. However, she did so at a personal cost to herself as a result of undertaking the treatment and later refused to continue treatment.

In 2015, Indian 100m track athlete, Dutee Chand received a decision in her favour against the IAAF (now World Athletics) in relation to the Hyperandrogenism Regulations.⁴ See Hyperandrogenism in athletics: a review of Chand v. IAAF for more detail on this decision. The Hyperandrogenism Regulations prevented Chand from competing due to her naturally high levels of testosterone. The CAS panel suspended the IAAF policy, giving it two years to come up with more evidence that intersex athletes (or athletes with DSDs) like Chand had any significant advantage as a result of their higher levels of testosterone as compared to the general female population.

This decision allowed athletes such as Chand and Semenya to return to competitive running without having to undergo hormone treatment.

Hyperandrogenism Regulations

However, in April 2018, the IAAF introduced the 2018 DSD Regulations, which became effective in 2018 that year.⁵ The 2018 DSD Regulations no longer prevented Chand from competing, but did affect Semenya and a number of other intersex athletes like Semenya with:

• the particular DSDs listed in the 2018 DSD Regulations;
• circulating testosterone levels in blood of 5 nmol/L or above; and
• sufficient androgen sensitivity for the higher testosterone levels to have an effect.⁶

Athletes with all of these factors applying to them were “Relevant Athletes” under the policy and required to maintain their circulating testosterone levels below 5nmol/L.⁷

The 2018 DSD Requirements were only relevant to “Restricted Events” over distances of 400m up to a mile (essentially, the middle-distance running events).⁸

There was a perception that the application of these restrictions to middle-distance events was designed to ensure that they specifically applied to Semenya.⁹ In support of this was the fact that there was greater evidence of a significant advantage in relation to hammer throw and pole vault as compared to middle-distance races, but the 2018 DSD Regulations only applied to middle distance racing events. Other athletes affected included two Namibian 400m runners who were banned from running in that event at the Tokyo 2020 Olympics, 800m/1500m runner Annet Negesa from Uganda and 800m runner Maximila Imali from Kenya. For these athletes, being banned from running at an international level could have devastating personal and financial consequences, with their entire careers and opportunities suddenly taken away from them after years of training and sacrifices. This is added to the likely emotional turmoil that would come from having to undergo medical examinations to determine whether they fall within the relevant category.

Relevant Athletes

Relevant Athletes under the 2018 DSD Regulations could only compete in the Relevant Events at the international level where they underwent hormone treatment to reduce their circulating testosterone levels for at least a 6-month period, and then maintained their testosterone levels below the relevant threshold during the period in which they were competing.¹⁰

Semenya and other “Relevant Athletes” who were affected by the 2018 DSD Regulations had concerns about undergoing the hormone treatment, as they considered it had side-effects on them that are poorly understood from a medical perspective. There are also potential practical difficulties in ensuring that testosterone levels are maintained below the required limits, and a risk that if something went wrong, the athlete could accidentally compete with higher testosterone levels and then be disqualified, despite having followed the requirements in the lead up to the event, and not being aware that their testosterone was exceeding the limits until after the event when the test results were available.

Proceedings before CAS

Subsequently, Semenya and Athletics South Africa (“ASA”) both commenced proceedings in the CAS seeking that the 2018 DSD Requirements be declared unlawful and preventing their enforcement on the basis that they were discriminatory, unnecessary, unreasonable and disproportionate.¹¹ For more information on the proceedings, refer to this article on LawInSport.

CAS dismissed the requests brought by Semenya and ASA.¹² CAS found that the 2018 DSD Regulations were discriminatory but necessary, reasonable and proportionate to achieving the goal of integrity of female athletics and protecting the female category.¹³ It found that requiring the Relevant Athletes to take oral contraceptives to manage their testosterone levels to compete in the female category was not disproportionate.¹⁴ It did however note that in relation to certain events and certain DSDs there was sparse evidence of any significant athletic advantage.¹⁵ It also noted that there were potential practical difficulties for athletes in maintaining their testosterone level below the 5 nmol/L level, which could make the 2018 DSD Regulations disproportionate if these potential practical issues proved in the future to be genuine issues.¹⁶ The finding that the 2018 DSD Regulations were proportionate was also premised on the fact that participation was limited to events where there was reasonable evidence of a significant performance advantage for Relevant Athletes.¹⁷

In May 2019, Semenya appealed the CAS decision to the Swiss Federal Tribunal, arguing that she had been discriminated against on the grounds of sex compared to male and female athletes with no DSD, and her human dignity and personality rights had been breached. However, this appeal was dismissed. The Swiss Federal Tribunal found that it only had power to review whether the CAS decision was incompatible with substantive public policy, and not whether it was compatible with human rights. Ultimately, based on its limited review, the Swiss Federal Tribunal agreed with CAS and found that the 2018 DSD Regulations were an appropriate, necessary and proportionate means of achieving the legitimate aims of fairness in sport and upholding the “protected class” that is the female category.

However, the 2018 DSD Requirements were updated in 2023 to extend to athletes with the relevant DSDs who have a circulating blood testosterone level of 2.5nmol/L or above, and to encompass all athletics events, and not just middle-distance running events (2023 DSD Regulations).¹⁸ Relevant Athletes are now required to keep their circulating blood testosterone levels below 2.5nmol/L, which could present further practical difficulties as compared to the policy that was considered by CAS.¹⁹ Therefore, the lower limit could render the 2023 DSD Regulations disproportionate based on the 2018 CAS decision. Its application to all athletics events could also potentially mean it would be judged disproportionate based on the 2018 CAS decision.

The ECHR Decision

Question of Jurisdiction of the ECHR

Firstly, the ECHR determined in its judgment that it had jurisdiction to hear the matter, even though the IAAF was a private law association with its seat in Monaco.²⁰ This is consistent with its decision in Mutu and Pechstein v Switzerland (Applications nos. 40575/10 and 67474/10) (“Pechstein”) in which it determined that it had jurisdiction to consider an appeal before CAS and the Swiss Federal Tribunal. In that case, an important distinction was drawn between compulsory arbitration and voluntary arbitraration.²¹ In the Pechstein case, the ECHR confirmed it is possible to waive the right to enforcement of certain human rights protections, whereas in the context of compulsory arbitration, the ECHR found that the right to the safeguards that existed under the Article 6 of the European Convention to have access to a court would not be waived and CAS was therefore required to provide all the same procedural protections available in a court process. For a detailed explanation on the Mutu & Pechstein case, please see this article on LawInSport and this article as well.

However, the Semenya case was not about the protections in Article 6 of the European Convention, and related to different rights. Nonetheless, the 4-3 majority of judges found that the case fell within the jurisdiction of Switzerland, and therefore was within the ECHR jurisdiction and the obligation to respect human rights under the European Convention applied to the case.²² This is broadly relevant for athletes and sports bodies wanting to challenge decisions relating to compulsory CAS arbitrations. The ECHR noted that if it found that it did not have jurisdiction, in the context of compulsory arbitration at CAS, this would bar the entire category of female athletes (competing in international/professional athletics events) from the ECHR, which would be inconsistent with the European Convention. This was considered a reason in favour of there being jurisdiction.²³

However, the three dissenting judges did not agree with the majority judges that there was jurisdiction. They considered that the extension of jurisdiction of the European Convention to this case opened the door too widely to cover the entire sporting world²⁴. They concluded that there was an insufficient foundation for this extension of the European Convention to a private-law sports dispute between a non-European athlete and a body based in Monaco for it to be open for the ECHR to examine the application of substantive rights (as opposed to procedural rights as in the Pechstein case).²⁵

In relation to the case itself, a majority of the ECHR (4 votes to 3) upheld Semenya’s claims,²⁶ finding that:

• there had been a violation of Article 14 of the European Convention on Human Rights (European Convention) (i.e. the prohibition of discrimination) when taken together with Article 8 of the European Convention (i.e. the right to respect for private life);²⁷ and
• there was a violation of Article 13 of the European Convention in relation to Article 14, taken together with Article 8 of the European Convention.²⁸

Article 8 of the European Convention states:

“1. Everyone has the right to respect for his private life and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

The ECHR found that the case fell within the ambit of Article 8 as even though the Relevant Athletes had the choice whether or not to take the oral contraceptives, they were given a choice between taking the treatment, which was likely to cause physical and mental harm, and on the other hand, not being able to practice their profession.²⁹ These were both matters which fell within the scope of Article 8.³⁰ The ECHR also noted findings of the United Nations High Commissioner for Human Rights that had stated that regulations such as these could have adverse effects on, amongst other things:

• the right to work,
• the right to obtain the highest attainable standard of physical and mental health,
• the right to be free from arbitrary interference with privacy, and
• the right to respect for dignity, bodily integrity and bodily autonomy.³¹

The ECHR found that the 2018 DSD Regulations would interfere with Semenya’s right to privacy, and the right to respect for the dignity, bodily integrity and bodily autonomy of the person.³²

Substantive Decision

Article 13 of the European Convention provides:

Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.

Article 14 states:

The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with national minority, property, birth or other status.

The ECHR noted that the CAS had expressed concerns that the side-effects of the treatment were significant, that it had acknowledged that female athletes who carefully complied with the treatment requirements might still be in breach of the 2018 DSD Regulations, and that there was limited evidence that DSD athletes had any significant advantage in the 1500m and mile races.³³ In relation to the Swiss Federal Tribunal, the ECHR noted that the Swiss Federal Tribunal had failed to address the doubts in relation to the practical application of the 2018 DSD Regulations and the scientific evidence to support it.³⁴ It also noted the human rights concerns expressed by various bodies in relation to discrimination against women and particularly intersex athletes by regulations such as the 2018 DSD Regulations.³⁵

The ECHR found that CAS had not applied the European Convention and had left open serious questions regarding the validity of the 2018 DSD Regulations, with the particular questions relating to the side-effects of the hormone treatment, the potential inability of DSD athletes to comply with the 2018 DSD Regulations and the lack of evidence of significant advantage in relation to the 1500m and mile events.³⁶ It did not consider that the 2018 DSD Regulations were objective and proportionate to the aim pursued.³⁷

The ECHR found that the review carried out by the Swiss Federal Tribunal was very limited, and ruled that it had failed to respond to the serious concerns expressed by CAS, particularly the concerns about the side-effects of the hormonal treatment,³⁸ and therefore had not acted in a manner compatible with Article 14 under the European Convention.³⁹

Given the high stakes involved for Semenya – participating in athletics competitions at the international level (and therefore, practising her profession) – the required mark of “very weighty reasons” to justify the discrimination had not been met.⁴⁰ Therefore Switzerland had breached her human rights as required by Article 8 together with Article 14⁴¹ by failing to provide her with a thorough institutional and procedural review to allow her complaints to be effectively examined.⁴²

Similarly, and for the same reasons, it found that CAS and the Swiss Federal Tribunal had failed to provide her an effective remedy as required under Article 13, as read together with Articles 8 and 14. The ECHR considered that the complaints that Semenya lodged with CAS and the Swiss Federal Tribunal in respect to breaches of her human rights in relation to non-discrimination and the right to dignity and personality rights, had been substantiated.⁴³ The ECHR concluded that the domestic remedies available to Semenya in allowing the discrimination to continue could not be considered effective.

Appeal rights from ECHR Decision

The ECHR decision was based upon a 4-3 majority of the Chamber of 7 judges. Such decisions are able to be appealed within a three-month window by way of a request for referral to the Grand Chamber of 17 judges.⁴⁴ At the time of the ECHR judgment being released, World Athletics immediately urged Switzerland to appeal the decision and vowed to continue applying the 2023 DSD Regulations.⁴⁵ It stated that it intended to liaise with the Swiss government. The World Athletics press release noted the serious concerns raised by the dissenting judges in support of its stance.

The three-month window for appeal ended on 11 October 2023. If the matter had not been referred, and the three months expired, the judgment would now be final.⁴⁶ However a referral was made to the Grand Chamber before 11 October and will now be considered by a panel of five judges of the Grand Chamber in accordance with Article 43 of the European Convention.

The request for referral to the full Grand Chamber will only be accepted if the five judge panel considers that exceptional circumstances apply.⁴⁷ The Grand Chamber will only accept requests for cases raising “a serious question affecting the interpretation or application of the Convention or the Protocols thereto, or a serious question of general importance”.⁴⁸ If the referral to the Grand Chamber is made by a party, and rejected, the Chamber judgment would become final from the time that the request is rejected.⁴⁹

Given the decision was only made by way of the narrowest possible majority, the minority dissenting judges raised serious questions about jurisdiction, and the significance of the jurisdictional decision for sports law globally, it would not be surprising if exceptional circumstances are found to be present (i.e. it is considered to raise a serious question of general importance, or a serious question affecting the interpretation or application of the Convention).

Nonetheless, should the appeal proceed, given the impact on the protection of human rights of individual athletes if jurisdiction is found not to extend to cases where individuals are compulsorily subjected to the CAS arbitration process in order to participate in the sport, the Grand Chamber (like the majority in the Chamber) will likely be relucant to find the ECHR has no jurisdiction. Therefore, it appears unlikely to the author that the majority ECHR Chamber judgment will be overturned.

Conclusion

The decision does not mean that Semenya and other “Relevant Athletes” with DSDs are able to start competing again, or that the 2018 DSD Regulations are unenforceable. What it does mean is that Semenya or another female/intersex athlete with a DSD who falls into the category of a Relevant Athlete under the 2023 DSD Regulations and who wishes to compete in the female category could challenge the 2023 DSD Regulations on human rights grounds before CAS. If they did so, CAS would be required to consider the athlete’s human rights under the European Convention, and if it did not do so, the decision would be appealable before the Swiss Federal Tribunal. Given the comments by the CAS panel about:

• the lack of evidence that there was a significant advantage in relation to events longer than 800m in distance;
• the potential practical difficulties of Relevant Athletes keeping their circulating blood testosterone below 2.5nmol/L; and
• the uncertain potential side-effects of the treatment for athletes with DSD,

and the concern expressed by the ECHR about these issues not being given sufficient weight to ensure that Semenya’s human rights were respected, the ECHR decision alongside the previous CAS decision raises serious questions about the 2023 DSD Regulations and their compatibility with human rights principles. As discussed above, the 2023 DSD Regulations impact upon more athletics events than the 2018 DSD Regulations, and require a lower circulating blood testosterone level, making the practicality and side-effects issues even more concerning. Therefore, unless World Athletics is able to provide greater evidence of:

• athletes with the relevant DSDs having a significant advantage and/or provide evidence to demonstrate that they are otherwise proportionate,
• the lack of any specific side-effects particular to DSD athletes, and
• the lack of any real practical issues for the Relevant Athletes in maintaining testosterone limits within the required limits,

it is likely that a future challenge to CAS would be successful.

The other interesting outcome from this case is that it demonstrates the potential applicability of human rights principles for all sports cases that make their way to CAS as a result of compulsory arbitration. It was crucial to the decision in this case that the athletes affected by the DSD Regulations were unable to apply to their national courts, as they were required to undergo compulsory arbitration through CAS.⁵⁰ This meant that they were limited in their ability to have their matter heard by an independent court, making it all the more important that the Swiss Federal Tribunal protect the right to seek an effective remedy as required under the ECHR. This ultimately meant that the majority judges determined that a decision in relation to a South African athlete affected by a private-law association with its seat outside of Europe, could fall under the jurisdiction of the ECHR. This was based upon the fact that the Swiss Federal Tribunal had jurisdiction to consider the CAS decision pursuant to Article 190(2) of the Swiss Private International Law Act, and therefore was required to apply the European Convention in doing so.

The decision could have obvious applicability in relation to the rights of female transgender athletes, in relation to whom World Athletics and various other international sports governing bodies have recently adopted similar harsh regulations. However, it could also have significant consequences in particular for anti-doping rules, regulations and penalties given the similar human rights principles that might apply in those cases. For example,

• the right to work,
• the right to obtain the highest attainable standard of physical and mental health,
• the right to be free from arbitrary interference with privacy, and
• the right to respect for dignity, bodily integrity and bodily autonomy,
• are all potentially relevant to disputes about doping and doping controls.

Assuming it is not overturned by the Grand Chamber, this case and the attitude displayed by the ECHR that it should not take a restrictive approach to recognising its jurisdiction, could upon the gates for more CAS disputes (and other decisions appealed to the Swiss Federal Tribunal from compulsory arbitration processes) being challenged to the ECHR. It could also lead to greater reference and consideration of human rights principles in CAS and Swiss Federal Tribunal decisions. In turn, this could impact upon sport more broadly, with human rights becoming a more prevalent consideration in decision-making for sports administrators. Sports lawyers and human rights advocates will be awaiting the Grand Chamber decision with interest.