The 'Semenya case' returns to the European Court of Human Rights

Caster Semenya's legal marathon continues: the case of the South African athlete, deprived of competition because she refuses to lower her testosterone levels, will be examined again by the European Court of Human Rights (ECHR) on Wednesday.

Oliver Thansan
Oliver Thansan
14 May 2024 Tuesday 04:55
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The 'Semenya case' returns to the European Court of Human Rights

Caster Semenya's legal marathon continues: the case of the South African athlete, deprived of competition because she refuses to lower her testosterone levels, will be examined again by the European Court of Human Rights (ECHR) on Wednesday.

The double Olympic 800 meters champion (2012, 2016) won her case against Switzerland in the first instance before the pan-European body. But this time it will be the Grand Chamber of the ECtHR, a kind of appellate body whose decisions are final, which will examine this complex matter. His decision is not expected for several months.

The 33-year-old middle distance specialist, who will be in Strasbourg to defend her cause, has a natural excess of male sex hormones, but has always been legally identified as a woman.

Harassed since her first appearances in debates about her physical appearance, excluded from competition for the first time for 11 months and forced to undergo “femininity tests” that remain secret, the South African has been fighting for years to compete without treatment.

She complains about a regulation of the International Athletics Federation (World Athletics), which has required her since 2018 to reduce her natural level of testosterone to be able to participate in international competitions in the women's category.

This regulation was validated by the Court of Arbitration for Sport (CAS) in 2019, then confirmed by the Federal Court of Lausanne, which in August 2020 highlighted “the fairness of competitions” as a “cardinal principle of sport”, in the argument that a testosterone level comparable to that of men gives female athletes “an insurmountable advantage.”

The athlete's appeals against these two institutions were rejected but she won her case before the ECtHR on July 11. The court, based in Strasbourg, considered that the decision of the Swiss courts constituted discrimination and a violation of her private life.

“My hope is that World Athletics, and beyond all sports organizations, take into account the decision of the ECtHR and ensure that they respect the dignity and human rights of athletes,” Semenya stressed the day after the decision.

This victory before the ECtHR was considered by some experts to be a capital decision: this ruling “will remain in history, because it affects the autonomy of sports organizations to regulate access to their competitions, which will be necessary to address respect for human rights.” ”, stressed Antoine Duval, specialist in sports law at the Asser Institute in The Hague.

However, the ruling in the first instance of the ECtHR was only handed down by a narrow majority of four judges against three, which pushed the Swiss authorities, supported by World Athletics, to refer the matter to the Grand Chamber, the most solemn body of the European Parliament. Court. This time, 17 judges will examine this case during a hearing that will begin on Wednesday at 9:15 a.m. (07:15 GMT).

The ruling handed down last July by the ECHR did not invalidate the World Athletics regulations and did not directly open the way for Semenya to participate in the 800 meters without treatment.

World Athletics had even tightened its regulations in March 2023 regarding hyperandrogenic athletes, like Semenya, who must now keep their testosterone level below the threshold of 2.5 nanomoles per liter for 24 months (instead of 5 nanomoles for six months) to compete in the women's category. , regardless of the distance.

This endless judicial process has, in any case, an enormous financial cost for Caster Semenya, who has not run since March 2023 and launched an appeal for donations in February.

“We lack funds. We have a lot of experts coming in who we have to pay,” he said at a press conference in Johannesburg.

His South African lawyer, who works pro bono, had estimated that the costs of the hearing could amount to around 170,000 euros. “He is absolutely crazy, ridiculous. That is why we are addressing the public,” explained his lawyer Gregory Nott. In the first instance, the ECtHR awarded the South African athlete “60,000 euros in costs and expenses.”