Caster Semenya Case: Switzerland Condemned by the ECHR for Discrimination and Disregard of the Hyperandrogenic Athlete's Right to an Effective Remedy

ECHR, 11 July 2023, no. 10934/21, Semenya c. Suisse

Date of the decision: 2023-07-11

In a ruling dated 25 August 2020, the Swiss Federal Tribunal (SFT) had, after a limited review, upheld the compliance with Swiss public policy of the award issued on 1 May 2019 by the Court of Arbitration for Sport (CAS), which confirmed, despite “serious concerns”, the legality of the IAAF’s regulation prohibiting female athletes with blood testosterone levels above 5 n/mol/L from competing in certain competitions (the new regulations). However, in a judgment dated 11 July 2023, the European Court of Human Rights (ECHR) ruled that Ms Caster Semenya had not benefited from sufficient institutional and procedural guarantees to effectively assert her grievances during these domestic remedies.

Facts and Procedure

On 23 April 2018, the Council of the International Association of Athletics Federations (IAAF, since 2019, World Athletics) approved the publication of its new “Eligibility Regulations for the Female Classification (Athletes with Differences in Sex Development)”, prohibiting female athletes with naturally high blood testosterone levels (above 5 n/mol/L; 2.5 n/mol/L from now on) from competing in the 400 to 1500-meter distances at international events (and no longer just below the male standard of 10 n/mol/L, as provided for in the first regulations drawn up by IAAF on 12 April 2011). This is a threshold that can be regulated by the use of hormonal contraception, according to World Athletics.

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