Caster Semenya Wins Testosterone Law Appeal at Human Rights Court

Caster Semenya (LAPRESS)

Two-time Olympic runner Caster Semenya won an appeal against the testosterone laws on Tuesday after the European Court of Human Rights ruled she was discriminated against and raised questions about the validity of the rules. There is a reaction from the athletics association.

Caster Semenya was legally identified as a woman from birth and has identified as a woman all her life. However, regulations introduced by the athletics governing body in 2019 forced her to artificially suppress her natural testosterone in order to compete in women’s competitions. Caster Semenya suffers from hyperandrogenism, i.e. an excess of male hormones. According to the IAAF, Semeya should be classified as male because her testosterone levels are too high. For this reason, in 2019, the runner could not take part in the championships. Later, the rules barred Semenya from running altogether because she refused to artificially lower her natural hormones in order to run.

Semenya went to court with her case. Semenya has been challenging testosterone laws in the courts for years, but previously lost a high court appeal in 2019. Now, however, Caster Semenya won an appeal against the athletics testosterone regulation on Tuesday after the European Court of Human Rights ruled she was discriminated against. The Strasbourg Court ruled in favor of Semenya by a majority of 4-3 judges in a discrimination complaint and noted that she had been denied an “effective remedy” against this discrimination in two previous cases she had lost at the Court of Arbitration for Sport and the Swiss Supreme Court.

Tuesday’s ruling was in many respects a criticism of the 2019 CAS decision. The sports court upheld rules that require Semenya and others with so-called gender differences to take birth control pills, take hormone-blocking injections or undergo surgery in order to compete in top competitions like the Olympics and World Championships. The rules were initially enforced in some events, but have been expanded and tightened this year by World Athletics. Athletes like Semenya were forced to lower their testosterone levels further if they wanted to compete in any kind of race. The decision of the Swiss-based CAS, which rejected Semenya’s first appeal, failed to take due account of important factors such as the side effects of hormone treatments and the lack of evidence that their naturally high levels of testosterone actually gave them an advantage, the European Court of Human Rights ruled. The European Court of Human Rights also said that Semenya’s second appeal against the rules in the Swiss supreme court should have led to a “thorough institutional and procedural review” of the rules. The European Court of Human Rights ordered the Swiss government to pay Semenya €60,000 for costs and expenses.

World Athletics, which enforces the rules, said in reaction to the decision that its rules would remain in place. In a statement, World Athletics said: “We stand by the view that the DSD rules are a necessary, reasonable and proportionate measure to protect fair competition in the women’s category, as determined by the Court of Arbitration for Sport and the Swiss Federal Court after a thorough and expert assessment of the evidence.”

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