Caster Semenya found to have been discriminated against in testosterone case

Runner Caster Semenya was discriminated against by rules that forced her to lower her testosterone levels in order to continue competing, according to a judgement from the European Court of Human Rights.

The 32-year-old, a two-time 800 metres Olympic champion, was legally identified as female at birth but has a condition that means her body naturally produces higher levels of testosterone than women without the condition.

She has been unable to compete at her favoured distance since 2019, following the introduction of limits on testosterone levels for female athletes which would have forced her to use medication.

Previous legal challenges to the Court of Arbitration for Sport and the Swiss Federal Supreme Court were rejected, but the ECHR found her human rights had been violated.

A release issued by the court stated: “The Court found in particular that the applicant had not been afforded sufficient institutional and procedural safeguards in Switzerland to allow her to have her complaints examined effectively, especially since her complaints concerned substantiated and credible claims of discrimination as a result of her increased testosterone level caused by differences of sex development (DSD).”

A legal summary of the case said Article 14 of the European Convention on Human Rights, which relates to discrimination, had been violated, along with Article 13, which related to the absence of effective remedies to tackle that discrimination.

Schona Jolly KC from Cloisters, a barrister who had acted for Semenya in the case, said: “We are absolutely delighted for our client today.

"Caster has never given up her fight to be allowed to compete and run free.

“Today’s judgment is testament to her resilience and courage... This important personal win for her is also a wider victory for elite athletes around the world.

“It means that sporting governance bodies around the world must finally recognise that human rights law and norms apply to the athletes they regulate."

The South African Olympic and World Champion became the focus of a debate around her gender more than a decade ago.

In the same year that she won the 2009 World Championships in Berlin at the age of 18, the International Association of Athletics Federations ruled she had to undergo a sex verification test.

She announced in March 2010 she would return to athletics and two years later went on to win the 800m silver at the 2012 London Olympics, which was later upgraded to gold.

During her return to running, she also won the 800m at the 2016 Rio Olympics as well as World Championship golds in 2011 and 2017.

However, following a rule change by governing body World Athletics, she was not allowed to compete in events between 400m and a mile without taking testosterone-reducing drugs.

The regulations mean women born with certain, rare genetic conditions – which can result in them having partially developed male sex organs – must reduce their naturally-occurring levels of the primary male sex hormone testosterone to a level closer to the normal female range.

In September 2020, she lost her appeal to the Swiss Supreme Court against the World Athletics regulations, which restrict testosterone levels in female athletes, and in 2021 she said she made an application to the European Court of Human Rights.

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