Caster Semenya, the two-time Olympic champion and a prominent figure in the ongoing debate surrounding athletic eligibility regulations, has scored a partial victory over the Swiss Federal Supreme Court. In a ruling published earlier this week, the European Court of Human Rights (ECHR) confirmed that Switzerland violated Semenya’s right to a fair hearing when it dismissed her 2023 appeal against World Athletics’ stringent sex eligibility regulations that have effectively barred her from competing.
The 34-year-old South African athlete, born with differences in sexual development (DSD), has been unable to compete in the 800m event since World Athletics imposed regulations in 2019 that mandate female athletes with higher natural testosterone levels to lower them to be eligible for competition. These rules were extended in 2023 to encompass all female track and field events, further complicating Semenya’s already tumultuous path back to the sport.
The crux of Semenya’s legal battle lies in her assertion that the governing body has exhibited discrimination against DSD athletes. “This is a reminder to the leaders [that] athletes need to be protected,” Semenya expressed jubilantly outside the court in Strasbourg, France. “Before we can regulate, we have to respect athletes and put their rights first.”
While Semenya won on procedural grounds, with the ECHR’s Grand Chamber stating that the Swiss court’s review lacked the necessary rigor under Article 6—right to a fair hearing—her calls under Articles 8, 13, and 14 were dismissed as inadmissible. Consequently, the ruling does not directly challenge the existing World Athletics restrictions on DSD athletes, which results in little immediate impact on the current landscape of female athletics.
Analysts suggest that while Semenya’s case was framed against the Swiss government and offers a glimmer of hope for future hearings, the path to any potential resolution remains elusive. The Swiss Supreme Court, under pressure from its government, may review the case again, but officials at World Athletics regard this as a lengthy process, potentially stretching years into the future. Therefore, the ruling arrives too late for Semenya to resume her professional running career, as she has transitioned into a coaching role.
In light of evolving scientific research, World Athletics remains steadfast in its belief that athletes with DSD enjoy significant physiological advantages akin to their male counterparts. This has led to the announced introduction of cheek swab DNA tests to assess the biological sex of athletes—which aims to identify the SRY gene associated with the development of male physical traits—potentially precluding DSD athletes from competing in the female category, irrespective of testosterone suppression efforts.
The ongoing scrutiny surrounding this contentious issue coincides with a pivotal juncture for the International Olympic Committee, which, led by new president Kirsty Coventry, is contemplating the implementation of similar policies across various sports. The intersection of science, ethics, and fairness continues to fuel the debate, raising pressing questions about the future of athletics and the rights of all athletes involved.