Court gives Caster Semenya a glimmer of hope to return to Olympic track competition

Caster Semenya has a glimmer of hope to return to competition.

The European Court of Human Rights Grand Chamber upheld a previous decision saying Semenya, a South African Olympic Champion, was denied her right to a fair trial in previous actions within the Swiss Supreme Court, where she lost an appeal in 2020.

The decision of the panel of 17 judges, rendered Thursday from Strasbourg, France, voted 15-2 that the Swiss Supreme Court violated the two-time Olympic Champion’s human rights under Article 6, section 1 of the European Convention on Human Rights.

“The rigor of the judicial review carried out by the sole court with jurisdiction to review arbitral awards, the Swiss Federal Court in this case, be related to the importance of individual rights at stake,” the judges stated in their verdict, “In this case, the court found that the examination of the applicant’s case by the Federal Court had not satisfied this requirement of rigor particularly required in the circumstances of the case.”

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Caster Semenya wins appeal in European Court of Human Rights
Judges rule the two-time Olympic champion’s rights were infringed, but World Athletics says their rules will remain.

The decision did not consider Semenya’s main contention regarding directly World Athletics regulations on differences in development that have kept her out of competition since 2019.

However, Thursday’s decision reopens a legal pathway to challenge those regulations directly in the Swiss Supreme Court or ultimately the Court of Arbitration for Sport although such a path could take years for the now 34-year-old two time Olympic 800 meter champion and three-time world champion.

Semenya told reporters as she left that courtroom that she was pleased at the outcome. “This is a reminder to the leaders. Athletes need to be protected,” she said. “Before we can regulate we have to respect athletes and put their rights first.”

This decision is the latest chapter in a saga that stretches back to Semenya’s first world championship at 800 meters in 2009. The world governing body for track and field ordered her to submit to a test amid rumors in the media regarding her dominance and her muscular build, even at 18 years old.

According to her 2023 autobiography, The Race To Be Myself, the results of that mandated gynaecological exam were leaked to the media. “I learned that I had XY chromosomes, rather than the typically female XX pairing, and high levels of testosterone,” she wrote.

She also noted a medical warning given by her doctor over the estrogen that the IAAF wanted her to take, to counter her high testosterone levels saying that taking them beyond one Olympic cycle would cause long-term harm.

Semenya stayed in medication through her 2012 Olympic championship at 800 meter in London through to 2015, when the IAAF mandate was lifted because of the ruling on Indian sprinter Dutil Chand in the Court of Arbitration and Sport over a similar issue. “That day, I threw my pills in the trash can,” she wrote.

But the result of the women’s 800 meters at the 2016 Rio Summer Olympics reopened the controversy. Semenya’s win, along with silver medalist  Francine Niyonsaba of Burundi winning and bronze medalist Margaret Wambui of Kenya were all the subject of scrutiny regarding alleged DSD. The mounting media and public pressure led to World Athletics putting up testosterone limits for all races from 400 meters to 1 mile in distance — what some refer to as the “Caster Semenya Rule.”

Since 2019, Semenya has been out of competition to the challenge the original rule, and a tightened version put up in 2023. She lost an initial case and appeal in the Court for Arbitration for Sports in 2019, and lost an appeal in the Swiss Supreme Court in 2020 that kept her out the 2021 Summer OIympic Games in Tokyo. The 2023 ruling by the ECHR represented her first legal victory.

Today’s decision could impact a number of athletes in her own sport and could have ripple effects across all of international elite sports.

Amateur boxing is one sport that could be impacted immediately due to the controversy surrounding Algerian Olympic gold medalist Imane Khelif and Taiwanese Olympic champion Lin Yu‑ting. World Boxing, the newly formed world governing body, ordered Khelif to submit to testing before she is allowed to compete with the world championships coming in September.

World Athletics has tightened it rules on DSD, including announcing that the governing body well reinstitute chromosomal testing on women’s athletes, earlier this year. FIFA is also considering a regulations revamp.

IOC President Kirsty Coventry has stated after years of leaving such matters to the individual governing bodies the IOC wants to take a more active role in shaping these regulations going forward.

“We have to protect the female category, first and foremost to ensure fairness,” Coventry said to reporters during IOC meetings last month. “We need to do that with a scientific approach and the inclusion of the international federations who have already done a lot of work in this area.”

For Semenya, today’s decision wasn’t about her own career. She is currently coaching prospective athletes, as opposed to competing. Her hope is to push for regulatory changes for athletes today and tomorrow.

“It’s a battle for human rights now,” Semenya stated to a South African newspaper last month. “It’s not about competing, it’s about putting athletes’ rights first. It’s about the protection of athletes.”

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