First published in the Daily Maverick 168 weekly newspaper.

Caster Semenya is no stranger to challenges. That comes with the territory of being a world-class athlete. Every day is a new challenge to be better, to run faster and to keep the competition at bay.

Those are aspects of her sport and life Semenya can control. But in Semenya’s case, the double Olympic 800m champion has the additional challenge of proving her legitimacy to compete as a female.

She is forced, by science and law, to prove that she belongs in the field of female athletes and is “categorised” female, regardless of how she identifies herself.

She cannot control the way she was born, but she is being compelled to exhaust every legal avenue so that she can continue her career.

Semenya is fighting for the right to compete in her favoured event in Tokyo – the 800m – after World Athletics regulations compelled her to lower her natural testosterone levels if she wants to remain in the field.

Semenya is one of a number of female athletes with differences in sex development (DSDs) competing in races ranging from 400m to a mile. As a result of the ruling, she either has to take drugs or have surgery to lower her testosterone levels if she wants to compete in those events. Understandably, she wants to do neither.

After losing an appeal to the Court of Arbitration for Sport (CAS), and another subsequent plea to the Swiss Federal Tribunal (SFT) asking for the CAS ruling to be set aside, the next stop is the European Court of Human Rights.

An application has been filed

“I hope the European Court will put an end to the long-standing human rights violations by World Athletics against women athletes‚” Semenya said in a statement this week.

“All we ask is to be allowed to run free‚ for once and for all‚ as the strong and fearless women we are and have always been.”

At the time of last year’s ruling by the SFT, World Athletics said in a statement: “For many years World Athletics has fought for and defended equal rights and opportunities for all women and girls in our sport today and in the future.

“Throughout this long battle, World Athletics has always maintained that its regulations are lawful and legitimate, and that they represent a reasonable, necessary and proportionate means of ensuring the rights of all female athletes to participate on fair and equal terms.

“It has rejected the suggestion that they infringe any athlete’s human rights, including the right to dignity and the right to bodily integrity. Both the [CAS] and the [SFT] agreed.

“In its decision in early September, the SFT concluded, ‘Based on these findings, the CAS decision cannot be challenged. Fairness in sport is a legitimate concern and forms a central principle of sporting competition. It is one of the pillars on which competition is based.’”

The human rights violation case

Semenya’s lawyers will argue that what World Athletics has done, and what the CAS has upheld, is effectively a human rights violation.

Their preparation has been thorough and time-consuming. It has taken six months to file a huge volume of supporting documentation for their case.

“Caster asks the court to find that Switzerland has failed in its positive obligations to protect her against the violation of her rights under the European Convention on Human Rights, as a result of World Athletics’ continuing discriminatory attempts to restrict the ability of certain women to participate in female athletics competitions‚” a statement from Semenya’s lawyers Gregory Nott and Patrick Bracher‚ and Paris-based Christian Dargham, read.

“Caster’s application continues her challenge to the demeaning and intrusive regulations implemented by World Athletics in 2018 which prohibit some women athletes with naturally higher levels of testosterone from participating in international competitions.”

Although all the papers have been filed on time and within the regulations of the court, it is unlikely that Semenya’s case will be heard, let alone finalised, before the Olympics start on 23 July this year.

Race against time

Both Semenya and her lawyers have accepted that there is only a slim chance this case will be finalised before the Olympics, but it’s not only about one event. It will be a test case for DSD athletes in future.

“As there are many cases before this court, it is unlikely that this hearing will take place before the Tokyo Games,” Nott told DM168.

“We have asked that this case have an expedited hearing, but I’d say it’s only an equal odds chance of being heard in time on an expedited basis. That’s because there are so many torture and other related cases before the court. So, we are not holding our breath.

“We have gone through an enormous amount of work to lodge the appeal, though, and we did it timeously within the six-month period from when the SFT judgment was handed down.”

Nott also confirmed that despite the uncertainty over competing over 800m at the Olympics, Semenya was “training hard” and would be “ready to rock ’n’ roll” once the hearing had been finalised.

She would still need to run a qualifying time for the Olympics, which she hasn’t yet done because of the setbacks in court last year.

Even if she didn’t run a qualifying time and won her case at the Human Rights Court, it’s almost certain that the South African Sports and Olympic Committee (Sascoc) would include her in the team for Tokyo.

Sascoc appeared before Parliament this week and boldly said its aim was for 13 medals in Tokyo. Considering the most Team SA has achieved at a single Olympics was 10 in 2016, it would be vital for Sascoc to include Semenya, if eligible.

Semenya has also possibly set her sights on another event, such as the 200m sprint, which falls outside of the restricted list of races she can’t compete in. But she has not confirmed the move yet.

Nott gave a strong hint, though, that this could be in her thinking.

“We don’t know what events Caster will run, but run she will. She is intent on running and her strategy at this moment is her own, which will be kept to herself for now.” DM168

This story first appeared in our weekly Daily Maverick 168 newspaper which is available for free to Pick n Pay Smart Shoppers at these Pick n Pay stores.