Court says Semenya can appeal testosterone limit for female athletes

Court says Semenya can appeal testosterone limit for female athletes
Caster Semenya competes in the 5,000m heats at the World Athletics Championships in Eugene, Oregon, on 20 July 2022. (Photo: Hannah Peters / Getty Images for World Athletics)

Caster Semenya won a long-running legal battle this week, but her race is not run.

Europe’s top human rights court ruled in favour of Olympic runner Caster Semenya on Tuesday, saying courts in Switzerland should give her a new chance to fight a requirement that female athletes with high natural testosterone take drugs to lower it.

The South African double Olympic 800m champion, 32, had approached the European Court of Human Rights in February, 2021 after losing appeals to CAS, sport’s highest court, and the Swiss Federal Tribunal (SFT) in a long-running legal battle.

The ECHR ruled, by a slender majority of four votes to three, that Semenya’s original appeal against World Athletics regulations had not been properly heard.

“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,” ECHR said.

“The high stakes of the case for the applicant and the narrow margin of appreciation afforded to the respondent State should have led to a thorough institutional and procedural review, but the applicant had not been able to obtain such a review.”

Semenya may now be free to challenge, once again, rules that have left her career on hold. She has a medical condition known as hyperandrogenism, which is characterised by higher-than-usual levels of testosterone, a hormone that increases muscle mass, strength and haemoglobin, which affects endurance.

Under the rules, to compete in women’s events, athletes with differences in sexual development (DSD) that result in high testosterone levels must lower them to those of “a healthy woman with ovaries”.

They may take the contraceptive pill, have a monthly injection or undergo surgery to remove testes.

 Read more in Daily Maverick: Caster Semenya in race against time for Tokyo Olympics

World Athletics said it stood by its rules, which would remain in place for now.

“We remain of the view that the DSD regulations are a necessary, reasonable and proportionate means of protecting fair competition in the female category as the Court of Arbitration for Sport and Swiss Federal Tribunal both found, after a detailed and expert assessment of the evidence.”

Caster Semenya competes in the 800m heats at the London Olympics on 9 August 2012. (Photo: Ian MacNicol / Getty Images)

The Court of Arbitration for Sport ruled in 2019 that the global governing body’s rules were necessary for fair female competition.

At the time, Semenya said the rules were discriminatory, and contraceptive pills made her feel “constantly sick”. She lost her appeal to the SFT the following year to set aside the 2019 CAS ruling.

World Athletics have consistently said the regulations are aimed at creating a level playing field for all athletes.

Semenya won gold in the women’s 800 metres at the 2016 Games and is also a three-time world champion in the distance.

The regulations, initially applied to races of 400m to a mile, were expanded in March to include all female track events, preventing Semenya from relaunching her career by running longer distances. Reuters/DM


Comments - Please in order to comment.

  • Kanu Sukha says:

    I am not sure what the purpose of this article is ? It seems to state the obvious ! It is reminiscent of the type of argument in which if you are taller than a certain height … you can be excluded from playing basketball OR as this article implies, an athlete with lesser height can bring discrimination ‘charges’ against the taller ones ! An alternative way of understanding this is that in school sports where ‘age category rules’ are applied … they be done away with. Naturally, it goes without saying that obliging someone to take medication to ‘control’ a ‘condition’ is stupid if not abusive . Either you meet the ‘criteria/rules’ of a code of sport or you don’t. Inventing ‘exceptions’ is for philosophers ! Imagine a code with no rules ! The rest is pure philosophising.

  • David Edwards says:

    I wonder how the European men who hide behind platitudes of “level playing fields” would rule if they were born with lower levels of testosterone and small testes? Would they still think it fair to impose an arbitrary threshold of “healthy female with ovaries”? Does this mean a “healthy male with testes” should be the standard for what they are entitled to? Would they be open to measuring the size of their penis to determine if they qualify as men?

  • Steve Davidson says:

    It’s a pity, and I feel sorry for Semenya, but she should never have been allowed or encouraged to go into sport in the first place. Science shows she has a large and unfair advantage over the other runners. Back in the Soviet days, the East Germans, particularly, were banned for steroid and other male hormones because of the same advantage. So what’s the difference with her?

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