Seoul Gazette - Semenya's human rights violated by Switzerland, European rights court rules

The 32-year-old South African appealed to the Strasbourg-based ECHR after the Swiss supreme court rejected her appeal against World Athletics' rules that she must take medication to lower her testosterone levels if she wishes to continue competing.

Semenya, who is classed as having "differences in sexual development (DSD)" but has always been legally identified as female, has refused to take the drugs since the international federation introduced the rules in 2018.

As a result, she has been barred from competing at her favourite distance of 800m.

In her long-running legal battle, Semenya lost an appeal to the Court of Arbitration for Sport, and three years ago Switzerland's supreme court confirmed the decision of sport's top court.

Semenya then took her case against Switzerland to the France-based ECHR.

The seven ECHR judges found by a majority of four to three that Semenya’s rights under Article 14 of the European Convention on Human Rights, which concerns discrimination, had been violated by Switzerland.

The ECHR also found the Swiss state had violated Article 13 by failing to give Semenya effective remedy against discrimination.

In its ruling on Tuesday, the court said: "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."

The ruling in Semenya's favour is largely symbolic as it does not call into question the World Athletics ruling and does not pave the way for her to return to competition without taking the medication.

Semenya won Olympic gold at the 2012 London Games and at Rio in 2016 and collected world titles in 2009, 2011 and 2017.

- Rules 'necessary and reasonable' -

World Athletics described the ECHR chamber as "deeply divided" and said the DSD rules would remain in place.

The federation said it would now liaise with the Swiss government on the next steps and, "given the strong dissenting views in the decision, we will be encouraging them to seek referral of the case to the ECHR Grand Chamber for a final and definitive decision".

World Athletics added: "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."

Athletics South Africa said the judgement "vindicated" its view that the DSD regulations "were ill-conceived, did not have a proper scientific basis and were highly discriminatory".

World Athletics introduced the DSD regulations to create a level playing field in women's events ranging from 400m to one mile. Semenya was forced to move up to the 5,000m, a distance in which she failed to reach the final at last year's world championships in Eugene.

In March this year, the federation amended the rules. DSD athletes now have to reduce their amount of blood testosterone to below 2.5 nanomoles per litre, down from the previous level of five, and remain below this threshold for two years.

World Athletics also removed the principle of restricted events for DSD athletes, meaning regulations now cover all distances rather than the previously monitored ones.

O. Joergensen--BTZ