Should women with variations of sex characteristics be excluded from professional women’s sports competitions?
In recent years, this question has spurred considerable controversy around the globe. In July 2023, the European Court of Human Rights (‘ECtHR’) entered the discussion by delivering its much anticipated judgment in the case of athlete Caster Semenya against Switzerland. With a 4-3 majority, the Court’s third section ruled that Switzerland violated Article 14 of the European Convention on Human Rights (‘ECHR’)(read together with Article 8 of the Convention), as well as Article 13 of the Convention (not further addressed in this post). The Court found in particular that Semenya had not been afforded sufficient institutional and procedural safeguards before the Swiss Federal Tribunal that would have allowed an effective examination of her substantiated and credible claim of discrimination on grounds of her sex characteristics. With the important judgment, the Court not only clarified Convention standards in relation to female professional athletes who have a variation in their sex characteristics, but also to what extent autonomous sports governing bodies have to comply with human rights law, and the ECHR in particular.
DSD Regulations upheld before CAS and Swiss Federal Tribunal
The facts of the case are well known. Mokgadi Caster Semenya is a South African professional athlete who dominated her sport for a number of years, winning two Olympic gold medals and three World Championships in the women’s 800m. Already early on in her career, Semenya’s dominance attracted attention and suspicion, particularly regarding the composition of her sex characteristics. After being subjected to a sex verification test, it was revealed that Semenya was born with a variation in her sex characteristics (also called Difference in Sex Development/DSD or intersex condition), leading to a naturally elevated level of testosterone in comparison with other female athletes without such variation. To preserve fair competition and a level-playing-field, World Athletics adopted so-called ‘DSD Regulations’. Based on the (current) DSD Regulations, women athletes with a condition that leads to levels of testosterone beyond the ‘normal’ female range, are excluded from participating in the women’s competition in middle-distance events, unless they have reduced their level of testosterone to below five nmol/l for a continuous period of at least six months and as long as they want to remain eligible to compete. Any relevant athlete has the duty to inform World Athletics when they might have such variation and can be asked to undergo testing on a suspicion-based model. While no athlete may be forced to undergo testing or certain forms of treatment, all relevant athletes have a duty to cooperate in good faith and will be excluded from competition if they fail to reduce their level of testosterone to the required level or do not cooperate. The affected athletes can reduce their testosterone level by taking hormonal contraception or by undergoing a gonadectomy.
Semenya has strongly and publicly objected to the DSD Regulations and challenged them before the Court of Arbitration for Sport (CAS), which is based in Switzerland. In 2019, the CAS found that the Regulations were prima facie discriminatory on the basis of sex and ‘immutable biological characteristics’, but necessary, reasonable and proportionate to ensure fairness in professional women’s competitions. Semenya appealed before the Swiss Federal Tribunal, which – on the basis of the Swiss Private International Law – has the competence to set aside a decision by the CAS if, inter alia, it violates Swiss public policy. Based on a limited review, the Tribunal upheld the decision by the CAS. Before the ECtHR, Semenya claimed that the DSD Regulations set by World Athletics violate several ECHR provisions, such as the prohibition of torture and inhuman or degrading treatment (Article 3 ECHR) and the right to respect for private life (Article 8 ECHR), taken alone and in combination with the prohibition of discrimination (Article 14 ECHR).
Jurisdiction of the ECtHR
Semenya’s case before the ECtHR attracted significant attention, not only because of the contentious debate on the integration of intersex and transgender athletes (not further addressed in this post) in binary sports competitions, but also because of its potential impact on the relation between autonomous sports governing bodies, such as World Athletics, and the ECHR. As will be explained below, the Court’s judgment indeed not only advanced the human rights protection for professional intersex athletes, but arguably also for all professional sportspeople worldwide.
The Court first had to decide whether it had jurisdiction to deal with Semenya’s application. As appears from the opinion of the three dissenting judges, this issue was not a self-evident hurdle to take. Indeed, Semenya is a South African national living in Pretoria, who is essentially challenging the validity of regulations set by a private organisation that falls under Monegasque law in a case against Switzerland, a country that only intervened through a judicial review with a limited scope (in which the Swiss Federal Tribunal not even applied Convention standards). However, the Court was particularly mindful of the vulnerable position in which professional athletes find themselves: in the face of compulsory arbitration and powerful sports organisations, athletes – such as the applicant – have only one remedy available to challenge the compatibility of sports regulations with human rights. Barring access to Strasbourg for professional athletes would not be in keeping with the spirit, object, and purpose of the ECHR.
A procedural review with clear material implications
Nevertheless, it appears that the majority was mindful of the limited intervention of the respondent State in the entire case. Indeed, the Court noted that Switzerland had played no part in the adoption of the DSD Regulations and therefore confined its examination to a procedural review of the judgment delivered by the Swiss Federal Tribunal (para. 80). This preference for a procedural review probably also explains why the majority was not willing to review the DSD Regulations under Articles 3 and 8 ECHR, unconvincingly (as noted by concurring Judge Serghides) finding the claims under these provisions respectively manifestly ill-founded (as Semenya had in fact not undergone hormonal treatment and medical investigations, see paras. 215-217) and not warranting separate discussion (paras. 203-205).
See Part II for why this judgment matters.
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