Semenya v Switzerland: Divided ECtHR Significantly Advances the Human Rights Protection for Intersex Athletes (and all professional sportspeople in general) – Part II

by | Aug 23, 2023

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About Pieter Cannoot

Pieter Cannoot is an assistant professor of law and diversity at Ghent University (Belgium). He obtained his PhD in 2019 with a thesis on the autonomy rights of LGBTIQ peopleTogether with his colleagues at the Human Rights Centre, he regularly intervenes as a third party before the European Court of Human Rights.

Part I of this blog (available here) discussed the facts of the case and laid down the jurisdiction issue. Part II continues the discussion on procedural view and elaborates on why this judgment matters.

A procedural review with clear material implications

The Court addressed the case through the prism of the prohibition of discrimination (Article 14 ECHR), read together with the right to respect for private life (Article 8 ECHR). According to the Court, it was clear that the case fell within the ambit of Article 8 life (paras. 121-127). Indeed, Semenya was confronted with an impossible dilemma: either taking contraceptives to exercise her profession and giving up her right to bodily integrity (protected under Article 8 ECHR) or refusing to undergo medical treatment to reduce her level of testosterone and giving up her right to exercise her professional activities (equally protected under Article 8 ECHR).

For the first time, the Court found that Article 14 also covers a prohibition of discrimination based on ‘sex(ual) characteristics’ (para. 158). Since the applicant was in a comparable situation to that of other female athletes and she was subjected to a differential treatment (paras. 160-162), the Court reviewed whether Switzerland had fulfilled its positive obligation to offer sufficient institutional and procedural safeguards for an effective examination of Semenya’s discrimination claim (para. 166). In this light, it pointed out that the State only enjoyed a narrow margin of appreciation, since a differential treatment on the basis of ‘sex(ual) characteristics’ can only be justified by very weighty reasons (equally a novelty in the Court’s case law), and a particularly important facet of identity was at stake (para. 169).

Even though the CAS had ruled that the DSD regulations were necessary, reasonable, and proportionate, the Court attached particular importance to serious concerns expressed by the CAS in three respects: the significant side-effects of hormonal treatment (paras. 185-190), the potential inability of an intersex athlete to comply with the regulations despite their good intentions (para. 181), and the fact that the available scientific evidence backing the DSD Regulations was sparse (paras. 179-184). Although the decision by the CAS was detailed, it had not referred to the ECtHR’s case law under Article 14 ECHR (para. 174). Moreover, by only providing a very limited review, the Swiss Federal Tribunal had failed to sufficiently address the concerns expressed by the CAS, taking into account the requirements of Article 14 ECHR. In view of the power imbalance between athletes and sports governing bodies (para. 177), the high personal stakes involved for the applicant (para. 201), and the narrow margin of appreciation, the Court ruled that Semenya did not enjoy sufficient institutional and procedural safeguards for the effective examination of her credible and substantiated claim of discrimination, resulting in a violation of Article 14 ECHR read together with Article 8 ECHR.

Why this judgment matters

At first sight, this judgment only seems to have direct impact for Switzerland. It is clear that the Court took serious issue with the limited scope of the review performed by the Swiss Federal Tribunal of the decision adopted by the CAS. Based on this ruling, from now on the Tribunal will need to interpret “Swiss public policy” as including the human rights standards set in the ECHR and the ECtHR’s case law, including under Article 14. In this way, the Court also reaffirms its previous case law on the positive obligations of States under the ECHR to provide real and effective protection against discrimination, even in horizonal relations between private parties.

However, this judgment also – albeit indirectly – impacts on sports governing bodies that include mandatory arbitration before the CAS in their regulations, as well as the CAS itself. Indeed, it is noteworthy that the ECtHR pointed out the lack of any reference to ECHR standards in the CAS ruling (para. 174). It thus appears that the Court expected both the Swiss Federal Tribunal and the CAS to rigorously review whether the DSD Regulations were in conformity with the prohibition of discrimination included in the ECHR. In this way, a stronger engagement with the ECHR by the CAS could have reduced the procedural obligations on Switzerland to ensure the effective respect for the ECHR in a horizontal relation. In other words, since the CAS is the world-leading authority for deciding on disputes between professional athletes and sports governing bodies, the Semenya judgment might de facto result in sports governing bodies (based in Europe and potentially across the globe) now having to comply with the ECHR in designing their internal regulations.

Moreover, even though the Court did not review the DSD Regulations as such, the judgment clearly indicates that the majority considered the Regulations to be discriminatory on grounds of sex characteristics (note that concurring Judge Serghides considered them also to be a violation of Articles 3 and 8). It is particularly noteworthy that the Court attached importance to the potential side-effects of (compulsory) hormonal treatment and the lack of scientific evidence for the DSD Regulations. Several human rights actors and scholars have argued before that, under a human rights analysis, these factors should indeed tilt the balance in favour of intersex athletes (see the work of the third party interveners in the case). While it is not for a supranational human rights court to impose a solution for the challenges that the world of sports is currently facing, the ECtHR made clear that any way forward will have to comply with human rights law.

It remains to be seen whether the judgment will have any long-term impact. Not only has World Athletics announced that it will continue to enforce the DSD Regulations, it has also called for a referral to the Grand Chamber.

Pieter Cannoot collaborated on Ghent University’s third party intervention in the Semenya case.

Want to learn more?

Read: The Forgotten I in LGBTQIA+: ECtHR Turns its Back on Intersex People

Read: New Frontiers of LGBTQ+ Liberation

Read: Transgender Laws in Transition: European Courts on Non-Binary Gender Recognition

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