Champion runner Caster Semenya won a potentially landmark legal decision for sports on Tuesday when the European Court of Human Rights decided she was discriminated against by rules in track and field that force her to medically reduce her natural hormone levels to compete in major competitions.
But the two-time Olympic champion’s success after her two failed appeals in sports’ highest court in 2019 and the Swiss supreme court in 2020 came with a major caveat. The ruling didn’t strike down the rules and the world track and field body said soon after it was released that the contentious testosterone regulations would “remain in place.”
While the 32-year-old Semenya is fighting to be allowed to run again without restrictions, that might still take years, if it happens at all. It's unlikely she'd be able to go for another gold in the 800 meters at next year’s Olympics in Paris. Next month's world championships, where she has won three titles, are almost certainly not an option.
The South African athlete's legal challenge has taken five years so far and it could take equally as long for the process of rolling back the cases through the different courts.
Tuesday's ruling, although significant and a victory for Semenya, only opened the way for the Swiss supreme court to reconsider its decision. That might result in the case going back to the Court of Arbitration for Sport in Lausanne. Only then might the rules enforced by world track body World Athletics be possibly removed.
Still, Semenya's lawyers said the victory established an important principle.
“Caster has never given up her fight to be allowed to compete and run free,” Semenya’s lawyers said in a statement. “This important personal win for her is also a wider victory for elite athletes around the world. It means that sporting governance bodies around the world must finally recognize that human rights law and norms apply to the athletes they regulate.”
In a 4-3 ruling by a panel of judges, the Strasbourg, France-based human rights court said “serious questions” over the “validity” of the international athletics regulations were “left open” in Semenya's previous challenge at sports court CAS. In her second appeal, the Swiss supreme court had failed to respond to “serious concerns” of discrimination, the European rights court said.
Semenya has been barred by the rules from running in her favorite 800-meter race since 2019 because she has refused to artificially suppress her testosterone. She has lost four years of her career at her peak.
World Athletics showed no sign of changing its position in the wake of the verdict, saying two hours after it was released that the rules would stay.
“We remain of the view that the ... 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,” World Athletics said.
World Athletics also said it would be “encouraging” the government of Switzerland to appeal. Switzerland was the respondent in the case because Semenya was challenging her last legal loss in the Swiss supreme court. Switzerland's government has three months to appeal.
The Swiss government was also ordered to pay Semenya 60,000 euros ($66,000) for costs and expenses.
The ruling could ultimately have repercussions for other high-profile Olympic sports like swimming, which also has rules barring female athletes with high natural testosterone. Soccer, the world's most popular sport, is reviewing its eligibility rules for women and could set limits on testosterone.
While Semenya has been at the center of the highly emotive issue of sex eligibility in sports for nearly 15 years and is the issue's figurehead, she is not the only runner affected. At least three other Olympic medalists have also been impacted by the rules that set limits on the level of natural testosterone that female athletes may have. World Athletics says there are “a number” of other elite athletes who fall under the regulations.
There are no testosterone limits in place for male athletes.
Semenya's case is not the same as the debate over transgender women who have transitioned from male to female being allowed to compete in sports, although the two issues do have crossover.
Semenya was identified as female at birth, raised as a girl and has been legally identified as female her entire life. She has one of a number of conditions known as differences in sex development, or DSDs, which cause naturally high testosterone that is in the typical male range.
Semenya says her elevated testosterone should simply be considered a genetic gift, and critics of the rules have compared it to a basketballer’s height or a swimmer’s long arms.
While track authorities can't challenge Semenya's legal gender, they say her condition includes her having the typical male XY chromosome pattern and physical traits that make her “biologically male,” an assertion that has enraged Semenya. World Athletics says Semenya's testosterone levels give her an athletic advantage comparable to a man competing in women's events and there needs to be rules to address that.
Track has enforced rules since 2019 that require athletes like Semenya to artificially reduce their testosterone to below a specific mark, which is measured through the amount of testosterone recorded in their blood. They can do that by taking daily contraceptive pills, having hormone-blocking injections, or undergoing surgery. If athletes choose one of the first two options, they would effectively need to do it for their entire careers to remain eligible to compete regularly.
Semenya has fought against the regulations and has refused to follow them since 2019, saying they were discriminatory.
The European Court of Human Rights agreed and also said there was a violation of Semenya's right for her private life to be respected. It also found for Semenya on another point of her appeal, that she hadn't been given “effective remedy” for her claims of discrimination.
“Serious questions as to the validity” of the testosterone rules had been left unanswered, the rights court said, including over any side effects from the hormone treatment athletes would have to undergo, the difficulties in them remaining within the rules by trying to control their natural hormone levels, and the “lack of evidence” that their high natural testosterone actually gave them an advantage anyway.
That last point struck at the heart of the regulations, which World Athletics has always said is about dealing with the unfair sports advantage it says Semenya has over other women.
Going against the international track body, South Africa's national track federation said it was “delighted” with Tuesday's verdict.
The rules have been made stricter since Semenya launched her case at the European rights court and athletes now have to reduce their testosterone level to an even lower mark. The updated regulations also apply to every event and not just Semenya's favored race range between 400 meters and one mile, which they did previously.
Semenya won gold in the 800 meters at the 2012 and 2016 Olympics but was prevented from defending her title at the Tokyo Olympics in 2021 because of the regulations.
