Legal protection of athletes: Semenya is only partially right before the Court of Justice

The two-time 800-meter Olympic champion Caster Semenya has not fully prevailed in the legal marathon against the testosterone regulations of the World Athletics Association at the European Court of Human Rights (ECHR). The judges in Strasbourg found that the South African was violated by Switzerland in her human right to a fair procedure. The court appealed to her 80,000 euros for costs and expenses.

However, the court left the controversial testosterone rules untouched. The big chamber found when the verdict was noted that there was no territorial relationship between Switzerland and Semenya on this question because the dispute over an international regulation of the World Athletics Association revolved.

Unsuccessful complaints in Switzerland

The three -time world champion had resisted the provisions of World Athletics, according to which she had to carry out hormone treatment to reduce her natural testosterone level to participate in international competitions. In addition, the 34-year-old, who has ended her career, unsuccessfully sued the CAS International Sports Court in Lausanne in Switzerland and the Swiss Federal Supreme Court.

Semenya has repeatedly emphasized that she was a woman. According to her autobiography, she has no uterus and no fallopian tube. After the 2009 World Championships in Berlin, she had had to undergo a gender test. She was present when the judgment was announced.

The first judgment was a little different

This time the court was made a different decision than in the previous instance in 2023. At that time, the ECHR had judged that Semenya had been discriminated against by the association rules. However, only four of the seven judges had agreed. Due to the narrow majority, the Swiss federal government had applied for a new negotiation before the 17-member large chamber. Your judgment is now final. The ECHR has now decided that Semenya’s rights had not been thoroughly checked in Switzerland.

Default of the Swiss Federal Court

The background to this is that athletes can only act to a limited extent against judgments of the CAS. The Swiss Federal Supreme Court only checks whether there were procedural errors in front of the sports court. According to the human rights court, this specialty requires “a strict judicial review that is appropriate to the seriousness of the personal rights concerned.” The Swiss court in Semenya’s case would have failed. When announced, there was a structural imbalance between the athletes and the organizations for whom the disciplines were subject to jurisdiction in sport.