04 Aug The European Court of Human Rights in the Caster Semenya Case: Opening a New Door for Protecting the Rights of Persons with Variations of Sex Characteristics and Human Rights in Sports
[Dr Lena Holzer (she/her) is a Lecturer in Law at Goldsmiths, University of London, and focuses in her research on gender justice, human rights and sports]
The Caster Semenya case is undoubtedly the most famous international sports law case. It has attracted the attention of human rights lawyers, gender studies experts, activists and lay persons, next to sport lawyers. The case has reached its almost final stage with the judgment by the European Court of Human Rights (ECtHR) published on 11 July 2023, but its significance in shaping sports law and legal protections of intersex persons will be long-lasting.
After briefly outlining the facts of the case and the judgment of the ECtHR, I will focus in this blog post on two aspects of the most recent decision. Firstly, I will discuss its consequences for the prohibition of discrimination against intersex persons. Secondly, I will analyse the lacuna in the international sports law system that was highlighted by the decision of the ECtHR. The concluding reflections will touch upon shortcomings of the decisions and provide an outlook. This post complements my analysis of previous decisions in the case by the Court of Arbitration for Sport (CAS) and the Swiss Federal Tribunal (SFT).
Facts of the Case
At the heart of the Caster Semenya case lies the question of whether international sports federations, such as World Athletics, may exclude women with variations of sex characteristics from women’s sports events because their natural testosterone levels exceed a certain threshold. Mokgadi Caster Semenya, an elite South African athlete specialised in middle-distance running, challenged the so-called “DSD Regulations” by World Athletics. Based on these regulations, she and other women were forced to lower their testosterone levels through hormone treatment to less than 5 nmol/L serum to be able to continue to compete in athletic events. Due to similar rules that were in place previously, Semenya had already been compelled to undertake hormone treatment after she won the 800-meter sprint World Championship in Berlin in 2009. She refused to do so again and thus decided to challenge the DSD Regulations at the CAS.
In April 2019, the CAS found in a majority decision in favour of World Athletics. It rejected Semenya’s request for arbitration holding that the DSD Regulations are “proportionate, necessary and reasonable” (see Executive Summary and full award). Semenya’s claim that the DSD Regulations constitute discrimination and violations of bodily integrity was thus dismissed by the majority of the CAS panel.
As a next step, Semenya brought the case to the SFT, which had the power to set aside the CAS Award if it had violated Swiss public policy (PILA Art 190(2(e)). The SFT upheld the Award in August 2020 by arguing that “the CAS has comprehensively examined the Caster Semenya case”. It rejected Semenya’s claim that the CAS Award violated her right to non-discrimination, personality rights and human dignity as encompassed by the principle of public policy (§9.4, 10.1, 11).
As the SFT validated the CAS Award, Semenya could bring a case against Switzerland to the ECtHR. In a rather uncommon expedient procedure, the ECtHR issued its ruling in Semenya v Switzerland (2023) last week.
The ECtHR’s Judgment in a Nutshell
The ECtHR upheld several of Semenya’s challenges. It concluded in a majority decision (4 votes to 3) that Switzerland had violated the European Convention on Human Rights (ECHR) by failing to protect Semenay’s right to non-discrimination (Art. 14) taken together with the right to private life (Art. 8). In addition, it also found a violation of the right to an effective remedy (Art. 13) in relation to Article 14 taken together with Article 8. Both of these violations were caused by a lack of “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”.
Yet, the ECtHR also rejected some of Semenya’s claims. It decided not to provide a separate ruling on the complaints under Article 8 taken alone or under Article 6. Moreover, it declared the complaints under Article 3 as inadmissible because of being manifestly ill-founded.
The Prohibition of Discrimination Based on Sex Characteristics
In addition to being a personal victory for Caster Semenya, the ECtHR’s judgment could become a landmark decision in the fight for the rights of intersex persons. The Court recognised for the first time that discrimination based on sex characteristics is prohibited by Article 14. It can be interpreted as falling under the non-discrimination ground of “sex” as listed in Article 14 and under the ground of “genetic characteristics”, which previous judgments have recognised as covered by Article 14 (§158).
Another significant take away from the ECHR’s decision is its consideration of the athletes’ right to bodily integrity. The Court, unfortunately, refused to issue a separate ruling on Article 8, which also ensures the protection of the right to bodily integrity. Nevertheless, it pointed out that the SFT and the CAS failed to seriously consider the severity of the side effects that the hormone treatment prescribed to comply with the DSD Regulations can cause. It stressed that the DSD Regulations did not offer a “real choice” to the athletes concerned. They either have to take the prescribed hormone treatment, which could impair their physical and psychological integrity, or they lose the possibility to practice their profession (§185-190). The Court’s recognition that forced hormone treatment can hamper the right to bodily integrity of intersex persons is a welcomed step in the right direction, since the core demand of the international intersex movement is to protect the bodies of intersex persons from medically unnecessary interferences.
Yet, despite recognising the relevance of the right to bodily integrity and that discrimination against intersex persons is covered by the ECHR, the Court refrained from reaching a definite conclusion on whether the DSD Regulations constitute discrimination. Instead, it focused on the absence of procedural and institutional safeguards to ensure Semenya’s protection from (potential) discrimination, thus emphasising Switzerland’s obligation to address horizontal discrimination. The Court clarified that discriminatory treatment against athletes like Semenya by international sports federations, which are private organisations, is covered by the prohibition of discrimination of Article 14. Consequently, it held that the SFT did not satisfy Switzerland’s obligation to ensure the mechanisms necessary to remedy discrimination against sportspeople committed by sports federations (§195).
While the ECTHR thus highlighted the lack of safeguards to address discrimination, it also hinted at the possibility of the DSD Regulations constituting discrimination. Apart from noting the significant side effects caused by the hormone treatment prescribed to lower testosterone levels, it stressed that any differentiation in treatment based on sex must be justified by “very weighty reasons”. In this regard, it highlighted the absence of sufficient scientific evidence supporting the exclusion of women with testosterone levels above the threshold, under the pretext of promoting “fairness” (§179-184, 200-201). In addition, the ECtHR pointed out that DSD Regulations involved high personal stakes since they jeopardised Semenya’s possibility to practice her profession (§201). These concerns highlight the problematic nature of the DSD Regulations and similar or even more restrictive rules that are increasingly adopted by sport federations (e.g. FINA 2022 pp. 7-8), indicating their incompatibility with human rights.
A Lacuna in the International Sports Law System
The decision by the ECtHR in the Caster Semenya case is also historic since it might lead to reforms in the dispute settlement mechanisms in international sports. By holding that Switzerland failed to provide procedural and institutional safeguards to protect Semenya’s right to non-discrimination, the ECtHR determined that there is a lacuna in the human rights protection of international athletes. Hence, Switzerland is compelled to make changes to the review of CAS Awards at the SFT.
As noted by the ECtHR, the power of the SFT to set aside CAS Awards is quite limited, which prevented the SFT to comprehensively analyse the compatibility of the DSD Regulations with the ECHR. Based on the Swiss Private International Law Act, the SFT can set aside international arbitral awards only if they show certain procedural shortcomings or if they violate Swiss public policy (PILA Art. 190(2)). Swiss courts have construed the notion of Swiss public policy very narrowly and it is almost impossible to get CAS Award overturned because of violating public policy. Data shows that the SFT did not set aside a single CAS Award based on the principle of public policy between 1989 to 2019 (p. 13).
Yet, the fact that Swiss domestic legislation provides the SFT only with limited jurisdiction over CAS Awards does not alleviate Switzerland from its obligations to comply with the ECHR. The Semenya decision confirmed what the EctHR already indicated in Pechstein and Mutu v. Switzerland (2018): Switzerland can be held accountable for violations of the ECHR if the SFT fails to analyse – and remedy – incompatibilities of (certain) CAS Awards with the ECHR.
Hence, there is a lacuna between Switzerland’s international obligation of protecting sportspeople from discrimination and Switzerland’s domestic law allowing only a limited review of CAS awards. The ECtHR did not specify how to exactly remedy this lacuna.
In the future, the SFT will likely need to expand its understanding of “public policy” if it wants to avoid Switzerland being found in breach of the ECHR in similar cases. Another possibility is that the Swiss legislators amend the Private International Law Act to broaden the jurisdiction of the SFT in the review of arbitral awards. The ECtHR also reprimanded the fact that the CAS Award itself did not refer to the ECHR, even though it used the language of “proportionality, necessity and reasonableness”, which reflects the approach taken by the ECtHR (§174). This suggests that the CAS could prevent Switzerland from being held accountable for violations of the ECHR if it conducts a thorough human rights analysis in accordance with the ECHR itself.
The decision of the ECtHR was an important win for Semenya and other sportswomen with variations of sex characteristics. It sets a signal that the rights of intersex persons, including their right to non-discrimination and bodily integrity, are protected by the ECHR while remedying some of the specific violations that Semenya experienced. Moreover, it will likely lead to structural reforms in the adjudication of disputes in international sports law, hopefully making human rights a substantive part of the CAS’ and the SFT’s decisions.
Yet, the ECtHR’s decision also comes with shortcomings. As Judge Serghides held in his concurring and partly dissenting opinion, the Court missed an opportunity to remedy violations that occured under Articles 3 and 8 independently. By focusing on the absence of procedural and institutional safeguards for the protection of non-discrimination, the majority of the ECtHR judges deflected from the grave physical and psychological harms that rules like the DSD Regulations inflicted on Semenya and other women. It did not properly consider that the DSD Regulations imply forced medical treatment, which the Court previously declared as violations of Articles 8 and 3 (p. 101ff). This would have more comprehensively recognised the harms done by the DSD Regulations and the lack of remedy to challenge such rules.
Moreover, the ECTHR’s judgment unfortunately reproduced harmful assumptions regarding transgender persons. Intersex persons are often confounded with transgender persons, even though the lived realities and human rights demands of these two groups are different albeit overlapping. Due to this mixing up, the ECtHR clarified in the judgment that Semenya is not part of the group of transgender athletes, which helped to establish the facts of the case. Yet, the language and assumptions reflected in the Court’s discussion on transgender athletes, as well as the choice of sources cited, were a disappointing side-effect of an otherwise welcomed judgment from the perspective of gender justice (§69-70, 198).
The Caster Semenya case is not entirely final, since it could still be referred to the Grand Chamber of the ECtHR. World Athletics has announced to keep in place its current version of the DSD Regulations, which are even more restrictive than those that Semenya challenged. This means that Semenya and other affected sportswomen will not be able to return to the track immediately but hopefully in the soon future.