Due to birth defects in his sexual development, the 32-year-old South African is not permitted to participate in any track competitions without using testosterone-suppressing medication.
Semenya, a three-time world champion in the 800 meters and a Commonwealth winner in the 800 and 1500 meters, has been at odds with World Athletics for a very long time.
The regulating body enacted rules mandating her to receive hormone therapy in 2018. Semenya has attempted to get the ruling overturned in court twice without success.
However, the lawsuit at the ECHR was primarily against the Swiss government for failing to defend Semenya’s rights and dates back to a Swiss Supreme Court decision three years ago. It was not against sporting bodies or DSD rules.
In a long ruling released on Tuesday, the ECHR determined that Semenya was not protected from discrimination by the Swiss government when that country’s Supreme Court declined to overrule a ruling by the Court of Arbitration for Sport (Cas), which upheld the World Athletics regulations.
In a prior decision, Cas found that testosterone restrictions for athletes like Semenya were discriminatory, but that the restrictions were “necessary, reasonable, and proportionate” to safeguard “the integrity of female athletics.”
Although Semenya’s long-held belief that she has been the victim of discrimination would seem to be supported by the verdict, it is unclear whether or how the court’s ruling will affect the current limits on DSD athletes.World Athletics has reaffirmed its stance in support of safeguarding fair competition in the female division and is eager for the Swiss courts to appeal the ECHR ruling.
A three-month window exists for filing an appeal. If Semenya wants to compete, she will be in a similar situation to before the ECHR decision unless she takes testosterone-suppressing medication or World Athletics is forced to change its policy regarding DSD athletes, and it’s not clear how that could happen.
She is still unable to participate in female track events as things are.
Semenya, according to a statement from the ECHR, “had not been afforded sufficient institutional and procedural safeguards in Switzerland” to enable her to “have her complaints examined effectively, especially since her complaints concerned substantiated and credible claims of discrimination as a result of her increased testosterone level caused by differences of sex development.”
According to the EHCR judgement, the DSD rules of World Athletics were “incompatible with the European Convention on Human Rights” and “a source of discrimination” for Semenya “by the manner in which they were exercised and by their effects.”
Semenya may now dispute the decisions of the Swiss Supreme Court or Cas after a panel of seven judges at the ECHR decided 4-3 in her favor.
World Athletics sent the matter to the ECHR Grand Chamber for a “final and definitive decision” and characterized the ECHR chamber as “deeply divided” in its statement.”We continue to believe that the DSD regulations are a necessary, reasonable, and proportionate means of preserving fair competition in the female category, as the Court of Arbitration for Sport and Swiss Federal Tribunal both found, following a thorough and knowledgeable evaluation of the evidence,” said World Athletics.
On the following steps, we will coordinate with the Swiss government. The World Athletics Council adopted the current DSD rules in March 2023, thus they will continue to be in effect during this time.
Athletics South Africa said in a statement that the decision “vindicated” its view that the DSD guidelines in place were “ill-conceived” and that it will seek legal counsel over the implications for Semenya’s potential future participation in athletics.
Athletes with DSD were only permitted to compete in track events between the 400m and the mile under rules that went into effect in 2018 if they decreased their testosterone levels.
However, as of March, DSD competitors must now undergo hormone-suppressing therapy for six months in order to be qualified to compete in all events, according to a World Athletics ruling.
Semenya participated in the 5,000-meter race at the 2017 World Championships in Oregon, but she was unable to get to the final.
She has contended that the decision denied her and other athletes with DSD the right to rely on their innate abilities and that using testosterone-reducing medicine could damage their health.
Because of the decision, she was unable to defend her 800m crown at the Tokyo Olympics, which were held in 2021 rather than 2020 as originally scheduled.
Semenya, who has always been legally recognized as a woman, has argued that even if her testosterone levels are higher than those of her rivals, she should be permitted to compete in women’s events.
She claimed to have been “crucified” but will “never stop fighting” against the rules imposed by World Athletics, formerly known as the IAAF, in 2019, telling BBC Sport that she had been “crucified.”
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