EXPLAINED - Lawsuit against Switzerland: Former athlete Caster Semenya celebrates partial success in Strasbourg

She is South African, lives in South Africa, and has no personal ties to Switzerland. Nevertheless, former middle-distance runner Caster Semenya filed a lawsuit against Switzerland before the European Court of Human Rights (ECHR) and was partially successful. The Grand Chamber of the ECHR ruled, by 15 votes to 2, that the Federal Supreme Court in Lausanne violated Caster Semenya's right to a fair trial. Switzerland must pay her €80,000 for her expenses. However, the Court rejected Semenya's main complaint that the testosterone rule discriminated against her.

Background: In April 2018, World Athletics, the world governing body for athletics, issued new regulations governing the conditions under which athletes with sexual developmental abnormalities like Semenya are allowed to participate in international women's competitions. The regulations require affected athletes to take medication to lower their testosterone levels. Because Semenya refused to undergo such treatment, she was no longer able to participate in international competitions.

Semenya, now 34 years old and retired from competitive sport, unsuccessfully appealed the regulations to the Court of Arbitration for Sport (CAS) in Lausanne. The court essentially concluded that the eligibility requirements were necessary, reasonable, and proportionate. The Federal Supreme Court upheld the decision. It could not freely review the Court of Arbitration for Sport's ruling, but was required by law to limit its review to the question of whether the decision violated fundamental and widely recognized principles of the legal order, known as public policy. This was not the case, the Federal Supreme Court concluded. "Fairness in sporting competition is a legitimate concern and constitutes a central principle of sport," the Federal Supreme Court stated in its 2020 ruling.

Semenya rejected the decision and filed a complaint with the European Court of Human Rights (ECHR). There, she argued, among other things, that she was being discriminated against as a woman with naturally elevated testosterone levels and that her dignity had been violated. A division of the Strasbourg court ruled in her favor in 2023 and reprimanded Switzerland.

The Federal Council disagreed with this ruling. It brought the case before the Grand Chamber in Strasbourg, arguing, among other things, that the case, or rather the testosterone rule in question, had nothing to do with Switzerland. The only relevant point was the fact that the sports tribunal was based in Lausanne and the arbitration proceedings had been conducted there. The facts in question had taken place entirely outside of Switzerland.

The Grand Chamber acknowledged Switzerland's objections but nevertheless reached a different conclusion. Semenya's filing an appeal against the CAS decision with the Federal Supreme Court created a legal connection with Switzerland. The Federal Supreme Court was therefore obligated to guarantee the athlete a fair trial. A structural imbalance exists between athletes and governing bodies, which requires a particularly rigorous judicial review of her case. The Federal Supreme Court limited itself to a public policy review, which was insufficient.

The ruling is a partial victory for Semenya. The Court did not criticize the testosterone rule itself. Regarding the athlete's allegation of discrimination, the ECHR does not consider Switzerland to have jurisdiction.

Caster Semenya is a former middle-distance runner. She was born on January 7, 1991, in the Limpopo province of northern South Africa and grew up in poverty. Her athletic talent became apparent at an early age. In 2009, at the age of 18, she first attracted international attention. At that time, she surprisingly became the 800-meter world champion in Berlin. Semenya later won gold medals in the same event at the 2012 Olympic Games in London and the 2016 Olympic Games in Rio de Janeiro.

But her sudden rise quickly fell into the shadow of a debate that extended far beyond sport.

During the 2009 World Championships, World Athletics, then known as the International Association of Athletics Federations (IAAF), ordered several tests to verify Semenya's gender. The medical tests and their media coverage sparked outrage worldwide. Thus began one of the most controversial cases in modern sports history.

Semenya grew up as a woman, was socialized as such, and is also listed as a woman according to her passport. However, due to a birth anomaly, she has male XY chromosomes—biologically, Semenya is a man and is therefore considered intersex. These anomalies are collectively known as DSD syndrome.

The problem in sports: Female athletes like Semenya have elevated testosterone levels in their blood. The male sex hormone has been proven to enhance performance. Various studies demonstrate a 5 percent advantage over biological women in running competitions and an even greater discrepancy in throwing and jumping events.

Sport is still seeking universally accepted rules for dealing with intersex athletes. In Semenya's case, World Athletics ordered a gender test and a ban from competing after her 2009 World Championship title. The results were never officially released, but it was leaked that Semenya suffers from DSD syndrome. Despite this, she was allowed to compete in the women's event again the following year.

World Athletics introduced a testosterone cap in women's categories in 2014. Intersex athletes had to lower their testosterone levels with medication or surgery, such as taking the contraceptive pill. However, recent scientific studies have shown that certain physical advantages persist after male puberty—despite lower testosterone levels.

World Athletics will therefore abolish this rule in the near future. President Sebastian Coe announced last spring that anyone wishing to compete in the women's category in the future would be required to undergo a one-time DNA test to determine their biological sex. This also applies to athletes whose biological sex is undisputed. World Athletics is the first governing body of an Olympic sport to introduce these serial tests.

In 2018, Semenya challenged World Athletics' rules before the Court of Arbitration for Sport (CAS) in Lausanne. She felt her rights had been violated. She refused hormone therapy to lower her testosterone levels.

Semenya stated that she was born a woman, had never doped, and had not violated any rules. Exclusion from competition solely because of her natural physical characteristics was inadmissible. She argued that it was not just about her career, but about the right of all female athletes to be treated fairly, regardless of genetic or hormonal characteristics.

The CAS rejected the appeal. The court ruled that a testosterone cap was legitimate, even if it was discriminatory against intersex people. Semenya appealed to the Federal Supreme Court, but also lost.

Finally, in 2021, Semenya filed a complaint with the European Court of Human Rights (ECHR). In 2023, the court ruled that Semenya had been discriminated against by the association's rules. However, only four of the seven judges agreed. Due to the narrow majority, the Swiss federal government requested a new hearing before the 17-judge Grand Chamber.

The court concluded that Semenya's human right to a fair trial had been violated by Switzerland. It left the controversial testosterone rules untouched.

The ECHR's final ruling opens the door for Semenya to bring her case before the Swiss courts again, with the stipulation that this time it must be examined thoroughly and fairly. However, World Athletics' testosterone rule remains in effect. Intersex athletes may continue to participate in international races between 400 meters and one mile only if they lower their testosterone levels with medication.

Nevertheless, the ruling represents a legal milestone for Caster Semenya. It strengthens the rights of athletes with gender differences. And it sets a standard for how sports courts and national authorities must adhere to humanitarian and procedural standards.