Champion runner Caster Semenya is “elated” at the ruling by the European Court of Human Rights in her favour in her legal battle against track and field rules that force her to suppress her natural testosterone to compete, she said in a statement Wednesday.
But while Tuesday’s ruling found that the two-time Olympic champion in the 800 metres had been discriminated against, the court didn’t strike down the contentious athletics regulations.
That meant no immediate return to the track for the 32-year-old South African, who has been barred from her favourite event for the last four years.
“Justice has spoken but this is only the beginning,” Semenya said in a statement released through her lawyers. She said the court decision “will still be significant for all sportspersons in throwing doubt on the future of all similar rules.”
The European Court of Human Rights court found that Semenya had valid claims of discrimination for being forced by track and field’s governing body to medically suppress her hormone levels if she wants to run in women’s races at the Olympics, world championships and other top meets.
The rights court said that previous decisions by the Court of Arbitration for Sport in 2019 and Switzerland’s supreme court in 2020 also didn’t deal with “serious questions” over the rules when they rejected Semenya’s appeals.
Questions, the court said, like possible side effects for athletes taking near-constant medication to suppress their hormones, the difficulties athletes face in keeping their natural testosterone below a prescribed level, and the possible lack of scientific evidence that the testosterone does provide an unfair athletic advantage.
Semenya has refused to follow the rules since 2019 and has not been allowed to compete at elite events in the 800 metres, where she won Olympic gold in 2012 and 2016. She didn’t defend her title at the last Olympics in 2021 because of the rules.
But there is still a long legal process ahead for Semenya if the rules enforced by track body World Athletics are to be overturned.
The case would first need to go back to the Swiss supreme court. It only then might go back to sport’s highest court, where the rules could be suspended, as they previously were in 2015 in a different athlete’s case before being reinstated in 2019.
Seema Patel, an associate professor in law at Nottingham Trent University in England who specializes in gender discrimination in sport, said the human rights ruling “may well have implications in the future” for the rules, “but we are a long way off that at this stage.”
“This is new territory, and it is difficult to predict the next route,” Patel said, referring to it as a “unique case.”
Semenya didn’t lay out her next legal steps, if any, in her statement.
Switzerland, which was the respondent in the human rights case because Semenya’s last appeal was at the Swiss supreme court, could also appeal Tuesday’s findings.
“My hope is that Word Athletics, and indeed all sporting bodies reflect on the statements made by the European Court of Human Rights and ensure that they respect the dignity and human rights of the athletes they deal with,” Semenya said.
In a statement also released Wednesday, World Athletics again defended its regulations. It announced after the rights court ruling on Tuesday that the testosterone rules would remain in place and were “necessary, reasonable and proportionate.”
World Athletics says the rules are needed to address an unfair advantage Semenya and a small number of other female athletes hold because they have medical conditions that give them high natural testosterone that is in the typical male range. That gives them an unfair athletic advantage over other women, World Athletics argues.
It referred to Semenya as “biologically male” in the sports court case, an assertion that Semenya angrily denied.
“As the global governing body of athletics, we must and do consider the human rights of all our athletes,” World Athletics said Wednesday. “Sport regulations by their very nature restrict people’s rights. When those rights are in conflict, it is our duty to decide if that restriction justifies the aim, which in this case is to protect female sport.”
World Athletics stressed that the ruling by the European Court of Human Rights was against Switzerland over Semenya’s last appeal and not against World Athletics and its regulations.
Semenya said in her statement that her long fight against the regulations had been “damaging” for her “mentally, emotionally, physically and financially.”
She has been impacted by versions of the rules for almost her entire career after undergoing sex verification tests as an 18-year-old when she made her international track debut and won gold at the 2009 world championships.
Semenya took hormone suppressing medication in the form of a daily oral contraceptive pill for at least five years from 2010 to 2015.
She has refused to undergo the treatment again and has previously said it “tortured” her and caused side effects like weight gain, fevers, a constant feeling of nausea and abdominal pain. Semenya once said that she became so frustrated with track officials questioning her gender that she offered to show them her vagina.
“I have suffered a lot at the hands of the powers that be and have been treated poorly,” Semenya said Wednesday. “The hard work that I have put in to being the athlete I am, has been questioned. My rights violated. My career impacted.”