The South African runner Caster Semenya has called for athletes’ rights to be better protected after Europe’s top human rights court ruled that she had not been given a fair trial when she contested a policy that required her to lower her testosterone levels in order to compete in women’s sport.
The decision, handed down on Thursday by the European court of human rights, was the latest twist in the two-time Olympic gold medallist’s extraordinary legal battle.
The middle-distance runner – who won gold in the 800m at the 2012 and 2016 Olympics and has always been legally identified as female – was born with what sporting officials describe as “differences of sex development”, meaning her body naturally produces higher levels of testosterone than most women.
The governing body for track and field has long maintained that Semenya must take drugs to reduce her testosterone levels in order to compete as a woman. The policy was upheld by the Lausanne-based court of arbitration for sport in 2019, and then by a Swiss federal tribunal in 2020, leading Semenya to take her long-running battle against the regulations to the European court.
On Thursday Semenya welcomed the European court’s decision, describing it as “great for me, great for athletes” as she spoke to reporters outside the court. “We need to respect athletes, we need to put their rights first,” said the 34-year-old.
The decision does not change the rules that effectively ended her career after she won two Olympics and three world titles. The court said it could not uphold an earlier finding by a lower chamber that Semenya had been the victim of discrimination, deeming the complaints inadmissible as they did not fall under Switzerland’s jurisdiction.
But it handed her a partial victory in finding that the case required a “rigorous judicial review” as there were serious personal rights at risk and the Swiss federal court’s review had “fallen short of that requirement”. It ordered Switzerland to pay the athlete €80,000 (£69,000) for her expenses.
The decision paves the way for the case to be sent back to the Swiss federal court in Lausanne for reconsideration.
Between 2011 and 2015, Semenya complied with a process set out by track and field’s governing body, taking medication to lower her testosterone levels. She later likened it to being used as a “human guinea pig”, saying she had grappled with side effects such as constant sickness, panic attacks and soreness even as she continued to win titles.
Track authorities have argued that the limits on testosterone levels are necessary and reasonable to maintain fairness in women’s track events. Their critics say there is a lack of scientific research to support this view.
After the governing body for track and field formalised its policy on testosterone levels in 2018, Semenya refused to comply, leaving her ineligible to compete. On Thursday, the governing body, World Athletics, did not respond to the European court’s decision.
The consequences of Semenya’s legal battle could reverberate across the sports world as it dovetails with the International Olympic Committee’s consideration of whether to reintroduce some means of gender testing.
The link was emphasised by Semenya last month in an interview with a South African newspaper. “It’s a battle for human rights now,” she said. “It’s not about competing. It’s about putting athletes’ rights first. It’s about the protection of athletes.”
In 2023, Human Rights Watch described the rules that Semenya had been subject to as “degrading and invasive of privacy, on grounds that are scientifically contested”.
The regulations were incompatible with respect for women’s rights, and the freedom to live without cruel, discriminatory and degrading treatment, it added. “International sporting bodies set regulations with scant regard for international human rights norms, as if they are exempt from human rights standards.”
On Thursday, Semenya, who dominated her sport between 2009 and 2019 despite the scrutiny over her gender, vowed that her battle would continue. “The fight will never be over,” she told reporters. “As long as we have injustice, we fight till the court.”
