The Strasbourg Court rules that the athlete Caster Semenya was discriminated against by the Athletics Federation
El European Court of Human Rights in Strasbourg has ruled this Tuesday in favor of the South African athlete Caster Semenya, who denounced having been discriminated against after being denied the International Athletics Federationnow World Athletics, their participation in the female category of some tests to produce a higher than usual testosterone level.
In their sentence, the European judges sentenced Switzerland, which is where the Sports Arbitration Court (TAS), which had rejected the arbitration requested semenia so that he would not be required to undergo hormonal treatment that would reduce his testosterone level below the threshold set by the IAAF as a condition of allowing you to compete. In May 2019, the court had endorsed the IAAF rule that required athletes as semenia, what's wrong with it hyperandrogenism, to take medication to reduce his testosterone level to “preserve the integrity of women's athletics".
The Strasbourg reproach
Now Strasbourg reproaches the swiss justice having washed their hands of it, arguing that its power to examine this case was limited, since the original decision had been made by the TAS, which had applied a federation regulation -a testosterone limit in female tests- that seemed to it “apt, necessary and proportionate” so that there would be sports equity. In that regard, the European Court of Human Rights (ECHR) stresses that the South African middle-distance runner did not have sufficient institutional and procedural guarantees in Switzerland to assert their arguments of being discriminated against, which were "credible” and they were “well founded".
In fact, ECHR remember that the same TAS He acknowledged his doubts about the regulation that the IAAF which in practice forced him to undergo hormonal treatments with side effects "significant” and that they also did not give him a total guarantee of allowing him to lower testosterone to a sufficient level. In addition, it notes that in recent reports, competent bodies for human rights in the Council of Europe (to which belongs the Strasbourg Court) have placed the accent on their “serious concerns” for the discrimination of women or intersex athletes in sports with regulations like that
justify the differences
He also recalls that he has repeatedly insisted that "differences based solely on sex must be justified by 'very strong considerations', 'compelling reasons' or 'particularly strong and compelling reasons'“. Therefore, the margin of appreciation of public authorities is "restricted“when they seek to apply a difference in treatment on the basis of a person's sexual characteristics.
In short, with Semenia, Switzerland (and consequently the TAS as well as the IAAF) violated the article of the European Convention on Human Rights that prohibits discrimination. Since the athlete had not requested any compensation for material or moral damages, the European judges have not set any compensation, but Switzerland will have to pay her 60.000 euros for legal costs.
World Athletics take note
After the verdict was made public, World Athletics has issued a statement in which it ensures that "take note"of the failure"deeply dividedor”, it says in relation to the particular vote signed by three judges. The federation insists that the rules that determine acceptable testosterone levels in women “are a reasonable and proportionate necessary means to protect fair competition in the women's category".
In addition, it stresses that the process has been followed against Switzerland and not against the federation, although the regulation considered discriminatory by the court is from World Athletics itself. The organization assures that it will contact the Swiss government to encourage it to “request the referral of the case to the Grand Chamber of the ECtHR"for a final decision"due to strong dissenting opinions” and in the meantime it will maintain the current regulations.
Strasbourg is competent
Beyond the merits of the matter, the ruling has consequences for the operation of the Sports justice to the extent that the ECHR makes it very clear that it is competent in matters such as this to ensure respect for the European Convention on Human Rights, and therefore constitutes a means of appeal on what the court may decide. TAS. And this even while acknowledging the advantages of having a centralized system for litigation in the sports field at an international level.
At the origin of this case is the refusal of semenia to submit to the regulations of the federation that forced him to undergo hormonal treatment to lower his testosterone level, a rule that does not apply to men.
The decision occurs in the midst of an international debate over the regulations of the federations on the testosterone level that allow them to compete as women, rules specifically designed to limit the participation of trans women in competitions but which also affects others such as semenia. In fact, this year the international athletics federation, World Athletics, agreed to ban trans athletes beginning their transition after puberty from participating in international competitions.