Editor's note: Jeremy Abel
is a recent graduate of the LL.M in International Business Law and Sports of
the University of Lausanne.
1. Introduction
The famous
South African athlete Caster Semenya is in the last lap of her long legal
battle for her right to run without changing the natural testosterone in her
body. After losing her cases before the Court of Arbitration for Sport (CAS)
and the Swiss Federal Tribunal, she filed an application
before the European Court of Human Rights (Court). In the meantime, the Court
has released
a summary of her complaint and a series of questions addressed to the parties
of the case.
As is well
known, she is challenging the World Athletics’ Eligibility
Regulations for the Female Classification (Regulations) defining the conditions under which female
and intersex athletes with certain types of differences of sex development
(DSDs) can compete in international athletics events. Despite the Regulations
emanating from World Athletics, the last round of her legal battle is against a
new opponent: Switzerland.
The purpose
of this article is to revisit the Semenya case from a European
Convention on Human Rights (ECHR) perspective while considering certain
excellent points made by previous contributors (see here,
here
and here)
to this blog. Therefore, the blog will follow the basic structure of an ECHR
case. The following issues raised by Semenya shall be analysed: the applicability
of the ECHR, Semenya’s right to private life (Article 8 ECHR) and to non
discrimination (Article 14 ECHR), as well as the proportionality of the
Regulations. More...
On Wednesday 31 March 2021 from 16.00-17.30 CET, the Asser International Sports Law Centre, in collaboration with Dr Marjolaine Viret (University of Lausanne), is organising its fourth Zoom In webinar
on the recent developments arising from the decision of the Swiss
Federal Tribunal (SFT) in the case Caster Semenya v. International
Association of Athletics Federations (now World Athletics), delivered on
25 August 2020.
Background
The participation of athletes with
biological sex differences to international competitions is one of the
most controversial issues in transnational sports law. In particular,
since 2019, Caster Semenya, an Olympic champion from South-Africa has
been challenging the World Athletics eligibility rules for Athletes with Differences of Sex Development
(DSD Regulation), which would currently bar her from accessing international competitions (such as the Tokyo Olympics) unless she accepts to undergo medical treatment aimed at
reducing her testosterone levels. In April 2019, the Court of
Arbitration for Sport rejected her challenge against the DSD Regulation
in a lengthy award.
In response, Caster Semenya and the South African Athletics Federation filed
an application to set aside the award before the Swiss Federal Tribunal.
In August 2020, the SFT released its decision rejecting Semenya’s challenge of the award (for an extensive commentary of the ruling see Marjolaine Viret’s article on the Asser International Sports Law Blog).
Recently, on 25 February 2021, Caster Semenya announced her decision to lodge an application
at the European Court of Human Rights (ECtHR) against Switzerland on
the basis of this judgment. In this context, we thought it important to
organise a Zoom In webinar around the decision of the SFT and
the pending case before the ECtHR. Indeed, should the ECtHR accept the
case, it will be in a position to provide a definitive assessment of the
human rights compatibility of the DSD Regulation. Moreover, this
decision could have important consequences on the role played by human
rights in the review of the private regulations and decisions of
international sports governing bodies.
Speakers
Participation is free, register HERE.