Editor's note: Jeremy Abel
is a recent graduate of the LL.M in International Business Law and Sports of
the University of Lausanne.
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
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.
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,
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
Editor's note: Michele Krech is a JSD Candidate and SSHRC Doctoral Fellow at NYU School of Law. She was retained as a consultant by counsel for Caster Semenya in the proceedings before the Court of Arbitration for Sport discussed above. She also contributed to two reports mentioned in this blog post: the Report of UN High Commissioner for Human Rights, Intersection of race and gender discrimination in sport (June 2020); and the Human Rights Watch Report, “They’re Chasing Us Away from Sport”: Human Rights Violations in Sex Testing of Elite Women Athletes (December 2020).
This blog was first published by the Völkerrechtsblog and is republished here with authorization. Michele Krech will be joining our next Zoom In webinar on 31 March to discuss the next steps in the Caster Semenya case.
Sport is the field par excellence in which discrimination
against intersex people has been made most visible.
Commissioner for Human Rights, Council of Europe
Issue Paper: Human rights and intersex people (2015)
Olympic and world champion athlete Caster Semenya
is asking the European Court of Human Rights (ECtHR) to make sure all
women athletes are “allowed to run free, for once and for all”. Semenya
brings her application against Switzerland, which has allowed a private
sport association and a private sport court to decide – with only the
most minimal appellate review by a national judicial authority – what it
takes for women, legally and socially identified as such all their
lives, to count as women in the context of athletics. I consider how
Semenya’s application might bring human rights, sex, and sport into
conversation in ways not yet seen in a judicial forum. 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.
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.
Participation is free, register HERE.
note: Thomas Terraz is a fourth year LL.B.
candidate at the International and European Law programme at The Hague
University of Applied Sciences with a specialisation in European Law. Currently
he is pursuing an internship at the T.M.C. Asser Institute with a focus on
International and European Sports Law.
As we begin plunging into a new decade, it can be helpful to look
back and reflect on some of the most influential developments and trends from
2019 that may continue to shape international sports law in 2020 and beyond. Hence,
this piece will not attempt to recount every single sports law news item but
rather identify a few key sports law stories of 2019 that may have a continued
impact in the 2020s. The following sections are not in a particular order.More...
Editor's note: Sofia Balzaretti is a Graduate research assistant and a PhD candidate at
the University of Fribourg (Switzerland) where she is writing a thesis on the Protection against Gender Stereotypes in
International Law. In addition to research in human rights and feminist
legal theory, she has also carried out some research in legal philosophy and on
the relationship between gender and the law.
Association of Athletics Federations (IAAF), the monitoring body of track and
field athletics, regularly submitted South African middle distance runner and
Olympic gold medalist Mokgadi Caster Semenya to sex verification tests when it
began questioning her sexual characteristics and speculating whether her body
belonged on the Disorder of Sex Development (DSD) spectrum. DSD Syndrome is often
defined as an “intersex condition” which affects the clear development of
either/or genitalia, gonads and chromosomes into one distinctive sex or
another. The spectrum of the intersex condition is particularly wide, and the
disorder can sometimes be minimal - some cases of female infertility can actually
be explained by an intersex condition.
The IAAF deemed the
controversial sex verification tests necessary on the grounds that it was
required to prove Semenya did not have a “medical condition” which could give
her an “unfair advantage”. It was eventually found that, because of an intersex
trait, Semenya did have abnormally high levels of testosterone for a woman,
which, in the IAAF’s opinion, justified a need for regulatory hormonal adjustments
in order for her to keep competing in the women’s category. The IAAF also funded
research to determine how ‘hyperandrogenism’ affects athletic performance. In 2018,
it issued Eligibility Regulations on Female Classification (“Athlete with
Differences of Sexual Development”) for events from 400m to the mile, including
400m, hurdles races, 800m and 1’500m. The IAAF rules indicated that in case of
an existing high level of testosterone, suppression or regulation by
chemotherapy, hormonal castration, and/or iatrogenic irradiation was mandatory
in order to take part in these events.
Semenya and her
lawyers challenged the IAAF Regulations in front of the CAS, who, in a very
controversial decision, deemed the Regulations a necessary, reasonable
and proportionate mean “of achieving the aim of what is described as the
integrity of female athletics and for the upholding of the ‘protected class’ of
female athletes in certain events” (§626). More...