Hyperandrogenism: New episode in Caster Semenya’s legal battle against the IAAF

Caster Semenya is a South African female athlete who has won many Olympic medals.

She has the specific characteristic of being hyperandrogenic, which means her levels of testosterone are higher than the average woman.

In 2018, the IAAF (International Athletics Federation) drew up a regulation concerning hyperandrogenism, requiring any sportswomen concerned to take medication to lower the level of testosterone produced naturally by their bodies.

With the support of the South African government and the United Nations Human Rights Council, Ms Semenya lodged an initial appeal against the new regulations.

However, her application failed on 1 May 2019. The Court of Arbitration for Sport ruled in favour of the IAAF and conditionally authorised the treatment to reduce testosterone levels. Ms Semenya appealed against this decision to the Swiss Federal Court, which upheld the IAAF’s decision.

As a result, on 30 July 2019, the athlete was forced to announce that she would not be taking part in the World Athletics Championships scheduled to take place two months later in Doha, Qatar, nor in the Olympic Games in 2021.

In February 2021, Caster Semenya took her case against the International Athletics Federation, to the European Court of Human Rights (ECHR).

The claimant based her application principally on Article 14 (prohibition of discrimination) and Article 8 (right to respect for private life) of the European Convention on Human Rights, believing that she had been subjected to discriminatory treatment because of her hyperangrogenism.

She also based her application, on a subsidiary basis, on Article 3 (prohibition of inhuman or degrading treatment), Article 8 (right to respect for private and family life) and Articles 6 (right to a fair trial) and 13 (right to an effective remedy) of the Convention, complaining that the Federal Court’s power of review was limited.

In its judgment of 11 July 2023, the ECHR upheld her claims, finding that the 32-year-old athlete was a victim of discrimination and that she had not benefited from sufficient institutional and procedural guarantees in Switzerland to enable her to assert her rights effectively.

While this decision is important in terms of recognising the discrimination caused by hyperandrogenism, it does not mean that Caster Semenya will be able to immediately return to competition without treatment. The Court has no direct jurisdiction to overturn the decisions of the Swiss courts, or to amend the IAAF’s World Athletics regulations.

The IAAF has stated that it would take the case to the Grand Chamber of the ECHR in order to have the decision overturned, and for the time being has announced that it will maintain the obligation to take the treatment, in the name of “protecting sporting fairness”.

For her part, Caster Semenya can apply to the Swiss Federal Court for a review of the ruling confirming the award of the Court of Arbitration for Sport and validating the World Athletics regulations. According to Professor Matthieu Maisonneuve, this possibility is available under Swiss law in the event of a violation of the ECHR. If the Swiss Federal Court grants her request, the Court of Arbitration could then rule that the World Athletics regulations are illegal, forcing the IAAF to amend its rules.

The legal marathon is therefore likely to continue for some time, at the risk of depriving Caster Semenya of the Paris Olympic Games.