In July 2023 the European Court of Human Rights ("ECtHR") found, by a majority of four to three, that Caster Semenya had "not been afforded sufficient institutional and procedural safeguards" by the Swiss Federal Tribunal ("SFT") to have her complaints effectively examined. This is in regard to the long-running dispute between Semenya and the International Association of Athletics Federations ("IAAF"), concerning alleged discrimination as a result of Semenya's higher-than-average testosterone levels due to her "differences of sexual development" ("DSD"). It was decided that Semenya's human rights had been violated, with the judgment raising questions on the relationship between arbitration and human rights going forwards.
In April 2018, the "IAAF Eligibility Regulations for Female Classification (Athletes with Differences of Sex Development" ("DSD Regulations") were published, setting out specific criteria 'Relevant Athletes' must satisfy to be eligible for certain track events. As a result, Semenya is only eligible to compete in 'Restricted Events' if her testosterone levels are reduced through hormonal contraceptives to below the specified level. This must be done for a continuous period of six months to compete (and thereafter to retain eligibility). Since 2018, Semenya has not been allowed to compete in elite events between 400m and a mile and since March 2023 hormone suppression is a requirement for eligibility in all track and field events.
Court of Arbitration for Sport ("CAS")
After the DSD Regulations were published, Semenya and Athletics South Africa ("ASA") filed requests for arbitration, arguing that the DSD Regulations should be declared invalid on the basis that they are discriminatory, unnecessary, unreliable and disproportionate. In May 2019, the CAS dismissed both requests, acknowledging that despite the regulations proving discriminatory (because by their nature they only effect female athletes who have certain biological characteristics), they were valid, necessary and reasonable for the aim of preserving competitive integrity in female athletics. The DSD Regulations were suspended from implementation pending the outcome of the CAS' decision, ultimately coming into effect from 8 May 2019.
Swiss Federal Tribunal ("SFT")
In the same month, an appeal was made by Semenya to the SFT, which can only be done on limited grounds. In short, this was on the basis that the CAS' decision was contrary to "fundamental and widely recognised principles of public order" and that by assessing the DSD Regulations as a whole, rather than examining the evidence for each event they are imposed upon, the CAS had unduly restricted its power of review, restricting the applicants' right to be heard. Semenya also requested that the SFT adopt super-provisional measures in granting suspensive effect to her appeal, asking for the DSD Regulations to be lifted while judgment was awaited. Though initially suspended, lifting of the DSD Regulations was revoked by the SFT in July 2019. In August 2020 Semenya's appeal was formally dismissed, as the SFT considered the DSD Regulations were an appropriate, necessary and proportionate means of achieving fairness in sport.
Decision in the ECtHR
Semenya and ASA lodged an application in February 2021 to the ECtHR, contesting the compatibility of the DSD Regulations with provisions of the European Convention of Human Rights ("Convention").
The ECtHR first had to determine whether it had jurisdiction over the matter. This was an area of some disagreement across the panel. The IAAF is currently based in Monaco, Semenya is a South African resident, and both the IAAF and the CAS are non-state actors. On the other hand, all proceedings in the CAS have their seat in Lausanne, Switzerland which makes the SFT the relevant body for judicial recourse. The ECtHR found that the fact that Semenya's complaints were reviewed by the SFT was enough for the case to fall within the "jurisdiction" of Switzerland (for the purposes of Article 1 of the Convention), even though the SFT has a limited power of review.
A factor highlighted was that this was a case of 'compulsory arbitration', as Semenya was deprived of the possibility of applying to courts other than the CAS, and appealing to the SFT. This is a situation created by the rules of sports governing bodies. Such rules often include provisions stating that any disputes shall be resolved in a specified forum (in this case the CAS, as per clause 5.2 of the DSD Regulations), which the athlete has no choice but to agree to if they wish to participate in their chosen sport. Another example of this is Rule K1 in the Football Association's Handbook, which specifies arbitration with a designated procedure. Due to the obligatory nature of these provisions, the ECtHR expressed its concern that failing to find jurisdiction would "risk barring access to the [ECtHR] to an entire category of individuals" and this would not be "in keeping with the spirit, object and purpose of the Convention".
After jumping the jurisdiction hurdle, the ECtHR addressed the issue of discrimination. In essence, Semenya's complaint was that she had suffered discrimination on the basis of her DSD, and this was contrary to Article 14 (prohibition of discrimination) and Article 8 (right to respect for private life) of the Convention. The ECtHR described their task as "to ascertain whether the applicant had had sufficient institutional procedural safeguards available to her", and considered that Semenya had been subjected to a difference in treatment to those athletes she was considered to be in a "comparable situation" with. It found, by a majority of four to three, that there was a failure to apply the provisions of the Convention, which was exacerbated by the fact that Semenya had no possibility of applying to other courts besides the CAS. Discrimination on the grounds of sex and sexual characteristics required "very weighty reasons" for justification, and the SFT had "overstepped the narrow margin of appreciation afforded to it" in this regard. The conclusion was that Semenya had not been given sufficient institutional and procedural safeguards, and there had been a violation of Article 14 taken together with Article 8 of the Convention.
For similar reasons, the ECtHR also found a further violation of Article 13 (right to an effective remedy).
Semenya's application to the ECtHR was pursued against Switzerland/the SFT rather than the IAAF and its DSD Regulations. As a consequence, the victory does not allow her to compete, nor does it lift the regulations. However, the ECtHR has deemed Semenya's human rights violated, and noted there remain "serious questions" about the scientific and legal validity of the DSD Regulations. It remains to be seen whether Semenya will bring any further challenge before the SFT or the CAS.
However, in response to the judgment the IAAF reiterated their view that the DSD Regulations were a "necessary, reasonable and proportionate means of protecting fair competition in the female category", highlighting that the ECtHR was "deeply divided". There is a three-month window for Switzerland/the SFT to appeal to the Grand Chamber of the ECtHR. An appeal appears likely given the dissenting views and press releases by the IAAF.
Perhaps the greatest implication of the judgment may be for the relationship between sporting bodies and human rights more generally. As Scholna Jolly KC, Semenya's barrister, stated after the decision, "sporting governance bodies around the world must finally recognise that human rights law and norms apply to the athletes they regulate". Indeed, the door is arguably left open over how the Convention should be understood to interact with international arbitration proceedings. The ECtHR's emphasis on 'compulsory arbitration' and the lack of other available courts is worthy of consideration for other sporting bodies and could even extend to other sectors/industries where members have no practical alternative to arbitration. For example, trade associations which may in practice require their members to resolve disputes in accordance with the association’s arbitration rules. It will be interesting to see whether, if an appeal is made, the Grand Chamber sheds any further light on this aspect.