The European Court of Strasbourg ruled this Tuesday in favor of the South African athlete Caster Semenyawho considered herself discriminated against as a woman after the International Athletics Federation (IAAF) denied her participation in certain women’s events for having a very high testosterone level.
In their ruling, the European judges formally condemn Switzerland, which is where the Sports Arbitration Court (TAS), that he had rejected the arbitration that Semenya requested so that he would not be required to undergo a hormonal treatment that would reduce his testosterone level below the threshold that the IAAF had set for him as a condition to allow him to compete.
In the first place, they reproach the Swiss Justice for having washed its hands on the grounds that its power to examine this case was limited, since the decision of origin had been made by the TAS, which had applied a regulation of the federation -a limit of testosterone in female tests- what did you think “fit, necessary and proportionate” so that there would be sports equity.
In this regard, the European Court of Human Rights (ECtHR) stresses that the South African middle-distance runner did not have the institutional and procedural guarantees enough in Switzerland to assert their claims that they were being discriminated against, which were “credible” and “well-founded”.
In fact, the ECtHR recalls that the TAS itself acknowledged its doubts about the regulations drawn up by the IAAF, which in practice forced it to submit to hormone treatments with “significant” side effects and that 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 human rights bodies of the Council of Europe (to which the Strasbourg Court belongs) have emphasized their “serious concerns“for the discrimination of women or intersex athletes in sports with regulations like that.
It also recalls that it has repeatedly insisted that “differences based exclusively on sex must be justified by ‘very strong considerations’, ‘compelling reasons’ or “particularly strong and compelling reasons.”
For this reason, the margin of appreciation of the public authorities is “restricted” when they claim to apply a difference in treatment on the basis of a person’s sexual characteristics.
In short, with Semenya, Switzerland (and consequently the CAS and the IAAF) violated the article of the European Convention on Human Rights that prohibits discrimination.
As the athlete had not requested any compensation for material or moral damages, European judges have not set any compensation, but Switzerland will have to pay 60,000 euros for legal costs.
Beyond the merits of the matter, the ruling has consequences for the functioning of the Sports Court to the extent that the ECtHR makes it very clear that it is competent in matters such as this to guarantee respect for the European Convention on Human Rights, and therefore constitutes a means of appeal on what the CAS may decide.
And this, even 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 Semenya’s refusal to submit to the IAAF regulations that forced her to undergo hormonal treatment to lower her testosterone level, a rule that applies only to people with an XY genetic system, corresponding to women, and not with XX, that of men.
2023-07-11 09:30:00
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