25 February 2021

Caster Semenya takes her Case to the European Court of Human Rights

Mokgadi Caster Semenya’s ongoing fight for dignity, equality, and the human rights of women in sport took a crucial step forward with the filing of an application to the European Court of Human Rights. Caster asks the Court to find that Switzerland has failed in its positive obligations to protect her against the violation of her rights under the European Convention on Human Rights as a result of World Athletics’ continuing discriminatory attempts to restrict the ability of certain women to participate in female athletics competitions.

Caster’s application continues her challenge to the demeaning and intrusive regulations1 implemented by World Athletics in 2018 which prohibit some women athletes with naturally higher levels of testosterone from participating in international competitions. The regulations require these women to undergo humiliating and invasive physical examinations followed by harmful and experimental medical procedures if they wish to compete internationally in women’s events between 400m and one mile, the exact range in which Ms Semenya specialises.

Caster stated: “I hope the European court will put an end to the longstanding human rights violations by World Athletics against women athletes. All we ask is to be allowed to run free, for once and for all, as the strong and fearless women we are and have always been.” 

Last year, the Swiss Federal Supreme Court held that that the World Athletics’ regulations violate Caster’s right to physical integrity (among other rights violations) but refused to intervene to protect Caster’s fundamental human rights. Caster’s legal team will argue that the European Court of Human Rights must act to end these human rights violations, which also affect other women athletes, and ensure that international athletes are afforded access to an effective remedy, to protect against and prevent such human rights violations.

Caster’s lawsuit is being filed on the heels of a December 2020 report by Human Rights Watch documenting the abuses against women athletes, many from the Global South, inflicted by “sex testing” in athletics. In June 2020, the United Nations High Commissioner for Human Rights called on World Athletics to revoke its regulations in a report titled “Intersection of race and gender discrimination in sport”. The World Medical Association has stated that these regulations violate medical ethics and has called on physicians to refuse to implement them. Despite this mounting pressure from the international community, World Athletics remains undaunted in pursuing its discriminatory policies against Caster and other women athletes.

The legal team advancing Caster’s case before the European Court of Human Rights is led by Norton Rose Fulbright lawyers Gregory Nott and Patrick Bracher in Johannesburg and Christian Dargham in Paris, who are acting pro bono. London-based barristers Schona Jolly QC and Claire McCann and Toronto-based lawyers James Bunting and Carlos Sayao of Tyr LLP complete the team.

Caster wishes to thank all those who have stood behind her throughout her ongoing battle for equality in sport, in particular the group of funders who have assisted in financing this piece of complex human rights litigation. Funders such as Discovery, Blue Label Telecoms, Richmark Holdings, DNI Retail, and other donors who prefer to remain anonymous, have enabled Caster to continue her fight to end discrimination and safeguard the human rights of other women athletes.

Caster also wishes to extend her gratitude to the South African Parliament, who in the final quarter of 2020, passed a unanimous motion in support of her cause. This initiative was due to the efforts of the South African Human Rights Commission and the Commission for Gender Equality as well as the many willing government and private parties who have responded to the call for fairness in sport.  Their assistance has been immense and Caster is grateful that they remain allies in this fight.

Whilst the timeline of the application remains to be determined by the Court, Caster remains ever hopeful that she will soon be allowed to return to the starting line in the 800m at international competitions. Caster’s indomitable spirit continues to be a source of inspiration to all those fighting alongside her for the equality and dignity of women throughout the world.

1. Eligibility for the Female Classification (Athletes with Differences of Sex Development)

• This media release was published by Norton Rose Fulbright via email on 25 February 2021.

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