7th June 2021

ECHR’s questions on whether DSD Rules contravene Semenya’s human rights

The European Court of Human Rights (ECHR) has published ten questions that parties will be asked to consider in deciding if World Athletics’ ‘DSD Regulations’ contravene Caster Semenya’s human rights. In November last year, the South African 800m Olympic Champion began an appeal to the ECHR, arguing that the Eligibility Regulations for the Female Classification (Athletes with Differences of Sex Development) contravened Articles 3, 6, 8, 13 and 14 of the European Convention on Human Rights (below).

Semenya will not be allowed to defend her title at the Tokyo 2020 Olympics due to the ‘DSD Regulations’, which prevent athletes with one of five differences of sex development (DSDs) from competing in international events run between 400m and one mile in World Athletics’ female category, if their endogenous (natural) testosterone levels are above 5nmol/L and have an ‘androgenising effect’ (i.e. if that testosterone is taken up by their androgen receptors and boosts their physiology). World Athletics’ argument, which emerged during Semenya’s challenge to the DSD Regulations at the Court of Arbitration for Sport (CAS), is that 46 XY DSD athletes develop an unfair advantage over XX karyotype women due to the continued action of ‘elevated’ testosterone on their XY karyotype physiology from puberty onwards.

On 25 May, the ECHR published ten questions that the parties to the case must consider. They are:

1. In light of the allegations presented in the Application, and in particular by the examinations undergone, the obligation to take contraceptives in order to lower one’s testosterone level, and by the allegedly stigmatising and demeaning effect of the DSD Regulations, has the applicant suffered treatment contrary to her human dignity, her physical and mental integrity, and her social and gender identity, in violation of Article 3 of the Convention?

2. Did the applicant suffer a violation of the right to respect for her private life as protected by Article 8 of the Convention? In addition, has she suffered an infringement of her right to practice her profession1?

3.1. Has there been a violation of Article 14, taken in conjunction with Article 3 and/or Article 8 of the Convention on the grounds of the discriminatory treatment alleged by the applicant, as a woman with a naturally higher testosterone level?

3.2. If so, on what criterion was the unequal treatment based? Was there a difference in treatment between people in similar situations? Was there an objective and reasonable justification for the alleged unequal treatment?

3.3. To your knowledge, how many high level athletes are potentially covered by the new DSD Regulations?

3.4. In sport, are there other regulations to correct certain beneficial physical characteristics (e.g. height) in order to ensure fair competition?

4.1. Do the allegations of violations outlined above (questions one to three) amount to interference with the applicant’s exercise of rights protected by Articles 3, 8, and 14 of the Convention, to to failure by Switzerland to comply with its positive obligations to protect the applicant against treatment contrary to these provisions by private entities (in particular, the ‘IAAF’)?

4.2. If applicable, did the DSD Regulations constitute a sufficient legal basis, and was the interference allegedly caused by its implementation pursuing a legitimate aim within the meaning of Article 8 § 2, and was it proportionate and necessary? In a democratic society?

4.3. In the present case, did the applicant have sufficient institutional and procedural guarantees – namely a court system before which she was able to present her complaints – and did they render duly reasoned decisions taking into account the case law of the Court2, including concerning the objectivity of the reports of medical experts and the justification and proportionality of the DSD Regulations?

5. Has there been a violation of Article 6 (access to courts) and/or 13 (effective remedy) on the grounds of the limited review by the Swiss Federal Supreme Court?

It is understood that Semenya’s case has been given Priority Status. It is unclear whether this means that the ECHR will hear her application before the postponed Tokyo 2020 Olympics, which take place from 23 July to 8 August.

Semenya has so far failed to meet the Tokyo 2020 qualifying time for the 5,000m. She moved up to that distance as the DSD Regulations prevent her from competing in international events run between 400m and one mile in World Athletics’ female category unless she takes testosterone reducing drugs, which she refuses to do on the grounds that it is likely to make her ill. However Francine Niyonsaba, another female athlete understood to fall within the remit of the DSD Regulations, has met the qualifying time.

‘Caster and her legal team look forward to receiving the Government of Switzerland’s response and engaging with the questions posed by the Court during this stage of the case’, read an emailed statement from law firm Norton Rose Fulbright, which is representing Semenya. ‘Caster is grateful to all those who continue to stand alongside her to protect the rights of women participating in international sport’.  

1. Here, the ECHR references Platini v. Switzerland (dec.), No 526/18, §§ 52 et seq., 11 February 2020, in which one strand of former FIFA Executive Michel Platini’s argument against an eight year ban was that it infringed his ‘freedom to exercise a professional activity’. Platini’s Application was dismissed.
2. Here, the ECHR again references Platini, but in this context § 62, in which similar questions were asked to those raised in Q:4.3.

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