Semenya case goes back to court for final ruling

The Grand Chamber of the European Court of Human Rights (ECHR) agreed Monday to rule on the case of double Olympic 800m champion Caster Semenya, who has been barred from competing over her refusal to take medication to lower her testosterone levels.

The 32-year-old South African athlete won a long legal battle in July against Switzerland at the Strasbourg-based international court, which ruled she was the victim of discrimination.

But Swiss authorities, supported by World Athletics, had announced their intention to take the matter to the ECHR’s Grand Chamber, whose rulings are binding.

The initial ECHR decision rendered was a narrow majority of four judges to three.

“On 6 November 2023 the case was referred to the Grand Chamber at the Swiss Government’s request,” the ECHR said in a statement, without specifying when the case would be re-examined.

Sidelined from track

Semenya, who is classed as having “differences in sexual development (DSD)” but has always been legally identified as female, has refused to take drugs to reduce her testosterone levels since athletics’ governing body introduced the rules in 2018.

As a result, she has been barred from competing at her favourite distance of 800m.

In her long-running legal battle, Semenya lost an appeal to the Court of Arbitration for Sport, and three years ago Switzerland’s supreme court confirmed the decision of sport’s top court.

Semenya then took her case against Switzerland to the ECHR.

“Switzerland had overstepped the narrow margin of appreciation afforded to it in the present case, which concerned discrimination on grounds of sex and sexual characteristics requiring ‘very weighty reasons’ by way of justification,” the ECHR said in July.

“The high stakes of the case for the applicant and the narrow margin of appreciation afforded to the respondent State should have led to a thorough institutional and procedural review, but the applicant had not been able to obtain such a review.”

Former world beater

The ruling by the ECHR in July was largely symbolic as it does not call into question the World Athletics ruling and does not pave the way for Semenya to return to competition without taking the medication.

In her new book, “The Race To Be Myself”, she confesses her career at the top is over.

“I will not take the drugs. This means I will no longer be able to run in any IAAF-sanctioned (World Athletics) event,” she says.

Semenya won Olympic gold at the 2012 London Games and at Rio in 2016 and collected world titles in 2009, 2011 and 2017.

World Athletics introduced the DSD regulations to create a level playing field in women’s events ranging from 400m to one mile. Semenya was forced to move up to the 5,000m, a distance in which she failed to reach the final at last year’s world championships in Eugene.

In March this year, the federation amended the rules. DSD athletes now have to reduce their amount of blood testosterone to below 2.5 nanomoles per litre, down from the previous level of five, and remain below this threshold for two years.

World Athletics also removed the principle of restricted events for DSD athletes, meaning regulations now cover all distances rather than the previously monitored ones.