The European Court of Human Rights condemns Switzerland for Discrimination against International-level Athlete

12-07-2023

Sofía Medina Sánchez 

International Justice and Human Rights Researcher 

Global Human Rights Defence 

On the 11th of July 2023, the European Court of Human Rights (ECtHR) issued the Semenya v. Switzerland judgment, condemning Switzerland for a violation of Article 14 (prohibition of discrimination) together with Article 8 (right to respect for private life) of the European Convention of Human Rights (ECHR). Additionally, the court found a violation of Article 13 (right to an effective remedy) in relation to Article 14, jointly with Article 8 ECHR. 

The case concerned an international athlete, specialised in middle-distance races. She complained about the International Association of Athletics Federation (IAAF) regulations which required her to take hormonal treatment in order to reduce her natural levels of testosterone to be able to compete in international female category competitions. She refused to undergo such treatment and thus was prevented from taking part in the competitions. In light of this, she took legal action before the Court of Arbitration for Sport (CAS) and the Federal Court, which were both rejected.  

The Strasbourg Court found that the applicant had not received enough institutional and procedural safeguards under Swiss law to enable her complaints to be effectively examined, especially considering that they concerned credible claims of discrimination as a consequence of her differences in sex development (DSD). Given that the procedure was subject to compulsory arbitration and thus she was deprived from applying in ordinary courts, the only available remedy had been the application to the CAS. Even though the CAS provided very extensive and detailed reasoning, it did not apply the ECHR and left open certain doubts regarding the validity of the DSD regulations. For instance, they failed to consider the hormone treatment side-effects, the possible inability of athletes to maintain such hormonal levels and the lack of evidence supporting the notion that 46 XY DSD athletes possess a significant athletic advantage in the 1,500 and 1 mile races. Moreover, the Federal Court’s review against the CAS decision on appeal was very limited. 

In conclusion, the ECtHR found that the IAAF discriminated against the athlete Caster Semenya on account of her DSD and that neither the CAS nor the Swiss Federal Court provided adequate judicial protection. It thus criticises them for not adequately protecting individual athletes against their sport’s governing organisations. 

Sources and further reading: 

Case of Semenya v. Switzerland (application no. 10934/21), Judgement, Third Section, 11 July 2023: https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-225768%22]}

Press Release issued by the Registrar to the Court, Semenya v. Switzerland- ECHR 219 (2023) 11.07.2023: https://hudoc.echr.coe.int/eng-press#{%22fulltext%22:[%2210934/21%22]}