Caster Semenya v. Switzerland: eligibility of intersex female athlete in female athletic events

By Dr Tsubasa Shinohara

On 11 July 2023, the European Court of Human Rights (ECtHR) rendered a significant judgment in Caster Semenya v. Switzerland (App. No. 10934/21, only available in French) after it delivered several judgments in the field of sports (especially, see Bakker v. Switzerland (dec.), Mutu and Pechstein v. Switzerland, Ali Riza v. Switzerland, Ali Rıza and Others v. Turkey, and Platini v. Switzerland (dec.). Additional information can be found in blog posts, here and here).

The applicant in this landmark decision is Caster Semenya, an intersex female professional athlete. She faced exclusion from competing in female athletic events due to her naturally elevated testosterone levels. The Court of Arbitration for Sport (CAS) ruled that she had infringed the Differences of Sex Development (DSD) Regulations established by World Athletics (formerly known as the International Association of Athletics Federations, IAAF). Consequently, she received a permanent ban from competing in female athletic events.

In accordance with Article 190(2) of the Swiss Private International Law Act (Swiss PILA), she submitted complaints to the Swiss Federal Tribunal (SFT) with the aim of setting aside the CAS award. However, the SFT did not uphold her complaints, prompting her to file an application against Switzerland before the ECtHR (See SFT’s judgment).

In this case, the ECtHR finally found violations of the right to non-discrimination under Article 14 in conjunction with the right to respect for private life under Article 8 of the European Convention on Human Rights (ECHR) and the right to an effective remedy under Article 13 of the ECHR. This judgment will have a significant impact on the sports society because the SFT should widely interpret the scope of Article 190(2)(e) of the Swiss PILA to guarantee the rights of intersex female athletes in accordance with the provisions of the ECHR.

Overview of the case’s facts

The DSD Regulations were introduced by the IAAF on 9 March 2018 and came into force on 1 November 2018, following the Dutee Chaud case. These updated regulations imposed new compulsory criteria concerning endogenous testosterone levels for eligibility in eight female athletics events, namely the 400m, 800m, and 1500m races (collectively referred to as the “Restricted Events”). Consequently, Semenya was unable to compete in the Restricted Events due to her naturally high testosterone levels stemming from her sex characteristics.

In this scenario, Semenya filed a case with the CAS. She contended that this new rule unfairly discriminates against intersex female athletes, as it applies exclusively to (1) female athletes and (2) intersex female athletes. The CAS applied three specific tests to evaluate the validity of the DSD Regulations: (1) Did the DSD Regulations constitute prima facie discrimination against the athletes on the basis of sex and/or gender (discrimination test); (2) If so, was the discrimination necessary for the sports society (necessity test); and (3) Was the discrimination under the DSD Regulations a proportionate means of achieving the legitimate aims of ensuring a fair female competition for specific events (proportionality test). Based on these criteria, the CAS concluded that the DSD Regulations constituted prima facie discrimination against intersex female athletes. This was because the regulations exclusively applied to female athletes and imposed additional restrictions on intersex female athletes. However, it considered that this discrimination was a necessary, reasonable, and proportionate means of achieving the legitimate aims to maintain a fair female competition and to protect other female athletes.

Following this arbitral award, Caster Semenya filed a request for interim and the suspension of the DSD Regulations, aiming to set aside the CAS award under Article 190(2) of the Swiss PILA, before the SFT. On 25 August 2020, the SFT dismissed her arguments for setting aside the CAS award. The SFT acknowledged that the DSD Regulations constituted prima facie discrimination against intersex female athletes but deemed them necessary, reasonable, and proportionate measures to maintain fairness in female sports competitions and safeguard other female athletes. Finally, the SFT concluded that the CAS award did not violate substantive public policy under Article 190(2)(e) of the Swiss PILA, leading to the decision not to set aside the CAS award.

A Brief Summary of the Court’s Judgment

Jurisdiction ratione personae and ratione loci

The ECtHR firstly examined its jurisdiction ratione personae and ratione loci. In this case, the Court considered that the SFT must apply international law to a specific procedure as stated in Article 190 of the Swiss Federal Constitution. In this sense,  the SFT may apply the ECHR to the present case in an indirect manner (para. 103).Furthermore, the applicant had previously brought this case before the STF after the CAS rendered its arbitral award. Therefore, a ‘jurisdictional link’ exists between the applicant and the state in question, in accordance with Article 1 of the ECHR. (para. 104).  

The ECtHR understood that the fact that the World Athletics is established under Monaco law, rather than Swiss law, does not alter its competence ratione personae and loci because the Court’s examination would primarily focus on the proceedings before the CAS and the SFT (para. 107; See also Mutu and Pechstein v. Switzerland and Platini v. Switzerland (dec.)). In particular, it observed that athletes have no option to bring their complaints before ordinary courts due to the sports arbitration system. This lack of choice for athletes raises concerns as it restricts their access to justice and hinders their ability to have their complaints heard by independent courts. Such an outcome does not align with the purpose and objectives of the ECHR. For the reasons set out above, the Court upheld its jurisdiction ratione personae and ratione loci in this case because it acknowledged the importance of ensuring access to justice for the applicant and safeguarding her rights under the ECHR (para. 111).

Violation of Article 14 cj. Article 8 ECHR

Secondly, the Court assessed whether there was a violation of Article 14 in conjunction with Article 8 of the ECHR. In this regard, an important point is that the SFT has very limited power of review to decide whether the arbitral award is incompatible with public policy within the meaning of Article 190(2)(e) of the Swiss PILA.

In this case, athletes are obliged to bring their complaints before the CAS due to a compulsory arbitration clause that prevents them from initiating legal proceedings in ordinary courts. After the CAS hearing, only the requirements enumerated in Article 190(2)(e) of the Swiss PILA permit athletes to challenge the CAS decision before the SFT para. 167). Under this situation, the Court stated that sports arbitration based on the mandatory relationship between athletes and sports governing bodies should be distinguished from commercial arbitration (para. 177). Essentially, athletes have no alternative but to bring their complaints of human rights infringements before other judicial bodies if the SFT fails to treat such violations seriously, primarily because of the restricted scope of ‘public policy’ as defined in Article 190(2)(e) of the Swiss PILA.

Furthermore, the Court held that both the CAS and SFT did not adequately consider significant concern about irreparable damage caused by hormonal medical treatment in light of the ECHR (paras. 179-184). Furthermore, it stated that the SFT did not sufficiently take account of side-effects related to the use of oral contraceptives to reduce her naturally high testosterone levels (para. 188).

In light of the foregoing, states have positive obligations to take measures to protect individuals within their jurisdiction from discrimination by private actors (para. 192). On this basis, the Court considered that the national courts are required to guarantee real and effective protection against discrimination by private actors, but the SFT failed to do so (para. 194). Consequently, the Court concluded that Switzerland had not fulfilled its positive obligations to prevent discrimination by private actors (para. 195).

In conclusion, the Court found that there was a violation of Article 14 in conjunction with Article 8 of the ECHR because Switzerland did not ensure sufficient institutional and procedural safeguards for the applicant against discrimination in sports based on her sex and sex characteristics. Switzerland exceeded the narrow margin of appreciation it enjoyed in the present case by not (successfully) implementing the positive obligations (paras. 200-202).

Violation of Article 13 ECHR

Thirdly, the Court examined whether there had been a violation of Article 13 of the ECHR in light of Article 14 in conjunction with Article 8 of the ECHR. For this question it acknowledged that national authorities enjoy a very wide margin of appreciation (para. 234). At the same time, the Court has a role as guardian of European public policy to verify whether an individual has effectively and concretely enjoyed the foundations of that public policy during domestic court proceedings (para. 234).

In this case, the Court determined that there had been a breach of the right to an effective remedy under Article 13 of the ECHR due to the absence of sufficient institutional and procedural safeguards for intersex female athletes in Switzerland (para. 235). In the context of sports arbitration, the applicant was obliged to bring her complaint about the validity of the DSD Regulations before the CAS. However, despite the applicant’s well-founded and credible complaints, the CAS failed to address the allegations of discrimination in light of Article 14 of the ECHR (para. 235). Furthermore, the SFT has very limited power of review over the CAS award within Article 190(2)(e) of the Swiss PILA (para. 236). Therefore, the SFT did not respond to the well-established and credible allegations made by the applicant

In summary, the Court considered that both the CAS and the SFT did not effectively respond to the substantiated and credible allegations made by the applicant. In this regard, the Court concluded, in the context of its limited role as guardian of European public policy, that the domestic remedies available to the applicant cannot be regarded as effective within the meaning of Article 13 of the ECHR (para. 239). Accordingly, the Court found that there was a violation of Article 13 in light of Article 14 in conjunction with Article 8 of the ECHR.

Judges’ opinions

The ECtHR concluded in a majority decision (4 votes to 3) that Switzerland violated the ECHR. There were three judge’s concurring and dissenting opinions annexed to this judgment. This blog post will provide a brief summary of the partly dissenting opinion made by Judge Serghhides and common dissenting opinion made by Judges Grozev, Roosma and Ktistaki due to the limited space of this blog post.

Partly concurring and partly dissenting opinion of Judge Serghides

Judge Serghides, while generally aligning with the majority opinion, disagreed with the reasoning behind the Court’s dismissal of the Article 3 allegations as manifestly ill-founded. He also contested the Court’s approach of not separately considering Article 8 of the ECHR (para. 3).

In his view, there was a breach of both Articles 8 and 3 individually (para. 4). He argued that the applicant faced a dilemma: she had to choose between a violation of Article 8 or of Article 3 of the ECHR (para. 21). If she wished to exercise her right to respect for her private life under Article 8 of the ECHR by taking part in international female athletic competitions, she had to subject herself to inhuman and degrading treatment within the meaning of Article 3 by undergoing medical treatment by oral contraceptives in order to reduce her testosterone levels (para. 21). On the other hand, if the applicant wished to respect and protect her physical and psychological integrity by not taking medical treatment to reduce her testosterone levels, she could not compete in female athletics events, which would amount to a violation of her right to respect of her private life under Article 8 of the ECHR (para. 21). In this situation, he stated that this forced choice imposed on the applicant was incompatible with Articles 8 and 3 of the ECHR because states parties to the ECHR have the positive obligations to monitor if individuals within the territory do no confront the forced choice concerning the ECHR rights (para. 37). Consequently, he concluded that the imposition of such a forced choice on the applicant in this case violated both Articles 8 and 3 of the ECHR, individually, Article 14 in conjunction with Article 8, and Article 13 in light of Article 14 in conjunction with Article 8 (para. 50).

Common dissenting opinion of Judges Grozev, Roosma and Ktistaki

Finally, Judges Grozev, Roosma and Ktistaki mainly dissented from the majority opinion of the Court regarding the jurisdiction ratione personae and loci (paras. 1-2). The majority view asserted that, since the SFT has jurisdiction to hear an appeal against the CAS award within the scope of ‘public policy’ under Article 190(2)(e) of the Swiss PILA, it must apply the ECHR when assessing the CAS award. However, they could not understand this logic because there was no legal basis for this finding in the established ECtHR case law (para. 5).

In their view, the majority opinion considered that the SFT wrongly interpreted Article 190(2) of the Swiss PILA in this limited way and held that the concept of public policy should encompass all obligations under the ECHR and the Court’s jurisprudence (para. 6). The three dissenting judges stated that this conclusion is problematic because (1) it entails the Court’s involvement in interpreting domestic law and (2) it assigns the ECHR a worldwide scope not deriving from the Court’s case law (para. 6). The Court has previously recognized the existence of a jurisdictional link concerning complaints related to absolute rights that align with a universal consensus not limited to the European society (para. 8). In the present case, however, the applicant argued a breach of Article 14 in conjunction with Article 8, both of which concern non-absolute rights (para. 9).

Furthermore, they considered that the concept of ‘public policy’ and Article 190(2)(e) of the Swiss PILA were insufficient to establish a jurisdictional link (para. 12). They substantiated this in a twofold way: (1) they disagreed to rely on the principle of ‘jurisdictional link’ established in Markovic and Others v. Italy [GC] in this case because this principle was established solely for the purposes of Article 6 and concerned purely procedural rights (para. 10); and (2) there was nothing in the ECHR to suggest that it should provide universal protection of the rights and Swiss public policy should not apply to the whole world (para. 11). Therefore, they concluded that the Court lacked jurisdiction to hear this case (para. 12).

Conclusion

In this case, the SFT exercised its extremely limited power to review substantive rights violations within the scope of ‘public policy’ under Article 190(2)(e) of the Swiss PILA due to the compulsory sports arbitration system. Due to this limited power of review, the ECtHR considered that Switzerland failed to implement the positive obligations to adequately protect Semenya from discrimination based on her sex and sex characteristics in sports under the ECHR.

To implement the positive obligations, the SFT should have broadly interpreted the notion of ‘substantive public policy’ under Article 190(2)(e) of the Swiss PILA, ensuring sufficient institutional and procedural safeguards for intersex female athletes against discrimination based on their sex and sex characteristics. This message from the ECtHR holds particular significance in this judgment because the SFT had previously taken a narrow approach to interpreting the concept of ‘public policy’ under Article 190(2)(e) of the Swiss PILA. In this sense, this Chamber judgement could potentially pave the way for intersex female athletes to claim violations of substantive human rights in sports society (For additional academic perspectives on this case, see here, here and here).

It is important to note that Judge Serghides’ opinion, which identifies violations of Articles 8 and 3, may not fully consider the practical realities of the sports society. In his view, the fact that Semenya had to take oral contraceptives to reduce her testosterone levels in order to compete in international female athletics events is a serious violation of Articles 8 and 3 of the ECHR. Furthermore, there no intention on her side to cheat her physical capacity with performance-enhancing drugs, but she was born with inherent advantageous physical capacity caused by elevated testosterone levels. If she refused to take such a medical treatment, she could not participate in her professional female tournaments. In Judge Serghides’ opinion, this situation is absolutely unacceptable from a human rights perspective.

However, when intersex female athletes can compete in professional female competitions, it can present significant challenges for other female athletes who have no such physical advantages. This could potentially discourage other female athletes from participating in female sports competitions. This does not suggest that the situation in which the rights of intersex female athletes are being violated is acceptable. However, this Chamber’s judgment had to strike a delicate balance between the individual rights of intersex female athletes to participate in international female sports events and the interests of the female sports community to protect other female athletes from an unfair competitive environment (See also Common Dissenting Opinion of Judges Grozev, Roosma and Ktistaki, para. 13).

In this context, the Court did not directly criticize the validity of the DSD Regulations under the ECHR. To decide whether the self-regulation is compatible with the provisions of the ECHR is not the Court’s task. Its role is limited to identifying the actions or omissions of state parties and determining whether these actions or omissions comply with the ECHR. This limitation exists because human rights law does not apply to private relationships between individuals. However, the legal doctrine of indirect horizontal effect or third-party applicability (Drittwirkung) considers the applicability of human rights law to the private relationships. On this basis, the states are held responsible for the violation of human rights caused by private actors, such as sports governing bodies, because they have the positive obligations under the ECHR. Simultaneously, private actors have a responsibility to respect human rights within the scope of these states’ positive obligations.  

In this case, the Court held that Switzerland failed to implement the positive obligations under Article 14 cj. Article 8 ECHR and Article 13 in light of Article 14 cj. Article 8 ECHR due to the lack of sufficient institutional and procedural safeguard for intersex female athletes before the CAS and SFT. It is important to note that the World Athletics is not situated within the Swiss territory. If the Court found that the DSD Regulations themselves had violated the ECHR, it would raise the question of how Switzerland can implement these positive obligations despite the fact that the World Athletics operates outside the Swiss border. Switzerland cannot control the World Athletics’ self-regulations in accordance with Swiss national law. Therefore, the DSD Regulations remain in force and Caster Semenya remains ineligible to participate in professional female athletics competitions. However, this case is not final, and Switzerland still has the option to refer it to the Grand Chamber of the ECtHR.