October 01, 2025
Dr. Antoine Duval & Dr. Faraz Shahlaei1
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Between the first and the eight of October, the Strasbourg Observers blog is hosting a symposium examining various aspects of the ECtHR’s ruling in Semenya v. Switzerland. The symposium was curated by Dr. Antoine Duval and Dr. Faraz Shahlaei. This first post in the symposium aims to familiarise the reader with Caster Semenya’s journey as an athlete and as an applicant by retracing the origins of the case and its tortuous procedural path through a variety of judicial bodies, delving further into the significance of the case and the reasons why it merits a special symposium on this blog. It also provides an overview of the posts which will follow in the coming days.
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On 10 July 2025, the Grand Chamber (GC) of the European Court of Human Rights (ECtHR) rendered its much-awaited judgment in Semenya v Switzerland. The ruling carries significant implications for the transnational governance of sport and the rights of athletes who are subject to the authority of international sports governing bodies (SGBs). More generally, it also sets important limits on the increasing authority of private regulators and adjudicators in the transnational legal space.
Caster Semenya is a South-African women born on 7 January 1991. As outlined in her autobiography, she grew up on a farm without electricity before turning to competitive running in her teens. In 2009, she rose to global fame with her victory in the 800m at the IAAF World Championships. It was also during this competition taking place in Germany that her gender was for the first time officially put in doubt and that she was subjected to invasive medical testing. Following her win in Germany, Semenya went on to win two more World Championships (in 2011 and 2017) and Olympic gold medals (in 2012 and 2016) in the same distance. By the end of the 2010s, she had become a household name and had signed a sponsorship deal with Nike. Yet, her dominance in the sport was also stirring up complaints from some of her competitors, who were openly doubting her femininity. In fact, Semenya is an intersex athlete, meaning that she bears sexual characteristics of both male and female types. This physiological condition affects the level of testosterone in her body, allegedly, giving her a competitive advantage.
As the controversy over Semenya’s participation in female competitions grew, in May 2011, the International Association of Athletics Federation (IAAF), which has since rebranded as World Athletics (WA), adopted the Regulations governing eligibility of females with hyperandrogenism to compete in women’s competition. In order to comply with these new rules, Semenya had to stop competing for six months while she was forced to take testosterone-suppressing medication, which affected her well-being and competitiveness. However, she was not the only one affected by these rules, and in 2014 an Indian athlete, Dutee Chand, decided to challenge the IAAF regulations at the Court of Arbitration for Sport (CAS). The CAS rendered its award in July 2015, siding with Chand and blocking the application of the 2011 Regulations (for more information on the case, see here). Semenya could run, and win, at the 2016 Rio Olympics, again.
In 2018, however, the IAAF adopted a new set of regulations: the infamous Eligibility Regulations for the Female Classification (Athlete with Differences of Sexual Development or the “DSD Regulations.” The DSD Regulations required that female athletes with certain intersex traits and naturally elevated testosterone levels reduce and maintain those levels below 5 nmol/L to be allowed to compete in a range of events. Semenya, who fell within the scope of these regulations, refused to undergo such treatment, arguing that it was both harmful and discriminatory. She decided to challenge the DSD Regulations before the CAS in Lausanne. Her most difficult race against judicial time was about to start, as she hoped to participate in the 2020 Olympics in Tokyo.
The CAS is a very peculiar arbitral tribunal, controlled and funded by the Olympic Movement through the so-called International Council of Arbitration for Sport. It enjoys exclusive jurisdiction over challenges against the decisions of most international federations. Simply put, athletes and clubs have no choice but to submit to its jurisdiction if they wish to participate in the international competitions organized by most International Federations, including by IAAF/WA.
In Semenya’s case, a CAS panel of three arbitrators was constituted. After a five-day hearing in February 2019, the panel rendered its award on 30 April 2019. The Panel acknowledged that the IAAF DSD Rules were discriminatory, but the majority of the arbitrators considered that this discrimination was proportionate (for extensive commentaries on the award, see here, here and here). Accordingly, the IAAF was deemed legitimate in dissociating the ‘sporting sex’ of Caster Semenya from her state-sanctioned sex.
Semenya challenged this award before the Swiss Federal Supreme Court (FSC), which is the sole authority under Swiss private international law to review international arbitral awards. The FSC promptly issued an order temporarily allowing Semenya to compete, but in August 2020 it ultimately decided that the CAS award was not contrary to Swiss ordre public. Notably, when it considered whether the award was discriminatory, it did not conduct a detailed assessment of the proportionality of the DSD Regulations, largely deferring to the considerations of the CAS (for more details on the judgment, see here and here).
By this point, Semenya was both running out of time (to participate in the 2020 Tokyo Olympic Games, now postponed to 2021 due to the COVID pandemic) and out of judicial avenues to contest the DSD Regulations. As a last resort, she lodged an application at the ECtHR in February 2021 arguing that Switzerland, through the decision of the FSC, had violated Articles 14 in conjunction with Article 8, Article 13 taken together with Articles 3, 8 and 12 and Articles 3, 6 and 8 taken alone.
The Chamber judgment in the case was delivered in July 2023 and attracted significant commentary (see here, here and here). It held that the ECtHR had jurisdiction under the Convention to decide the application against Switzerland and concluded that both the CAS and the FSC had failed to properly assess the validity of the DSD Regulations in light of the requirements of the Convention. In particular, Switzerland was deemed to have violated its positive obligations under Article 14 of the ECHR in conjunction with Article 8 because of:
For the same reasons, the Court also concluded that there has been a violation of Article 13 of the ECHR in relation to Article 14 in conjunction with Article 8 . Thus, while the Chamber did not take a decisive stance on the compatibility of the DSD Regulations with the ECHR, it condemned the judicial process that had led the CAS and the FSC to endorse them and called for a much more rigorous review of the compatibility of sports regulations with the Convention. Switzerland referred this decision to the GC which accepted the referral.
The GC ruling began by excluding two issues from the scope of the judgment. First, it sidelined the question of the independence and impartiality of the CAS since the applicant did not raise the issue in her application to the Court (paras 83-91), and second, in a unanimous vote, it declined to examine her claims under Article 3, as the Chamber had already declared them inadmissible (paras. 92–94). The GC then proceeded to examine claims under Article 6.1, 8, 13, and 14 of the ECHR. Before turning to the merits, however, it first considered the crucial question of admissibility.
The judges found unanimously that the applicant’s claims under Article 6.1 were admissible. They emphasised that Swiss law permits civil actions in respect of the facts at issue, that the CAS has its seat in Switzerland, that the FSC had reviewed the CAS award, and that Switzerland itself had not contested jurisdiction (paras 128-135). With regard to the remainder of complaints, the GC reached a different conclusion, however. By 13 votes to 4, it determined that it could not identify ‘specific circumstances’ connecting the other claims she raised to the territorial jurisdiction of Switzerland. Since the regulations were adopted by IAAF, a private entity based in Monaco, and the applicant was South African, the Court relied on its established case law on extraterritorial jurisdiction to declare the claims inadmissible (paras 136-152).
Focusing solely on the merits of Semenya’s claim under Article 6.1, the GC, by 15 votes to 2, concluded that Switzerland had violated her rights. In doing so, it started by stressing the compulsory nature of CAS arbitration, as well as the control exercised over the CAS by the SGBs (paras 199-210). The GC concluded that in cases involving the fundamental rights of an athlete, ‘respect for that individual’s right to a fair hearing requires a particularly rigorous examination of his or her case’ (para. 209). In Semenya’s case, the Court found that the FSC had not engaged in an ‘in-depth judicial review’ (para. 238), as it had failed to thoroughly assess several ambiguities and weaknesses in the reasoning of the CAS award (paras 211-237).
The judgment was accompanied by several concurring and dissenting opinions. Judge Šimáčková, in her partly concurring opinion, held that the majority should have examined the questions related to the independence and impartiality of the CAS, openly doubting whether the CAS meets the requirements of Article 6.1 in this regard. Judges Bošnjak, Zünd, Šimáčková, and Derenčinović dissented regarding the Court’s conclusion that Switzerland lacked territorial jurisdiction to examine the applicant’s complaints under Articles 8, 13, and 14. They elaborated on the specificities of the transnational governance of international sport by SGBs, and their control over CAS to conclude that the Court should have engaged with the substance of those claims. Finally, Judges Eicke and Kucsko-Stadlmayer disagreed with the intensity of the review that the majority required from the FSC when assessing CAS awards, and dissented from the finding of a violation of Article 6(1).
As seasoned observers of the ECtHR will know, GC rulings, which provide the most authoritative interpretation of the ECHR, are rare. We count only 5 such rulings in 2024 (to be compared with the 51 Grand Chamber rulings at the CJEU). This rarity speaks for the importance of the case at hand, but it is certainly not the main reason why the case warrants a symposium on this blog. From a substantive perspective, the Semenya ruling is not only the first GC ruling related to the transnational private governance of international sport, but also the first time in the history of the Court that it engaged with alleged violations resulting from a compulsory private arbitration.
Moreover, this judgment will have transnational effects reaching beyond Europe’s borders. In Semenya, the ECtHR, acting as a regional human rights body, scrutinized and effectively reshaped the accountability of an arbitral tribunal that exercises global jurisdiction over the most important disputes arising out of a specific type of human activity: international sport. The CAS’s jurisprudence affects millions of athletes and thousands of sporting entities (clubs, national and international federations, etc.) worldwide. As such, the judgment does not only transcend the immediate parties to the proceedings by carrying important third-party effects, it transcends as well the regional and institutional boundaries within which the Court was originally conceived.
Furthermore, this judgment will most likely have implications at numerous levels. It will impact future litigation on the eligibility rules of international SGBs for female competitions, which is currently an extremely controversial matter regarding the participation in female competitions of intersex and even more so transgender athletes. It will affect the legal reasoning of CAS panels across the board, and has potential to trigger a reform of the institutional structure of the CAS. It should push the FSC, and maybe the Swiss legislator, to change their approach to CAS arbitration, by taking a more active role in reviewing CAS awards. In turn, this would force international SGBs to better consider the rights of those affected by their regulations when devising and enforcing them. Finally, it could very well inspire claimants subjected to compulsory arbitration in other fields of life to challenge the way in which awards are being scrutinized by national courts. In short, it can safely be predicted that it will have transformative consequences, even though their precise scope remains unknown at this point.
Ultimately, for Caster Semenya this case was never about a financial compensation. She neither sought nor received any (paras. 241-44). She fought to prove that she endured injustice in the hands of a transnational private regulatory regime nested at the heart of the Council of Europe that exercised control over her body, her career, and her personal choices. While she did win (even if only partially) before the ECtHR, one should not forget that she will not get her career back. For athletes, a year or even a month are very precious in a short career, this means that the courts, be it the CAS or the FSC, which have a (relatively) quick say on their challenges bear a special responsibility. Thanks to Caster Semenya this responsibility has been now fully recognized by the GC and comes with specific expectations which will benefit athletes in the future.
The symposium opens with Sarah Thin’s blog focusing on the GC’s approach to the territorial jurisdiction of Switzerland and the Court’s denial of the admissibility of several of Caster Semenya’s claims. Yet, as analyzed in detail in the pieces by Michele Krech and Lena Holzer, the judgment’s conclusions with regard to the FSC’s lack of rigour in reviewing the CAS award will affect the way in which the current WA Regulations and other sporting regulations related to the eligibility of intersex and trans athletes to participate in female competitions will be assessed in the future by the CAS, the FSC, as well as other national courts in Europe. The implications of the judgment for Switzerland and, more specifically, the supervision of the CAS by the FSC via the setting aside proceedings of CAS awards are discussed in the blog by Emilie Weible, Claudio Cerqueira and Marjolaine Viret.
From a broader perspective, Daniel Rietiker contextualizes the judgment in the existing jurisprudence of the ECtHR on transnational sports governance and provides a fine-grained analysis of its main points of departure and innovation. While Daniela Heerdt’s blog elucidates the importance of the ruling for the wider human rights and sport movement and the right to access to remedy of athletes and other sportspeople. Finally, our blog concludes by reflecting on our involvement in the process leading up to the judgment and by analysing the contribution it makes to re-opening the question of the lack of independence and impartiality of the CAS.
Note: The authors of this piece were involved in the Grand Chamber proceedings through a third-party intervention
Strasbourg Observers is an academic blog that discusses recent developments at the European Court of Human Rights. The editorial team of Strasbourg Observers is based at the Human Rights Centre of Ghent University and the Centre for Government and Law of Hasselt University.
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