The Semenya Judgment and Women’s Eligibility in Sport: Nothing Changes, Everything Does!

Dr. Michele Krech¹

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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. An introduction to the symposium and the case can be found here.

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Introduction

For over a decade, Caster Semenya and other female athletes with differences of sex development (DSDs) have been challenging the legal validity of eligibility regulations that disqualify them from women’s track and field competition. These regulations, issued by World Athletics, classify women with a Y chromosome, due to a DSD, as “biological males”, despite their female legal sex (assigned at birth) and gender identity. Last month, the Grand Chamber (GC) of the European Court of Human Rights issued a landmark judgment partly in Semenya’s favour, finding that Switzerland, in its handling of Semenya’s legal challenge against World Athletics, violated her right to a fair hearing. In particular, the GC held that the Swiss Federal Supreme Court (FSC)—and, before it, the Court of Arbitration for Sport (CAS)—failed to conduct a sufficiently rigorous examination of Semenya’s claims that World Athletics’ so-called ‘DSD Regulations’ are discriminatory and violate her fundamental rights to privacy, bodily and psychological integrity, economic freedom, and human dignity.

What does this judgment mean for women’s eligibility rules in international sport? Immediately speaking, nothing. The judgment is binding only on Switzerland, which, as the GC noted, ‘played no role in the drafting or application of the DSD Regulations, which were passed by a Monegasque private-law association’ (para. 98) The judgment therefore does not directly invalidate World Athletics’ regulations. However, the GC’s reasoning casts serious doubt on the compatibility of these regulations, and others like them, with human rights law. If the CAS and/or the FSC (among other courts) conduct the type of in-depth examination demanded by the GC, they cannot reasonably conclude that World Athletics’ eligibility regulations are lawful. In other words, the GC’s judgment has made it very difficult for these regulations to withstand future, and inevitable, legal challenges against them.

This is because the GC held that Switzerland violated Semenya’s right to a fair hearing precisely because the CAS and the FSC glossed over numerous serious problems with the DSD Regulations themselves—problems that World Athletics has yet to resolve and that must be considered in any future assessment of the legal validity of female eligibility regulations in sport. A brief review of each of these unresolved problems—compliance challenges, evidentiary shortcomings, breaches of privacy and medical confidentiality, restrictions on economic freedom, and a range of other real, even if unintended, harms—makes clear that World Athletics will face an uphill battle in defending its eligibility regulations going forward, especially as subsequent amendments have exacerbated the very problems identified by the GC.

Five Fatal Flaws in (the Examination of) World Athletics’ Female Eligibility Regulations

According to the GC, the circumstances of Semenya’s case called for a ‘particularly rigorous’ examination of her claims. Those circumstances include that Semenya’s fundamental rights to privacy, bodily and psychological integrity, human dignity, and economic freedom are at stake; that the regulations affecting those rights are issued by a private entity; that this entity imposes mandatory CAS arbitration on athletes; and that the FSC is the only domestic court with jurisdiction to review CAS awards. According to the GC, such review—despite being limited to assessing compatibility with Swiss public policy—must be ‘in-depth’ and ‘commensurate with the seriousness of the personal rights at issue,’ especially given the ‘structural imbalance’ of power that allows sport governing bodies ‘to dictate conditions in their relationship with sportspersons’ (para 238).

The GC concluded that the examination of Semenya’s claims in Switzerland was not sufficiently rigorous, identifying five key failings, each of which amounts to a failure to address a serious concern about the lawfulness of the DSD Regulations. The clear implication is that, left unresolved, these concerns render the regulations incompatible with the European Convention on Human Rights, particularly the prohibition of discrimination, the right to respect for private life, and the right to an effective remedy. While the GC stopped short of deciding whether the five identified problems necessarily mean that the DSD Regulations violate those substantive Convention rights, its judgment strongly implies that they do. The defects in the reasoning of the CAS and the FSC amount to defects in World Athletics’ female eligibility regulations themselves—defects that should seemingly be fatal to the organisation’s next effort to defend them in court.

1. Compliance with the regulations is not realistically achievable.

The first problem identified by the GC is that the DSD Regulations were prohibitively difficult to comply with. As shown in Semenya’s case, even an athlete who diligently follows prescribed testosterone suppression protocol may still experience fluctuations above the permitted threshold and therefore face disqualification. The GC noted that although the CAS properly recognised that ‘a regulation which is impossible or excessively difficult to apply cannot be characterised as a proportionate interference,’ it improperly ‘left open’ this crucial question, which was ‘not only at the heart of the applicant’s detailed argument but also decisive for the outcome of the dispute’ (paras. 224-225).

In particular, the CAS dismissed compliance concerns as speculative, despite medical evidence showing that Semenya’s testosterone levels had fluctuated significantly while she was following suppression protocol pursuant to a previous version of World Athletics’ female eligibility regulations. The GC concluded that by ‘put[ting] to one side’ these serious concerns, the CAS ‘render[ed] ambiguous its reasoning in relation to proportionality’ (paras. 225, 229). The FSC, in turn, glossed over this ambiguity by ‘merely not[ing] that the CAS had not definitively endorsed the DSD Regulations but had expressly reserved the right to re-examine the proportionality of those regulations as applied in a (different) particular case’ (para. 228). The GC therefore seemingly recognised that athletes should not be forced to undergo (again, each time World Athletics amends its regulations) the very interventions at issue to establish that compliance is difficult. Accordingly, compliance challenges, including under previous iterations of the regulations, can no longer be dismissed as merely speculative.

Further, since the CAS and the SFC issued their decisions, World Athletics has only made compliance more difficult. First, World Athletics lowered the testosterone threshold for women and extended the time they must continuously maintain their testosterone below it to regain eligibility. Second, World Athletics walked back a provision—added after the CAS hearing to placate the panel’s compliance concerns—that excused temporary and inadvertent spikes in testosterone. Third, World Athletics just introduced an even more stringent approach for athletes not already declared eligible under previous versions of the female eligibility regulations: Going forward, any athlete with a Y chromosome will be ineligible to compete in the women’s category unless they are completely insensitive to androgens—something that is outside any athlete’s control—thus completely removing any pathway to eligibility for women with certain DSDs.

In summary, World Athletics has made compliance more burdensome for women subjected to previous iterations of its regulations, and impossible for women with similar DSDs (and likewise for trans women) going forward. Given the GC’s characterisation of compliance as a decisive factor in evaluating the reasonableness and proportionality of the DSD Regulations, it’s difficult to see how World Athletics will be able to justify this approach—especially since it now requires all women to undergo genetic testing, expanding both the range of human rights-related legal risks and the number of athletes whose rights are affected. These developments only further undermine the reasonableness and proportionality of World Athletics’ regulations.

2. The regulations cover disciplines without specific evidence of performance advantage.

The second problem identified by the GC is that the DSD Regulations applied to track events where there is a dearth of scientific evidence linking higher testosterone to performance advantage. Among the many evidentiary shortcomings in this regard, the GC highlighted one as especially damaging to the reasonableness and proportionality of the regulations: the lack of evidence supporting the inclusion of the 1500m and 1-mile races in the list of restricted events.

A World Athletics study cited before the CAS showed a correlation between higher testosterone and better performance in only five women’s events—the 400, the 400m hurdles, the 800m, hammer throw, and pole vault—while all other 16 events showed no such correlation. In the absence of further evidence, the CAS found that the inclusion of the 1500m and 1-mile races seemed to be based on speculation. While recognising the inadequacy of such speculative evidence, the CAS nevertheless concluded that the scope of the restricted events, as a whole, was not arbitrary. Noting that it did not have the power to rewrite the regulations, the CAS instead invited World Athletics to consider deferring the application of the regulations to the longer distances. In doing so, said the GC, the CAS again ‘left open’ a critical question (paras. 231-232).

The FSC, for its part, also failed to meaningfully engage with this question. The GC found that ‘[d]espite these misgivings on the part of the CAS, the [FSC] paid little attention to the question of whether the restricted events had been selected arbitrarily’ (para. 233). This omission was particularly serious because, as the GC emphasised, ‘the question of whether the DSD Regulations had been specifically framed to target the applicant went to the heart of her case’ (id.). The GC therefore concluded that the FSC ‘did not … sufficiently act on the doubts expressed’ by the CAS (para. 231), especially given the significant implications for Semenya’s participation in international competition (para. 233).

This evidentiary gap is likely to become even more damaging for World Athletics in future legal proceedings. World Athletics has not only ignored the CAS’ recommendation to defer application of the regulations to the 1500m and 1-mile events, but has, instead, extended its regulations to cover all track and field events, without producing any event-specific supporting evidence. Meanwhile, scientific reviews and new studies have challenged assumptions about performance differences between women based on testosterone levels. World Athletics, by contrast, has pointed to evidence that testosterone suppression only partially mitigates purported performance advantage to support its new approach of outright disqualifying most women with DSD, as well as trans women (see post from Lena Holzer, forthcoming), from women’s competition. A fresh assessment of the evidence will be necessary and, as the GC’s judgment makes clear, far greater precision, rather than World Athletics’ continued and increasingly more tenuous speculation, will be required. Moreover, even if—and this is a big if—a court can find a rational connection between blanket exclusion of virtually all women with a Y chromosome and the amorphous objective of fair competition, scientific evidence does little to answer the ultimate question of proportionality.

3. Application of the regulations inevitably violates privacy and confidentiality.

The third problem identified by the GC is that the DSD Regulations led to public disclosure of athletes’ private and confidential medical information. As the CAS acknowledged, disclosure of athletes’ DSD status is ‘likely to be an inevitable detrimental effect of the DSD Regulations.’ For instance, this information can be easily inferred when an athlete qualifies at the national level for an international competition but then does not show up. Nonetheless, the CAS concluded that such breaches of privacy and confidentiality did not render the regulations disproportionate, having regard to the legitimate interest of fair competition being pursued.

According to the GC, however, the FSC ‘did not sufficiently act on the fact that the CAS had not fully decided this question, despite the fundamental consequences it had for the applicant’ (para. 234). Instead, the FSC ‘merely stated that the CAS’s conclusion was not incompatible with public policy,’ and accepted, without further scrutiny, that any infringement on Semenya’s private sphere was justified by the interest in competitive fairness (id.).

In future cases, the CAS and the FSC will have to take far more seriously the privacy and confidentiality violations that are not incidental to, but rather structurally embedded in, World Athletics’ regulations—despite the organisation’s claims to the contrary. All the more so given some of the regulatory amendments noted above, which started by requiring athletes to sit out of international competition for a longer period of time and which now subject every single athlete participating in women’s competition to the possibility of instant disqualification based on a mandatory genetic test. These highly visible consequences make it impossible to protect athletes from unwanted disclosure of their DSD status, exposing them to the, sometimes life-threatening, public scrutiny and stigmatisation that often follows.

Bringing a legal challenge also often forces athletes to make their medical diagnoses public, adding another layer of exposure, which deters many from ever coming forward. When brave athletes do so nonetheless, it will no longer be enough for the CAS to simply state, and the FSC to uncritically accept, that it ‘has regard to the likelihood of some harm arising from the inferential disclosure of confidential medical information’ without giving that regard meaningful weight in the proportionality analysis. When such weight is given, proportionality becomes extremely difficult to establish.

4. The regulations endanger the profession and subsistence of athletes.

The fourth problem identified by the GC is that the DSD Regulations jeopardised the ability of athletes to practice their profession, putting their careers and economic livelihoods at risk. Although this issue was not squarely considered by the CAS, the GC made clear that it warranted closer scrutiny by the FSC. Instead, the FSC ‘rejected, without thorough examination’ Semenya’s argument that her situation was comparable to that of the footballer, Francelino Matuzalém (para. 235). Matuzalém was banned from competing unless he paid a nearly €12 million debt, while Semenya was banned from competing unless she underwent coerced medical interventions. If the former breaches public policy, it’s difficult to see how the latter does not.

As the GC explained, ‘in both cases what was at stake was the ability of a sportsperson to satisfy the conditions laid down by the relevant sport governing body in order to be able to continue his or her professional activity, and the proportionality of those conditions in view of their impact on the exercise of fundamental rights. (para. 235). Just as FIFA imposed a catch-22 on Matuzalém by demanding payment of an exorbitant sum of money while simultaneously depriving him of the means to earn it, World Athletics imposed a parallel dilemma on Semenya and other athletes by demanding that they alter and harm their bodies—the very bodies on which they depended to make a living.

These economic risks are only heightened by World Athletics’ subsequent regulatory amendments. First, the organisation extended the regulations to apply to all events, further limiting athletes’ professional options. Then, it extended the time period of provisional ineligibility, during which athletes lost access to competition, prize money, sponsorships, and other commercial opportunities, and also required more aggressive testosterone suppression, with potentially greater physical and psychological side effects that impair professional performance. Next, World Athletics reduced tolerance for involuntary non-compliance, placing athletes’ careers in a state of perpetual jeopardy. And finally, World Athletics now bars virtually all women with certain DSDs, along with trans women, from women’s competition, thereby excluding them entirely from this professional sphere. The result is completely excising from sport an already marginalised community. In light of these escalating harms, it’s hard to imagine World Athletics’ female eligibility regulations withstanding legal scrutiny the next time they are challenged.

5. Despite World Athletics’ rhetorical denials, the regulations cause real harm.

The fifth and final problem identified by the GC is that World Athletics’ stated intentions regarding the DSD Regulations were fundamentally at odds with their actual, and seriously harmful, effects. In particular, the GC found that the FSC uncritically accepted World Athletics’ position that the regulations do not redefine or question the sex or gender identity of athletes or call into question whether athletes are sufficiently female. The GC emphasised that by concluding that the regulations were not ‘per se, incompatible with human dignity’ based on their purported intent, both the CAS and the FSC ignored what really matters:

The Court perceives in this reasoning the absence of a sufficiently rigorous examination of whether the impugned outcome was compatible with fundamental rights – such compatibility being an essential element of public policy – in that its focus was not the consequences complained of by the applicant but rather the theoretical aim of the regulations which had resulted in those consequences, especially since the Federal Supreme Court itself immediately acknowledged that one consequence of the regulations was that “biological characteristics” could “transcend the legal sex or gender identity of a person” (para. 236, emphasis added).

Accordingly, World Athletics can no longer shield itself with hypocritical assertations that it ‘does not judge or question gender identity,’ while classifying certain women, legally and socially recognised as such, as ‘biological males.’ Likewise, World Athletics’ claims that it theoretically ‘respects the dignity of all individuals, including individuals with DSDs,’ and ‘wishes the sport of Athletics to be as inclusive as possible,’ do nothing as a matter of law to justify its regulations. World Athletics must instead confront their actual impact in practice. If the entire range of physical, psychological, social, and economic harms inflicted on athletes—most of whom are teenagers and young adults—are given the careful consideration that the GC has demanded, World Athletics’ female eligibility regulations will be extremely vulnerable to future legal challenges.

Facing the (Questionable) Evidence and the (Unquestionable) Harm of Female Eligibility Regulations

For now, World Athletics’ female eligibility regulations, in their most recent iteration, remain in force. However, the GC has now opened the door to legal challenges to such regulations in track and field and beyond. On the one hand, even after a decade of litigation, legal redress comes incrementally (see forthcoming post from Daniele Heerdt) and indirectly: Justice trickles through the procedural steps and jurisdictional boundaries that only occasionally allow athletes to assert their human rights. And when Semenya’s or other affected athletes’ substantive human rights claims are finally addressed, scepticism will still be warranted (see forthcoming post from Antoine Duval and Faraz Shahlaei).

On the other hand, the GC’s judgment unequivocally directs the FSC to take athletes’ rights more seriously, putting pressure equally on the CAS. The five flaws identified by the GC in the examination of Semenya’s complaint stem directly from flaws in World Athletics’ regulations themselves. The upshot of the GC’s judgment is therefore clear: Courts can no longer gloss over these flaws. Instead, they must face them head on, by scrutinising the (shaky) evidentiary foundations of female eligibility regulations and giving real weight to the (serious) harms they cause. The GC’s reasoning strongly suggests that the five oversights it identified would prove fatal to the regulations if properly considered.

This outcome is even more likely given that the problems with World Athletics’ female eligibility regulations have been exacerbated by recent amendments. By piling on the evidentiary doubts and harmful consequences, World Athletics has only further undermined the reasonableness and proportionality of its regulations. These doubts and harms can no longer be brushed aside by simply invoking the special context of sport and the malleable objective of competitive fairness. Rather, as the GC has now made abundantly clear, the sporting context is not a justification for deferential review of rules by courts, but rather the opposite: it calls for an especially rigorous analysis of sports rules that affect the human rights of athletes.

1. Disclosure: The author was retained as a consultant by counsel for Caster Semenya in the initial proceedings before the Court of Arbitration for Sport and contributed to the submissions of several third party interveners in the proceedings before the European Court of Human Rights. ↩︎