October 06, 2025
Dr. Lena Holzer
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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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The case brought by Mokgadi Caster Semenya to the European Court of Human Rights (ECtHR) will be remembered as a landmark in the struggle for human rights. It will hopefully lead to improvements in the human rights protections not only for women athletes with variations in sex characteristics but for sportspeople in general.
Given the hope that Semenya will strengthen the enjoyment of human rights in sports, I will analyse how the case could help embed a human rights perspective into future disputes over gender-based eligibility rules. I will focus, in particular, on its potential to protect the rights of transgender athletes, despite the fact that trans persons were not directly involved in Semenya. However, debates about gender-based eligibility rules in sports increasingly centre on trans persons, especially trans women, yet human rights considerations are often overlooked.
As discussed in detail elsewhere in this symposium, the Semenya case concerns a challenge to the so-called ‘testosterone regulations’ used by World Athletics. After having lost her case at the Court of Arbitration for Sport’s (CAS) and the Swiss Federal Supreme Court (FSC), the Chamber of the ECtHR ruled in favour of her in 2023, finding a violation of Article 14 of the European Convention on Human Rights (ECHR) in conjunction with Article 8 and of Article 13 in relation to Article 14 in conjunction with Article 8. On 10 July 2025, the Grand Chamber reversed the Chamber judgment by declaring the claims under Articles 8, 13, and 14 inadmissible. However, it found a violation of Semenya’s right to a fair trial as protected by Article 6(1), which constitutes a significant win for Semenya and other sportspeople since it acknowledges that current justice mechanisms in the world of sports are insufficiently protecting human rights.
Persons with variations in sex characteristics, like Semenya, and trans persons are often confounded, despite generally being different groups with distinct characteristics, lived experiences and human rights concerns. Whilst the Grand Chamber did not explicitly mention trans athletes in its judgment, the Chamber had emphasised the differences in sporting rules concerning trans athletes and athletes with variations in sex characteristics. The reason for that was that, although Semenya was assigned female at birth and has always identified as a woman, she has sometimes been wrongly described as trans, even by World Athletics and Switzerland (para 197 Chamber).
Trans persons are individuals who do not identify with the gender that was assigned to them at birth. They often make experiences of pathologisation, discrimination and exclusion, inter alia from sports, on the basis of their gender identity.
In contrast, persons with variations in sex characteristics, sometimes also called ‘intersex persons’ or ‘persons with DSD’, ‘are born with sex characteristics that are either female and male at the same time or not quite female or male or neither female or male.’ Their main human rights concerns relate to bodily integrity and non-discrimination on the basis of their sex characteristics. While many intersex persons are like Semenya comfortable with the gender assigned at birth, some are also trans and identify with a different gender. Thus, although generally distinct, the two groups can overlap to some extent.
The Chamber elaborated on the different situations of trans athletes and those with variations in sex characteristics. Here, the Chamber made unfounded remarks about certain rules excluding trans persons from sports without conducting a proper human rights analysis of these rules. It accepted dubious assumptions about biology and trans-specific health care, derived from a questionable source (para 69-70, 198 Chamber). The Chamber could have avoided these ill-informed references, as they neither contributed to the analysis of the rules affecting Semenya nor rested on a proper human rights assessment of the regulations concerning trans athletes. In contrast, the Grand Chamber remained silent on trans athletes. It focused on the facts of the case and the relevant rules and procedures affecting Semenya, which seems preferable and avoids prejudicing future cases.
Over the last few years, sport federations have increasingly adopted stringent rules excluding trans athletes from competitions that align with their gender identity. For instance, World Aquatics adopted rules in 2022 that make it de facto impossible for trans women, as well as most women with variations in sex characteristics, to compete in women’s events. Similarly, World Athletic has demonstrated its decision to ignore the ECtHR’s judgments by issuing new eligibility rules briefly after the Grand Chamber’s decision in Semenya. This new set of rules makes it entirely impossible for trans women to compete in World Athletics women’s events, while also banning women with XY chromosomes, who do not have Complete Androgen Insensitivity Syndrome. These examples shows that access to competitive sports is increasingly restricted for both trans persons and persons with variations in sex characteristics.
A promising outcome of Semenya is that the FSC will have to conduct a more rigorous review of CAS awards that involve questions of personal rights. Following Mutu and Pechstein, the Grand Chamber held that the arbitration at the CAS in Semenya – and arguably most CAS arbitration – was compulsory, which meant that Article 6(1) guarantees applied (para 212-15). Given the compulsory nature of the arbitration and the fact that the case concerned restrictions of fundamental rights, such as the right to privacy, bodily integrity and dignity, through regulations by a private entity, it concluded that ‘a particularly rigorous examination of the applicant’s case was needed (para 217).’ This rigorous review was also indicated by the ‘the structural imbalance which characterises the relationship between sportspersons and the bodies which govern their respective sports (para 209)’.
Accordingly, following Semenya, the FSC will need to broaden its review of the compatibility of CAS awards with Swiss ordre public in cases involving restrictions of athletes’ personal rights. Such cases may also concern rules governing the participation of trans persons in sports, which, similar to the rules at stake in Semenya, interfere with the athletes’ right to privacy, bodily integrity and dignity.
Several conclusions by the Grand Chamber could be particularly significant for future cases concerning trans athletes. The Grand Chamber found that the FSC paid too little attention to the doubts raised by the CAS regarding whether there was sufficient scientific evidence to justify the selection of restricted events to which the testosterone rules applied (para 231-233). This reflects the principle that rules restricting the participation of athletes must be based on evidence proving their proportionality, which could also apply to cases involving trans athletes, as clear evidence justifying the increasingly stringent restrictions or total bans on trans women in women’s sports is lacking.
Another key finding of the Grand Chamber was that the FSC failed to adequately consider the observation of the CAS that Semenya struggled to comply with the relevant rules due to unintended fluctuations in her testosterone levels (para 223-224, 228). The ECtHR thus indirectly acknowledged that the possibility of complying with the rules is a relevant factor in the proportionality test carried out by the CAS. This conclusion could also inform cases involving trans athletes, who may face similar challenges because of experiencing unintended bodily reactions to medical treatment.
The Grand Chamber further concluded that the FSC did not adequately address the risk that the results of testosterone test could be indirectly disclosed – a risk that had, in fact, been recognised by the CAS. Such disclosure could, for example, occur when an athlete’s absence from competitions could allow the public to infer that she was disqualified because of her testosterone levels (para 234). By recognising that the FSC should have reviewed the CAS’s reasoning on the proportionality of the direct or indirect disclosure of private medical information, the Grand Chamber implicitly affirmed that the right to privacy is paramount in cases involving gender-based eligibility rules. This has particular significance for trans athletes, who likewise often experience intrusions into their right to privacy by having their trans status and private information, including health data, publicly revealed and discussed.
Hence, the Grand Chamber’s findings on Article 6 should prompt a stricter FSC review of CAS awards, which can also benefit trans athletes.
While the Grand Chamber declared the claims under Article 8, 14 and 13 inadmissible in Semenya – a decision criticised by major civil society organisations as well as four dissenting judges (see, Thin in this symposium) – it left the door open for future claims under these provisions. As this could be significant for trans athletes, whose Article 8 and 14 rights are curtailed by the increasingly stringent gender-based eligibility rules, I will explore how the ECtHR might assess such claims in the future.
In Semenya, the Grand Chamber rejected jurisdiction over the claims raised under Articles 8, 13 and 14, finding no jurisdictional link of these claims to Switzerland. It therefore ruled only on the question whether the FSC’s decision satisfied procedural guarantees under Article 6. However, the Grand Chamber indicated three ways in which a jurisdictional link between Switzerland and complaints under Articles 8, 13 and 14 could be established in sports-related cases (para 98). Such a link could be established if:
Given the current structure of international sports governance, the second scenario is the most likely, as over 40 international sport federations are registered in Switzerland. Thus, the ECtHR might find jurisdiction to hear complaints under Articles 8, 13 and 14 as well as other convention rights (e.g. Art 3) in cases involving gender-based eligibility rules if the rules are issued by a Swiss-based federation.
Indeed, the Grand Chamber’s discussion of Platini confirms the view that rules by Swiss-based federations could be examined under Article 8 and 14. It noted that Platini involved FIFA, a federation registered in Switzerland, while Semenya concerned the rules of a Monaco-based federation, World Athletics. This difference allowed an Article 8 claim in Platini but not in Semenya (para 141).
Hence, if challenges against rules governing the participation of trans athletes in sports reach the ECtHR, the Court could examine claims under Article 8 and 14 when the rules involved were issued by federations incorporated under Swiss law. This makes Strasbourg a promising forum for protecting the rights of trans athletes, given the Court’s caselaw on the rights of trans persons. In particular, the Court has recognised the right to non-discrimination based on gender identity (e.g., A.M. and Others v Russia) and the right to legal gender recognition, which must be effective and accessible (e.g., Christine Goodwin v UK; X and Y v Romania). Both rights appear to be undermined by the increasingly restrictive rules and outright bans of trans women in women’s sports.
In future decisions on rules concerning trans athletes, the CAS, the FSC and the ECtHR can also be inspired by emerging decisions of domestic courts, such as a recent judgment in Belgium. As highlighted by Duval, on the same day the Grand Chamber ruled in Semenya, a Belgian first-instance court held that a quasi-ban of all trans women from women’s cycling competitions imposed by the Union Cycliste Internationale (UCI) and the Belgium cycling federation was discriminatory. The rules required trans women athletes to prove they began suppressing testosterone before puberty or by age 12, which, as I argued elsewhere, is nearly impossible given the lack of legal and accessible gender-affirming care for trans girls at that age.
The judgment found that rules restricting the access of trans women to women’s competitions may follow the legitimate aim of promoting fairness. However, it declared the specific rules disproportionate as they failed to show how a complete ban of trans women was necessary for achieving the aim. By following a clear human rights analysis, it provided a good example for future decisions by other courts and the CAS.
Interestingly, the Belgian court relied in its proportionality analysis on the Framework on Fairness, Inclusion and Non-Discrimination on the Basis of Gender Identity and Sex Variations (2021). The framework was established by the International Olympic Committee (IOC) to guide sport federations in developing gender-based eligibility rules that guarantee human rights. As the Belgian court noted, it emphasises that sporting rules must not rely on an unverified presumption that trans persons have an unfair or disproportionate advantage (Principle 5). Moreover, any restrictions must be based on robust and peer-reviewed research proving that the restrictions are proportionate vis-à-vis the aim to ensure safety and fairness (Principle 6). By relying on the IOC’s framework, the Belgian court highlighted the framework’s value in guiding law- and policymakers in decisions related to gender-based eligibility rules. This illustrates how a normative framework developed by a non-state actor like the IOC can promote human rights by influencing not only private bodies but also state institutions.
The judgment by the Belgian court could further inspire the FSC and other domestic courts to assert jurisdiction in sports-related cases concerning human rights. Although the UCI and the Belgian Cycling Federation argued that the CAS had exclusive jurisdiction over the matter, due to an arbitration clause in the gender-based eligibility rules (para 40), the Belgian court nevertheless claimed jurisdiction over the case. It found that discrimination contravenes Belgium’s international ordre public, which allowed it to rule on discriminatory provisions in contracts from other legal orders if a jurisdictional link exists. In this case, the jurisdictional link was established by the fact that the cyclist was based in Belgium (para 41–43). This reasoning could serve as an example for other domestic courts to accept similar claims and encourage the FSC to broaden its definition of ordre public to include direct horizontal discrimination in reviews of CAS awards.
While Semenya did not directly concern trans athletes, the Grand Chamber’s judgment might lead to better human rights protections also for trans persons. If Switzerland wants to avoid being reprimanded for ECHR violations, the FSC will need to conduct a more rigorous review of CAS awards that concern personal rights, including those concerning restrictions of trans athletes’ participation in sports. Moreover, in cases involving Swiss-based federations, the ECtHR may be able to assert jurisdiction over claims under Article 8 and 14, which would allow it to examine whether rules restricting or outright banning trans persons from certain competitions violate their right to private life and non-discrimination. While the Grand Chamber could have been more expansive in its ruling – as analysed in other blog posts in this series – the Semenya decision is nevertheless good news for sportspeople, including trans athletes.
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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