Caster Semenya wins landmark ruling on fair trial rights

The European Court of Human Rights (ECHR) has found that South African Olympian Caster Semenya was denied a fair trial by Switzerland’s legal system, marking a significant milestone in her ongoing legal battle against regulations requiring athletes with differences of sex development (DSD) to medically alter their natural hormone levels to compete.

In a Grand Chamber judgment delivered on Thursday, the court ruled by 15 votes to two that the Swiss Federal Supreme Court failed to conduct a sufficiently rigorous review of Semenya’s appeal against the 2019 decision by the Court of Arbitration for Sport (CAS), which had upheld World Athletics' so-called “DSD Regulations”.

These rules compel female athletes with naturally high testosterone levels to undergo hormone suppression therapy to compete in certain events.

The court found that Switzerland had violated Semenya’s rights under Article 6(1) of the European Convention on Human Rights, which guarantees the right to a fair hearing.

The judges held that the Federal Supreme Court’s review of the CAS award was too limited, especially given the fundamental rights at stake, including bodily autonomy and the right to compete in one’s natural category.

As a result, Semenya had not benefited from the necessary safeguards required by the Convention.

The judgment found that, although the CAS is not a state body, its mandatory and exclusive jurisdiction imposed by sports federations such as World Athletics creates an imbalance of power.

Athletes have no choice but to submit to this process if they want to compete internationally.

The ECHR said that this structural inequality, combined with the nature of the rights affected, required a particularly rigorous review by Switzerland’s top court, something it failed to provide.

Semenya had argued that the regulations not only impacted her career but also infringed on her bodily integrity and were discriminatory.

While the Grand Chamber ruled her complaints under Articles 8 (right to private life), 13 (right to an effective remedy), and 14 (prohibition of discrimination) inadmissible, on the basis that they fell outside Switzerland’s jurisdiction, it emphasised that once she brought the case before the Federal Supreme Court, Switzerland assumed responsibility for ensuring her right to a fair legal process.

The court awarded Semenya €80,000 (about R1.6 million) for legal costs, though she had not sought damages.

The decision does not directly overturn the DSD regulations but opens the way for further legal challenge and scrutiny of how national courts handle arbitration decisions involving fundamental human rights.

Responding to the outcome, Professor Tshepo Madlingozi of the South African Human Rights Commission, which was an intervening party in the case, said the decision affirms that “sportspeople are not outside the scope of human rights”.

He added: “This is a victory not only for Caster but for all athletes who face discrimination under the guise of regulation. The court made it clear that institutions such as World Athletics cannot be allowed to impose conditions that violate bodily autonomy without rigorous judicial oversight.”

Madlingozi also emphasised the broader significance of the judgment in challenging discrimination based on gender, race, and biological diversity.

“Semenya’s case is about more than sport, it is about dignity, fairness, and recognition,” he said. “She did not cheat. She simply wanted to compete as she was born. This ruling is an important reminder that regulations must comply with human rights principles, especially when they affect marginalised groups.”

Reacting to the judgment, Semenya said: “I have waited 15 long years for this judgment. Today, my patience in this journey has been rewarded with a result that will pave the way for all athletes’ human rights to be protected. I have given up what I wanted in the hope that others may have what they need. I hope this victory will inspire young women to be and to accept themselves in all their diversity.”

Her lawyer, Gregory Nott of Norton Rose Fulbright South Africa, called it “a resounding victory not only for Caster but for the principles of equality, fairness, and bodily autonomy in international sport”.

He added: “The court recognised the imbalance that athletes like Caster face when challenging powerful governing bodies. It is a reminder that all sportspeople are entitled to fundamental human rights, and those rights must be protected.”

Minister of Sport, Arts and Culture Gayton McKenzie praised the ruling: “Caster Semenya has become the face of defiance against injustice in global sport, and this victory in court is a victory for every African child. South Africa is proud of her, and we will walk every step of this journey with you, Caster, until justice is not only seen, but felt. We can’t wait to see you running again.”

Semenya, a two-time Olympic gold medallist in the 800 metres, has not been able to compete in her signature events for several years due to the DSD rules.

Despite repeated legal setbacks, she has remained resolute in challenging what she and her supporters have described as coercive, unscientific, and discriminatory practices targeting athletes born with naturally higher testosterone levels.

The full judgment from the European Court is expected to influence future litigation and regulation in sport, especially around the treatment of intersex and gender-diverse athletes.

It is also likely to increase pressure on sporting bodies to reform policies that disproportionately affect athletes from the Global South, many of whom lack access to legal and medical support.

The case began in 2019 after World Athletics introduced the DSD regulations. Semenya filed an appeal with CAS, which upheld the rules, citing the need to ensure fairness in women’s sport.

She then appealed to the Swiss Federal Supreme Court, arguing that the regulations violated her rights under international law.

That court dismissed her appeal in 2020, prompting her to approach the European Court of Human Rights in 2021.

The judgment does not immediately restore Semenya’s eligibility to compete in events like the 800 metres without hormone treatment.

However, it opens a potential path forward, either through renewed legal challenge or through policy reform sparked by international human rights pressure.

mandilakhe.tshwete@inl.co.za