Making Sense of Semenya before the European Court of Human Rights

Caster Semenya, a top-level middle distance runner and twice Olympic champion, applied to the European Court of Human Rights (ECtHR) alleging that Switzerland, as the country of seat of the Court of Arbitration for Sport having decided a previous award, had violated many of her rights under the European Convention on Human Rights (ECHR), with the arbitral award upholding the exclusionary regime providing for the suppression of testosterone levels imposed to athletes with Differences of Sex Development as a condition to compete in the female category. An all-male panel of the ECtHR held that there had been a violation of the prohibition of discrimination in conjunction with the right to respect for private life as well as a violation of the right to an effective remedy. Semenya v. Switzerland is a victory for the rights of intersex people, being the first decision where the ECtHR recognized that discrimination on the grounds of sex characteristics falls under discrimination on the grounds of sex under Article 14. Yet the judgment raises many ethical as well as legal questions in that the ECtHR denied the applicability of the prohibition of ill-treatment under Article 3, declaring Semenya’s complaint in this regard inadmissible, because the applicant had not undergone any treatment. Despite these elements, with this judgment, international human rights law ceases to be a blind spot in sports law, thereby becoming a requirement for both regulators and adjudicators.