Semenya v Switzerland

European Human Rights law on DSDs and the female sport category

In July 2023, the European Court of Human Rights held that Caster Semenya had been unjustifiably discriminated against in the enjoyment of the right to private and family life protected under Article 8 of the European Convention on Human Rights.

Semenya is a South African athlete specialising in middle-distance races who has 5-ARD, a difference of sexual development (DSD) that only affects genetic males with XY chromosomes and testes. Those with 5-ARD are born with typical male internal physiology, but with low levels of the hormone dihydrotestosterone (DHT), which plays an important role in the process of sex differentiation of the external genitalia of males in utero. Those with 5-ARD can be born with a range of phenotypes, including hypospadias (where the urethra does not open at the usual place at the head of the penis), a micropenis, or external genitalia that can appear ambiguous or akin to female genitalia at birth. Because this DSD only affects DHT, it does not impact typical male sexual development during puberty, including muscle bulk, since most aspects of masculinisation are driven by testosterone.

People born with 5-ARD are biologically male, have testes, undergo male puberty, and will have naturally occurring testosterone within the male range. Some have abnormal but nevertheless unambiguously male genitalia and some have ambiguous external genitalia or external genitalia that strongly resembles that of a female. Those with ambiguous or female looking external genitalia at birth will likely be identified as female and raised as girls, perceiving of themselves and being socially understood as female. This was the case for Caster Semenya, who has reported having been born with a vagina but also with internal testes and without a uterus, fallopian tubes, or the ability to menstruate.

When it comes to sporting competition, there is a fraught debate that raises contentious issues of identity, privacy, fairness, and safety. Sporting regulators have tried to tackle this issue in a way that secures fairness and safety for female competitors, without undermining or invalidating anyone’s identity. It may not be possible to do both.

The World Athletics Regulations

Semenya brought this case challenging a set of regulations introduced by the International Association of Athletics Federations, now called World Athletics, which required certain athletes to decrease their natural testosterone level in order to be eligible to compete in international competitions in the female category.

The regulations have gone through several iterations while this case was before the European Court of Human Rights, each slightly amending which athletes would be covered by the regulations.

Version 1.0, published in April 2018, coming into effect on 01 November 2018 defined a relevant athlete as an athlete who meets each of the following three criteria:

(i) she has one of the following DSDs:

(A)  5α‐reductase type 2 deficiency;

(B)  partial androgen insensitivity syndrome (PAIS);

(C)  17β‐hydroxysteroid dehydrogenase type 3 (17β‐ HSD3) deficiency;

(D)  congenital adrenal hyperplasia;

(E)  3β‐hydroxysteroid dehydrogenase deficiency;

(F)  ovotesticular DSD; or

(G)  any other genetic disorder involving disordered gonadal steroidogenesis;

and

(ii)  as a result, she has circulating testosterone levels in blood of five (5) nmol/L or above; and

(iii)  she has sufficient androgen sensitivity for those levels of testosterone to have a material androgenising effect.

Version 2.0, which came into force from 08 May 2019, reduced the list of DSDs, removing congenital adrenal hyperplasia and 3β‐hydroxysteroid dehydrogenase deficiency. Both of these can affect either males or females whereas the others on this list all coincide with the presence of testes. Version 3.0 maintains the same list and criteria but replaces reference to “she” with “they”.

Semenya refused to undergo this treatment and so was deemed ineligible to compete in the female category, resulting in unsuccessful challenges to the regulations before the Court of Arbitration for Sport (CAS) and the Federal Court.

European Human Rights Law

The first thing that needed to be established was whether the Court could hear this case at all. This turned on whether the European Court of Human Rights (ECtHR), which ordinarily only binds Member States, had jurisdiction to assess the compatibly of regulations produced by an international sporting federation with the ECHR.

In this case, the regulations required compulsory arbitration before CAS and the only appeal mechanism was to the Federal Court. The ECtHR concluded that this deprived Semenya of the possibility of applying to the ordinary courts in a Member State. Therefore, the Court concluded that if it were to find that it did not have jurisdiction “it would risk barring access to the Court to an entire category of individuals, that of female athletes, which would not be in keeping with the spirit, object and purpose of the Convention”.

Having dealt with the preliminary issue of jurisdiction, the ECtHR then turned to address the substantive challenge that was brought. Semenya argued that these regulations breached:

• Article 14, which provides for a right not to be discriminated in the enjoyment of Convention Rights, in conjunction with Article 8, which protects the right to private and family life; and

• Article 13 which provides for a right to an effective remedy for breaches of Convention rights.

Semenya argued that the regulations had impaired the essence of the protection for private life by concluding “that her characteristics ‘were not sufficiently female’ for the purposes of the sport classification”. The ECtHR concluded that an individual’s sexual characteristics fell within the scope of “private life” within the meaning of Article 8, an unsurprising conclusion given how sensitive information about a person’s internal and external sex characteristics can be. It also concluded that, in so far as Semenya was required to undergo hormone treatment in order to participate in certain athletics competitions in the female category, this also engaged Article 8 by directly affecting personal identity.

The notion of personal autonomy has been recognised as an important principle underlying the proper interpretation of Article 8. In this case the ECtHR concluded that the regulations in question resulted in Semenya being faced with a difficult dilemma: “either she took the medication, which was likely to cause her physical and mental harm, in order to decrease her testosterone level and to be able to practice her profession, or she refused to take it, with the result that she would have to renounce her right to compete in events of her choosing”.

The ECtHR also concluded that these regulations, by focusing on DSDs, were likely to have major consequences for the enjoyment of the right to respect for private life, in particular, issues relating to reputation, the private sphere and dignity. It therefore concluded that Article 14 in conjunction with Article 8 was applicable. This meant that the interference with these rights needed to be objectively justified.

Semenya had alleged discrimination in the enjoyment of Article 8 on the basis of sexual characteristics, in particular the increased testosterone levels caused by 5-ARD. The ECtHR accepted that this could be framed as either alleged discrimination on the basis of sex or sexual characteristics (in particular, genetic characteristics) both of which come within the ambit of Article 14.

In determining whether there had been discrimination based on these grounds, the ECtHR needed to decide who the appropriate comparator was. To establish sex discrimination, Semenya’s own sex needed to be determined such that the treatment received can be compared to how someone of another sex would have been treated. For sexual characteristics, it is important to determine what the differential treatment was and what its basis was. For example, was this because of differences in hormone levels or differences in phenotype?

The ECtHR concluded that Semenya had been legally identifies as female at birth, grown up and been raised as a woman, and had always participated in the female category in sporting competition. In the domestic proceedings, there was no debate as to whether Semenya could be compared to persons in analogous situations.

Nevertheless, the ECtHR concluded that the CAS and Federal Court had both tacitly acknowledged that Semenya was female and that the situation of female athletes and that of Semenya, as an ‘intersex’ athlete, were equivalent. The ECtHR additionally concluded that it did not have sufficient evidence at its disposal at the time of its judgment to conclude otherwise. It therefore concluded that Semenya was in a comparable situation to “other female athletes” and that “she had been subject to a difference in treatment in relation to those athletes as she had been excluded from taking part in competitions as a result of the DSD Regulations”.

Having established that there was differential treatment on the basis of sexual characteristics, the ECtHR then had to determine whether this was justified. The general approach of the Court to discrimination based exclusively on the ground of sex, including on the basis of sexual characteristics of an individual or their DSD, require “very weighty reasons”, “particularly serious reasons” or “particularly weighty and convincing reasons” in order to be justified.

The Court then exampled the arbitration, noting that

the CAS had carried out a thorough examination of the alleged discrimination and concluded that, while the DSD Regulations were discriminatory, they were a necessary, reasonable and proportionate means of achieving the aims of the IAAF, in particular to ensure fair competition.

However, it also noted that, while the CAS had applied similar criteria to those that the Court itself would take into account under Article 14 (necessity, reasonableness and proportionality), it had not referred in its analysis to the ECHR or to the case-law of the ECtHR.

Additionally, the Federal Court’s power to review a decision made by the CAS was severely limited, being confined to an appeal based on incompatibility with substantive public policy, meaning that the appeal system was even more restrictive than one based on standards of arbitrariness.

It followed that neither the CAS nor the Federal Court had carried out a thorough analysis of the justifications for the DSD Regulations, in light of the Convention. In addition, the Federal Court had proceeded from the presumption that there was a real and defensible choice open to Semenya to not take oral contraceptives because the option remained not to compete in the female category. The ECtHR concluded that this was no real choice because either option involved waiving certain rights protected by Article 8.

Finally, the ECtHR addressed the claim that World Athletics had erred in comparing Semenya’s situation with that of transgender athletes, because these cases were different and those differences ought to have been accounted for. At the time this case was brought World Athletics regulations pertaining to “female transgender athletes and intersex athletes” had been essentially the same. The Court notes that

It was not clear to the Court why the applicant and transgender athletes who had undergone a male-to-female transition had been treated equally. Without wishing to prejudge cases that could be brought before it, the Court simply noted that, in the case of female transgender athletes, the advantage they possessed stemmed from the inequality inherent in them having been born male. It arose from their initial biological make-up, and so the treatment they were asked to undergo in order to decrease their testosterone level was simply an adjustment of the treatment they were already undergoing.

In the end, the ECtHR concluded that there had been a violation of both Article 14, read in conjunction with Article 8, and of Article 13.

Analysis and Commentary