Why Rights Groups Say Caster Semenya Ruling is “Deeply Disappointing”

The European Court of Human Rights (ECHR) ruling in South African athlete Caster Semenya’s case has been labelled a disappointing outcome by human rights groups who expressed concern over the court’s failure to address the core issues at stake.

On Thursday, the ECHR’s Grand Chamber found that Semenya had not received a fair hearing in Switzerland in her legal challenge against World Athletics but failed to address the core issues at stake.

The case centres on regulations that bar female athletes with naturally high testosterone levels — like Semenya — from competing in certain track events unless they medically reduce their hormone levels.

Fair Trial Recognised, But Key Complaints Dismissed

While the decision was widely reported as a win for the two-time Olympic champion, the majority of judges declined to rule on Semenya’s primary human rights complaints.

These included her claims that the regulations violated her right to privacy, the right to an effective remedy, and the prohibition of discrimination. The court argued that it lacked jurisdiction to rule on these as Semenya is not a Swiss citizen.

Human Rights Advocates Voice Disappointment

Although the ruling was welcomed by Caster Semenya, her legal team and the wider media as a victory, several human rights organisations expressed disappointment at its limitations.

Groups including ILGA-Europe, the International Commission of Jurists (ICJ), and Organisation Intersex International Europe (OII Europe) — all of whom were granted permission to intervene in the matter — welcomed the finding of a fair trial violation. However, they lamented the court’s decision not to examine the significant human rights issues at hand.

In a joint statement, they said: “We regret that the Court has failed in its obligation to protect fundamental rights by choosing not to examine the merits in question of Semenya’s claims of violations of her rights…”

Judges’ Dissent Highlights Missed Opportunity

The organisations pointed to the dissenting opinion of Judges Bošnjak, Zünd, Šimáčková and Derenčinović, who argued that it is “inconceivable that domestic courts, ruling within the territory of Europe, should disregard international fundamental rights obligations in the area of protection of bodily integrity, equality and human dignity”.

ICJ Africa Director Kaajal Ramjathan-Keogh stated: “The ICJ is deeply disappointed by the outcome of this case. We urged the Grand Chamber to uphold the findings in the earlier judgment, establishing sex characteristics as a prohibited ground under Article 14 of the [European Convention on Human Rights]. Sadly, the Grand Chamber has elected not to do so.”

OII Europe’s sports consultant, Urs Vanessa Sager, echoed the criticism, saying the court had failed to recognise that Semenya was “excluded from her profession in application of blatantly exclusionary, invasive and discriminatory regulations, which are not backed by any solid evidence that could justify this difference in treatment.”

Mixed Reactions in South Africa

South Africa’s Deputy Minister for Women, Youth and Persons with Disabilities, Mmapaseka Steve Letsike, also expressed mixed feelings about the court’s decision.

“While we celebrate this achievement for Semenya and the broader athletic community,” she said in a statement, “we express our concern that the ruling did not establish a precedent for regulating testosterone levels in sports, which is contrary to Semenya’s objective of achieving a competitive advantage.”

Next Steps Uncertain

It is not yet clear whether Caster Semenya will return to the Swiss courts, armed with the ECHR’s ruling that she was denied a fair trial.

World Athletics’ 2018 policy requires athletes with differences of sexual development (DSD), like Semenya, to artificially suppress their natural testosterone levels to compete in selected events. Her refusal to comply led to her exclusion from international competitions and the end of her running career.

International human rights bodies have condemned the regulations as discriminatory and harmful. They argue that the rules violate the human rights of affected female athletes and must be re-evaluated.