Information Note on the Court’s case-law 251

May 2021

Semenya v. Switzerland (communicated case) - 10934/21

Article 14

Discrimination

Discriminatory effect of sports regulations establishing an upper limit of testosterone levels as a condition for competing in female events: communicated

Article 3

Degrading treatment

Inhuman treatment

Athlete obliged to undergo treatment to lower her natural testosterone levels in order to be able to compete in female events: communicated

Article 8

Article 8-1

Respect for private life

Athlete obliged to undergo treatment to lower her natural testosterone levels in order to be able to compete in female events: communicated

The applicant is a South African athlete, an Olympic gold medallist who was world champion in her discipline on several occasions between 2009 and 2017.

After a post-victory test in 2009 the International Association of Athletics Federations (IAAF) informed the applicant that she was henceforth required to lower her testosterone levels beneath a certain threshold if she wished to continue competing in her preferred events at future international athletics competitions. The applicant began taking hormone treatment. Despite significant side-effects, she won several distance events at international level in 2011 and 2012.

In 2015, following an appeal by another athlete, the Court of Arbitration for Sport (the “CAS”) suspended application of the relevant IAAF Regulations. The applicant subsequently stopped taking her treatment. In 2016 she won another gold medal at the Olympic Games.

In 2018 the IAAF issued new Regulations governing the eligibility requirements for classification as a female for athletes with differences of sex development (the so-called DSD Regulations). The applicant refused to comply with these Regulations; she argued that they required her to submit to hormone treatment with poorly understood side-effects.

On an appeal by the applicant, the CAS ruled that the DSD Regulations were admittedly discriminatory, but that they nonetheless represented a necessary, reasonable and proportionate means of ensuring fair competitions.

The applicant challenged this ruling unsuccessfully before Swiss Federal Court, alleging, in particular, that it amounted to discrimination against female athletes with a DSD – compared with male or female athletes who did not have a DSD –, infringed her human dignity and breached her personality rights.

Before the Court, the applicant also alleges that the Federal Supreme Court’s judicial review was too limited in scope.

Communicated under Articles 3 and 8, taken alone or in conjunction with Article 14, and under Articles 6 and 13 of the Convention.

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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