European LGBTIQ+ Groups Back Caster Semenya in Human Rights Court


Caster Semenya says her case is about equality and inclusivity in sport (Photo: Commission for Gender Equality)

Several European human rights groups have filed a joint submission before the Grand Chamber of the European Court of Human Rights in support of South African athlete Caster Semenya.

Semenya appeared before 17 judges of the Court on Wednesday to defend her right to compete in women’s athletics events without having to artificially alter her testosterone level.

The court is hearing an appeal by the Swiss government against the July 2023 European Court of Human Rights (ECHR) judgment that World Athletics is bound by international law and may not discriminate against anyone without compelling reasons.

This followed the 2018 decision by World Athletics (formerly known as the International Association of Athletics Federations) to require athletes like Semenya, who have what is known as a difference of sexual development (DSD), to artificially reduce their testosterone level when competing in several events.

Her failure to comply with the DSD regulations resulted in her being barred from participation in international competitions. World Athletics insists that the regulations “are a necessary, reasonable and proportionate means of protecting fair competition in the female category”.

“The outcome of this case is very important to pave a way for young women so they cannot face the injustice, the scrutiny of being judged, being dehumanised and being discriminated [against],” Semenya said after the hearing. The athlete has asserted that her fight is no longer about her career but for all those who are impacted by the regulations. 

Discrimination Against Intersex Athletes

Ahead of the hearing, the International Commission of Jurists (ICJ), the Organisation Intersex International Europe (OII Europe) and the European Region of the International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA-Europe) filed a joint submission with the Grand Chamber of the European Court of Human Rights which focuses on the place of intersex athletes in competitive sports and sporting fairness for all athletes.

The submission argues that the DSD regulations discriminate against intersex athletes on the grounds of sex as well as on the grounds of sex characteristics – in particular, genetic characteristics – within Article 14 of the European Convention of Human Rights.

The submission also expands on the wider detrimental effect of the DSD regulations on the human rights of youth, children and intersex athletes.

“Despite claims from World Athletics that the DSD regulations will not prevent any women from competing in athletics, they have the effect of forcing some women with variations of sex characteristics to choose between undergoing medically unnecessary interventions to lower their testosterone levels or be precluded from participating in international sport,” said Katrin Hugendubel, Advocacy Director at ILGA-Europe, in a statement.

Arbitrary Standards of Femininity

In its July 2023 judgment, the ECHR found that Semenya had not been afforded sufficient institutional and procedural safeguards in Switzerland to allow her to have her complaints examined effectively, especially since her complaints concerned substantiated and credible claims of discrimination as a result of her increased testosterone level caused by differences of sex development.

“Under World Athletics regulations, women like Semenya, who have naturally occurring higher testosterone levels associated with Differences of Sex Development, are barred from competing – unless they subject themselves to medically unnecessary interventions to reduce their testosterone levels and conform to an arbitrary and subjective standard of femininity,” commented Kaajal Ramjathan-Keogh, Director of ICJ’s Africa Programme.

“This is yet another example of discrimination faced by intersex athletes who are exposed to invasive medical examinations and interventions that have a dramatic impact on their ability to participate in competitions, and which may have lifelong physical and psychological consequences,” added Hugendubel.

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