Mokgadi Caster Semenya is an international athlete specialising in middle-distance races (800 to 3,000 metres). Ms Semenya won the gold medal in the women’s 800 meters at the Olympic Games in London (2012) and Rio (2016) and is also a three-time world champion in the discipline. Ms Semenya lodged an application with the ECtHR on 18 February 2021, in terms of which she challenges regulations issued by the International Association of Athletics Federations (IAAF), which requires her to lower her natural testosterone levels through hormone treatment in order to be eligible to compete as a woman in international sporting events. Ms Semenya’s challenge is grounded in various rights enshrined in the European Convention on Human Rights (ECHR).

The Commission successfully sought leave to intervene in the matter so as to elucidate the adverse impacts of the IAAF’s Differences of Sex Development (DSD) regulations on women from the Global South. The Commission’s submission does not purport to comment on the merits of the matter, and instead aims to demonstrate the discriminatory effect of the regulations on the intersecting grounds of race and gender. In particular, the Commission, as an independent intervenor (comparable to a friend of the Court), seeks to illustrate how the impugned regulations breach Article 14 (prohibition of discrimination) in conjunction with Article 8 (right to respect for private and family life) and/or Article 3 (prohibition of torture) of the ECHR.

The Commission further seeks to demonstrate that intersectional discrimination has a unique and synergistic discriminatory effect on women from the Global South. The matter raises complex issues regarding the relation of dignity to the right to equality and non-discrimination as well as to other ECHR rights; the appropriate approach in respect of intersectional discrimination; and how the justificatory analysis should be framed in instances of intersectional discrimination on the grounds of race, gender, gender identity and expression. The Commission sought to achieve its aims with reference to the rich normative jurisprudence of the South African Constitutional Court. In the light of the complexity of the human rights issues raised, the Commission has requested to make oral submissions in the event that the ECtHR grants a hearing in this case.

The Commission is ably represented by a formidable legal team, comprising of Jeremy Gauntlett SC QC, Emma Mockford, Jennifer MacLeod and Zahra al-Rikabi from Brick Court Chambers, London, Advocate Frank Pelser and instructed by Baker McKenzie under the leadership of Lerisha Naidu with the assistance of Keketso Kgomosotho.

The Commission has furthermore solicited the expert advice of an ad hoc committee comprising of Prof Sandra Fredman (Oxford) and Dr Meghan Campbell (Birmingham), representing the Oxford Human Rights Hub, and joined by Ms Alexandra Mia (previously a staff member of the Commission).

The Commission extends its sincere gratitude to the excellent legal team, expert committee and its own staff for their tireless work in reaching this important milestone in the Commission’s endeavor to promote equality and help eliminate discrimination in its various guises.

A copy of the Commission’s submission to the ECtHR can be accessed here.

Ends

Issued by the South African Human Rights Commission

Gushwell Brooks – Communications Co-ordinator Tel: 082 645 8573 This email address is being protected from spambots. You need JavaScript enabled to view it.