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 de Janeiro (2016) and is also a three-time world champion.
Ms Semenya lodged an application with the ECtHR on 18 February 2021, in terms of which she challenged regulations issued by the International Association of Athletics Federations (IAAF) which required her to lower her natural testosterone levels through hormone treatment in order to be eligible to compete as a woman in international sporting events. Having refused to undergo the hormone treatment, Ms Semenya was no longer eligible to take part in international competitions. Ms Semenya’s challenge was 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 highlight the adverse impacts of the IAAF’s Differences of Sex Development (DSD) regulations on women from the Global South. The Commission demonstrated the discriminatory effect of the regulations on the intersecting grounds of race and gender. In particular, the Commission sought 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.
In today’s Chamber judgment in Strasbourg the ECHR held, by a majority of 4 to 3, that there had been:
A violation of article 14 (prohibition of discrimination) taken together with Article 8 (a right to respect for private life) of the ECHR, and
A violation of Article 13 (right to an effective remedy) in relation to Article 14 taken together with Article 8.
The Court found, in particular that, Ms 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 what it held to be substantiated and credible claims of discrimination as a result of her increased testosterone level caused by differences of sex development (DSD. The Court found that Switzerland had overstepped the narrow margin of appreciation afforded to it in the present case, which concerned discrimination on grounds of sex and sexual characteristics requiring “very weighty reasons” by way of justification. These factors should have led to a thorough institutional and procedural review – but Ms Semenya had not been able to obtain such a review.
A legal summary of the case is at the Court’s database HUDOC.
The Commission was represented before the ECHR by a counsel team comprising of Jeremy Gauntlett SC KC, Frank Pelser and Emma Mockford, Jennifer MacLeod and Zahra al-Rikabi from Brick Court Chambers, London; and instructed by Baker McKenzie under the leadership of Lerisha Naidu with the assistance of Keketso Kgomosotho.
The Commission was assisted by 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 endeavour 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
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