Confronting Challenges Head-On
In a landmark decision, the Grand Chamber (GC) of the European Court of Human Rights (ECtHR) has ruled that South African Olympic athlete Caster Semenya did not receive a fair hearing by the Swiss Federal Court (SFC) in the case of Caster Semenya v. World Athletics. This ruling, made in July 2025, contravenes Article 6 §1 ECHR, emphasising the importance of fair legal processes and safeguarding against discrimination based on sex characteristics.
The ruling has significant implications for sports law and governance. It affirms that eligibility rules affecting athletes' rights must be scrutinised under human rights standards, particularly regarding discrimination and the right to private and family life (Articles 8 and 14 of the ECHR). This serves as a strong signal to sports governing bodies, including World Athletics, to consider human rights thoroughly when drafting eligibility rules to avoid legal challenges at the ECtHR level, especially concerning non-discrimination and procedural fairness.
Moreover, the ruling potentially sets a precedent that decisions from sports arbitration bodies like the Court of Arbitration for Sport (CAS) and national courts can be reviewed for compliance with fundamental rights at the ECtHR level, strengthening athletes' access to effective remedies beyond traditional sporting forums.
The ECtHR's ruling also raises awareness about the contested nature of regulations that require hormone treatment or invasive testing to compete, as such rules may disproportionately affect transgender athletes and those with Differences of Sex Development (DSD). This prompts sports organisations to balance fairness with respecting athletes' bodily autonomy and rights.
The GC's ruling also highlighted gaps in the review of the DSD Regulations by CAS and provided examples of where the SFC could have more closely examined the CAS Award. Furthermore, the ECtHR's rejection of the Article 8 and 14 complaints leaves open the question of how DSD athletes might assert their human rights when they are caught up in compulsory arbitration.
The successful ruling of a violation of Article 6 §1 by the SFC will significantly impact sports governance and the relationship between sports arbitration and human rights. The ECtHR's judgment has significant implications upon future sports regulation, as it sends an alert to private entities such as international sports regulatory systems that Convention rights must be respected.
However, the ECtHR's ruling has been met with criticism for arguably overreaching the scope of the Convention and encroaching on the sovereignty of States. Switzerland has a legal obligation to make good the Article 6 §1 violation under the supervision of the Committee of Ministers and to avoid similar violations in the future (Article 46 ECHR).
The GC's ruling did not extend Switzerland's jurisdiction to Semenya's substantive complaints under Article 8 ECHR and Article 14 ECHR. The UK Supreme Court, in a separate ruling, ruled that the correct statutory interpretation of sex within the Equality Act 2010 is based upon biological sex.
Semenya's legal journey has been a prominent feature of the debate on gender eligibility in sports, dating back to her first clash with World Athletics gender eligibility rules in 2009. Her formal battle against the World Athletics DSD Regulations was unsuccessful before the Court of Arbitration for Sport (CAS) and the SFC.
In 2023, the ECtHR held that there was a violation of Article 8 ECHR, Article 14 ECHR, and Article 13 ECHR by the SFC in the examination of Semenya's case. The GC Judgment has the potential to mark a pivotal moment in the intersection of human rights and sports governance, urging reforms to ensure that protections for gender diverse athletes are upheld, procedural fairness is guaranteed, and discriminatory practices are critically assessed under a human rights framework.
The GC Judgment also coined the term "Lex Semenya" to illustrate the targeting and arbitrariness of the DSD regulations. Despite the partly dissenting joint opinion from some judges, who believed the GC could have gone further to confirm obligations in the context of substantive rights, the ruling underscores the need for sports regulations to respect and protect the human rights of all athletes.
In the USA, the Trump administration has pushed down on gender identity and removed protections for trans people, with laws banning trans female athletes from competing in female sports. This underscores the global importance of the ECtHR's ruling in protecting the human rights of gender diverse athletes.
- The ECtHR's ruling in the case of Caster Semenya v. World Athletics has emphasized the significance of human rights standards in sports eligibility rules, particularly regarding non-discrimination and procedural fairness.
- The judgment serves as a warning to sports governing bodies to consider human rights thoroughly when drafting eligibility rules to avoid legal challenges at the ECtHR level, as decisions from sports arbitration bodies can be reviewed for compliance with fundamental rights.
- The ruling's potential precedent may strengthen the protection of human rights for gender diverse athletes, sending a strong message globally to private entities such as international sports regulatory systems, encouraging them to respect Convention rights.
