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A win for Caster Semenya in the European Court of Human Rights


The European Court of Human Rights has today found, by a majority, a violation under Article 14 taken together with Article 8; and a violation of Article 13, in a case brought by Caster Semenya against Switzerland.

Ms Semenya, a double Olympic gold medallist and three time world champion, was required by the International Association of Athletics Federations (as it then was) to take hormone treatment to decrease her natural testosterone level. She refused to do so and was therefore unable to take part in international competitions. She challenged the regulations in issue as discriminatory before the Court of Arbitration for Sport (“CAS”) but her case was dismissed by the CAS and by the Federal Court in Switzerland.

Upon her application to the European Court of Human Rights, the Court found that she had not been afforded sufficient institutional and procedural safeguards in Switzerland, especially since her complaints concerned substantiated and credible claims of discrimination.  In the circumstances, Switzerland had overstepped the narrow margin of appreciation afforded to it, in light of the fact that discrimination on the grounds of sex and sexual characteristics required very weighty reasons by way of justification, and the case was one of “high stakes” for Ms Semenya. 

The Court’s press release is here.  The judgment (in French) is here.

Jeremy Gauntlett KC, Zahra Al-Rikabi, Jennifer MacLeod and Emma Mockford were instructed pro bono by Baker McKenzie for the South African Human Rights Commission (the “SAHRC”).  The SAHRC supported Ms Semenya’s application to the Court on the grounds of discrimination, on which she was successful.