Caster Semenya’s prolonged legal battle in various European legal forums marks another milestone on Thursday, when the Grand Chamber of the European Court of Human Rights (ECHR) in Strasbourg rules in her case against Switzerland.
Switzerland referred the matter to the grand chamber — a kind of appeal court — after the ECHR issued a finding in favour of Semenya two years ago, rejecting a previous ruling by the Swiss Federal Court.
The case began in February 2021 when the 800m athlete, who has won several gold medals at the Olympics and the World Championships, lodged an application with the ECHR challenging regulations issued by the International Association of Athletics Federations (IAAF) in 2019. The contested IAAF regulations on differences of sex development required Semenya, and other intersex people with high testosterone, to lower their natural testosterone levels through hormone treatment to be eligible to compete as women in international sporting events.
This was required by the IAAF though athletes and medical experts have suggested the hormonal treatments have a negative effect on the health, and more particularly the sexual and reproductive health of those who are subjected to it. Having refused to undergo the hormone treatment, Semenya was no longer eligible to take part in international competitions and was ineligible to compete in the Paris 2024 Olympics as a result. The Swiss Federal Court upheld the IAAF policy.
The case will be remembered as a historical test for human rights and their application in sports regulation
The case will be remembered as a historical test for human rights and their application in sports regulation. It has certainly brought the rights of intersex persons to the fore and has contributed to the increased understanding of their unique challenges in the sporting world, which is highly regulated based on a person’s sex and/or gender and tends to not be inclusive of intersex sports people.
An intersex person is born with a variety of sex or reproductive organ characteristics that are not within what would medically be defined as male or female sex and reproductive organs. These characteristics may begin to present themselves at different stages of an intersex person’s life. So as intersex people develop, they experience significant challenges in terms of their appearance and gender identity and can encounter health-related challenges.
The case has inspired various bodies and individuals across the world to take a stand for the rights of intersex persons. For example, the UN Human Rights Council (UNHRC) last year passed resolution 55 on combating discrimination, violence and harmful practices against intersex persons. This was the first time that the UNHRC had issued a resolution on intersex people.
The case has further elevated the contribution that South Africa’s rich democracy and human rights jurisprudence is making to human rights globally. Two of South Africa’s chapter 9 institutions supporting democracy have utilised their mandates to contribute, both collectively and individually, to the fight for the observance of human rights of people of all genders, races and sexual orientations through this case. The Commission for Gender Equality (CGE) and the South African Human Rights Commission (SAHRC) signed a memorandum of understanding to enhance collaborative efforts.
This case comes at a time when the inclusivity of sports, and Olympic sports more particularly, has come under increasing scrutiny. The openness of the broader sporting fraternity to inclusiveness and non-discrimination, and to adapt traditional policies and practices to be respectful of human rights, is a key feature of the time and context in which this judgment is being delivered.
Making targeted interventions to transform practices that unfairly discriminate is part and parcel of the mandate, and the work of a national human rights institution. That is why the SAHRC saw it fit to intervene in the Semenya matter.
Notably, the SAHRC was granted leave to intervene in the matter at the ECHR as a friend of the court, a historical feat for the SAHRC. Broadly, the submissions made by the SAHRC focus on the discriminatory effect of the regulations on the intersecting grounds of race, sex and gender.
The highly anticipated judgment this week will have far-reaching implications. The implication for intersex people and the recognition of their equal right to pursue a profession in sports is critical. The judgment will set the tone for future sporting regulation. Hopefully it will ensure that human rights are respected and promoted by sporting bodies all over the world.
• Madlingozi is SAHRC commissioner responsible for antiracism, equality & education and Tumbo is the senior researcher for equality at the SAHRC
For opinion and analysis consideration, e-mail Opinions@timeslive.co.za
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