ECHR holds hearing on gender-based exclusion rules of international sports competitions – JURIST

The European Court of Human Rights (ECHR) held a hearing Wednesday on a case involving an international athlete’s claims that World Athletics’ eligibility rules are discriminatory, forcing her to undergo medical treatment to compete. The applicant is asserting several violations of the European Convention on Human Rights.
The case emerged from complaints by former South African Olympic champion Caster Semenya, alleging that the ‘Eligibility Regulations for the Female Classification (Athletes with Differences of Sex Development)’ restricted her ability to compete in sporting events. The eligibility regulations – introduced in 2018 by World Athletics – are directed towards female athletes with differences in sex development (DSD) who therefore have significantly higher levels of testosterone or androgen-sensitivity. The applicant Mokgadi Caster Semenya argued that the new regulations would force her to undergo medical treatment to lower her testosterone levels in order to compete or abandon her career in athletics entirely. 
The complaint was initially taken up by the Court of Arbitration for Sport (CAS) in Switzerland in 2019. CAS dismissed the case ruling that, although the regulation was discriminatory, it was a necessary, reasonable, and proportionate measure to ensure fair competition. Semenya appealed the award to the Swiss Federal Supreme Court in 2020, however was unsuccessful. The court determined that Semenya had not sufficiently proven that the CAS award violated fundamental and widely recognized principles of public order.
In response to the Swiss court’s decision, Semenya filed a complaint with the ECHR, alleging violations of Articles 6 ( the right to a fair hearing), 8 (the right to respect for private and family life), 13 ( the right to an effective remedy), and 14 (the prohibition of discrimination) of the European Convention on Human Rights. The complaint was filed in 2021, and the court’s Chamber issued its judgment in July 2023.
In its decision, the ECtHR’s Chamber found violations of Articles 8, 13, and 14 of the Convention. The Court further held that Switzerland failed to provide the applicant with sufficient procedural and institutional safeguards, preventing her complaint from being thoroughly examined during her legal proceedings before the Swiss Federal Supreme Court.
Following the ECHR’s decision, Switzerland requested a referral to the Grand Chamber in late 2023. The Grand Chamber, which consists of 17 judges, initiates proceedings based on case referrals following a Chamber judgment or through relinquishment by a Chamber, both granted on an exceptional basis.
In the case of Semenya v. Switzerland, the request was granted, and third parties, including the UK government, World Athletics, and the UN High Commissioner for Human Rights were invited to intervene in the written procedure. The hearing at the Grand Chamber was scheduled for Wednesday morning and it has since convened to consult on the case. A final decision by the ECHR is now awaited.
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