On Tuesday 11 July 2023, the European Court of Human Rights (ECtHR) ruled in favour of South African world champion and Olympic athlete, Caster Semenya, in a case that began in 2018 when regulations were introduced by World Athletics requiring Semenya to submit to hormone treatment to be able to compete as a woman in international sporting events. Semenya subsequently lodged an application with the ECtHR in February 2021, challenging these regulations as being in violation of various of her rights as enshrined in the European Convention on Human Rights (ECHR).
A team from Baker McKenzie, led by Lerisha Naidu, Managing Partner and Head of the Antitrust & Competition Practice in Johannesburg, and including Zareenah Rasool (London), Thato Mkhize (Johannesburg) and Xavier Salvatore (Paris), represented the South African Human Rights Commission (SAHRC) on a pro bono basis, in its third-party intervention in this case before the ECtHR.
The SAHRC was granted leave to intervene in this matter to elucidate the adverse impacts of World Athletics’ Differences of Sex Development (DSD) regulations on women from the Global South. In particular, the SAHRC’s aim was to demonstrate the discriminatory effect of the regulations on the intersecting grounds of race and gender, and how the impugned regulations breached Article 14 (prohibition of discrimination) in conjunction with Article 8 (right to respect for private and family life) of the ECHR.
In its judgment on 11 July, the ECtHR noted that the government of Switzerland had not protected Semenya’s rights. The Supreme Court of Switzerland had previously ruled to not overturn a decision by the Court of Arbitration for Sport (CAS) to uphold the World Athletics regulations, despite the CAS acknowledging serious concerns with the DSD Regulations.
The ECtHR noted that “the applicant 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 substantiated and credible claims of discrimination as a result of her increased testosterone level caused by differences in sex development”.
Baker McKenzie team lead Lerisha Naidu commented, “We were delighted to represent the SAHRC in its third party intervention at the ECtHR in the matter of Semenya v. Switzerland. This is the first time that the SAHRC has been involved in human rights litigation in an international forum. We are immensely proud to be part of the team fighting against discrimination in sport, and we continue to support the project for inclusion and equitable access in all sporting codes.”
World Athletics has noted that they would ask the Swiss government to refer the case to the ECtHR Grand Chamber for a final decision.
Author: Angela Matthewson
Holycombo
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Fun South African Fact: While the country only covers 1% of the Earth’s land surface, South Africa boasts 10% of the world’s bird, fish and plant species as well as 6% of its mammal and reptile species!