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
The Flying Mouse
A British man on safari walks into a bar far out in the reaches of a game reserve in Southern Africa, he stays at the bar for a while shooting the shit with the bartender and drinking like a fish, he offer to buy the barkeep a round and since no one else is within 2km of their small oasis of liquor the barkeep obliges. The englishman goes off to the bathroom to have a good old go at the porcelain, he\’s back and ready for a few more whiskeys. He\’s just sat down when suddenly in the distance he hears a scream. He looks over his shoulder and dismisses it as nothing, he turns to the barkeep and orders a drink, takes a sip and hears the scream again. He looks at the barkeep who just shrugs it off. A minute or two later he and the barman hear it again and go outside to take a look. They see a lone figure running towards them screaming, he spots them and lets out a cry, RUN!!!!! HE\”S COMING!!!!!
The barkeep and the Englishman both look at the terrified bedraggled sight before them, and try to calm him down, but he\’s completely inconsolable. They give him water and finally manage to get a word out of him but he struggles free from their grasp and run away screaming.
A few minutes later the same thing happens with a whole group of men running in and screaming, he\’s coming, he\’s coming the barkeep grabs hold of one of the men as he tries to sprint past the bar and tries to get information out of him, again no response other than terrified gibberish.
The barkeep and his customer are starting to get worried, they start to pack up before another group of horrified natives run up to the bar most of them flee but one tries to hide behind the bar, the barkeep pulls out a shotgun and points it at the terrified man\’s face, finally managing to coax some words out of him. \”He\’s coming for us, Vernon Koekemoer is coming for us, we have to hide!!! We have to get out of here.\” He gets up and tries to run but the barkeep grabs him, feeling trapped in a panic he grabs the barkeeps shotgun and blows his own head off. The Englishman and the barkeep look at each other starting to really panic now.
They look out of the window and off in the distance they see a tornado coming towards the bar, at the bottom of the tornado they see the hugest beast of a man they have ever seen, as he gets closer they spot that he is riding a rhinocerous and using a crocodile as a riding whip, with each smack of the crocodile across the back of the rhino the louder is screams and the faster it runs, the tornado following it getting ever larger.
The 2 look at each other and start to fortify their position, they\’ve got a gun and they\’re waaay to drunk to run, so they start piling bar stool and tables and anything they can get their hands on to make sure they\’ll be safe when he arrives. They\’re not gonna make it, they can see the man slowing down his rhino, by now the crocodile is nothing but reptile paste on the bruised rump of the half dead rhino, the rhino drops down dead from exhaustion and crashes to the ground right outside the bar the tornado loses it\’s last breath in a cloud of dust as the huge man crashes his way through the make shift barricade and charges up towards the bar where the 2 men have taken shelter, he grabs a bottle of the hardest liquor on the shelf and down the entire litre in 1 gulp, he peers over the bar sobbing and sees the 2 defenders cowering down behind the crates of beer, they look up at the mans\’ face and he stares at them with a look of complete and utter hopelessness, he stares at them for a half second and half screams, half sobs, \”Oh my god what are you still doing here!!! WE HAVE TO GET OUT OF HERE NOW!!!! Vernon Koekemoer is coming!!!!\”
Lunar Treat
Bitter koud — very cold. An Afrikaans phrase meaning ‘bitter cold’, often used to describe the cold weather during winter.Example: “Oh, my gosh! It’s bitter koud outside!”