AMSTERDAM (CN) - The European Court of Human Rights ruled Thursday that Switzerland didn't give Olympic track gold medalist Caster Semenya a fair opportunity to challenge international athletics regulations that required her to undergo hormone treatment to compete in women's events.

The court found that Swiss authorities had not done enough to examine whether those rules, enforced by the world's governing body for track and field, violated the runner's rights to privacy and non-discrimination.

Fifteen of the court's seventeen judges agreed that Switzerland didn't ensure a fair hearing when its top court reviewed but ultimately upheld a decision from the Court of Arbitration for Sport, which had sided with World Athletics. Two judges dissented.

Semenya, a two-time Olympic champion from South Africa, challenged international rules requiring certain female athletes with a difference of sex development to lower their natural testosterone levels. Under World Athletics' regulations, these athletes had to keep their levels below 5 nanomoles per liter - later reduced to 2.5 - for at least six months to compete in certain events.

World Athletics says Semenya has the typical male XY chromosome pattern and levels of testosterone that are much higher then the typical female range. The track and field body says that gives her and other athletes like her an unfair advantage over other female runners.

Semenya was legally identified as female at birth and has identified as female her whole life. She says her testosterone is a genetic gift.

A dominant force in middle-distance running, Semenya won Olympic gold medals in the women's 800 meters at the 2012 London and 2016 Rio de Janeiro Games, and secured three world titles in that event. Since the implementation of the testosterone regulations, she has not competed in her preferred distance and has pursued other events while continuing to challenge eligibility rules.

She initially took oral hormone treatment but stopped in 2015 after experiencing side effects like weight gain and abdominal pain. When she was no longer allowed to compete in certain events, she took the case to CAS in 2018. After losing there, she appealed to Switzerland's highest court, which dismissed her claim in 2020. With no further options in the Swiss system, she turned to the human rights court in Strasbourg, France.

The European judges said that because the Swiss court was the only one with the power to overturn the sports ruling, it had a duty to examine the case with special care. They emphasized that Semenya hadn't gone to arbitration voluntarily - she had no choice, because World Athletics required athletes to use CAS for any dispute.

The court found that Swiss authorities failed to meet the level of scrutiny required, especially since Semenya had no real choice but to pursue arbitration. The judges emphasized that "respect for that individual's right to a fair hearing required a particularly rigorous examination of his or her case."

Instead, it merely checked for legal errors and sidestepped the unresolved concerns already raised by the sports tribunal. The European judges noted that even the arbitration panel had left open crucial issues, such as the medical burden placed on athletes and whether the rules could be realistically followed.

In particular, the court pointed out that the tribunal had acknowledged the intrusive nature of the required exams, the side effects of hormone treatment, and the risk of exposing intimate aspects of the athletes' identity. It also flagged the possibility that athletes could be disqualified despite diligently following the rules, given the difficulty of maintaining testosterone levels below the set threshold. While the panel had expressed grave concerns, it ultimately dismissed them as speculative. The European court found that this did not meet the level of scrutiny required in a case involving fundamental rights.

The judges stressed that the arbitration process for Semenya was not neutral or balanced, but rather dictated by the dominance of international sports organizations. It noted that World Athletics, like other sports bodies, holds "powers in the field of international sports competition which are akin to regulation-making powers," including the ability to decide "who can compete and under what conditions." The judges found that this dynamic placed athletes in a structurally subordinate position.

The court made clear it was not judging the validity of the testosterone rules themselves, or deciding who was right in the scientific and ethical debate surrounding them. Instead, it focused entirely on whether Swiss authorities had given Semenya a real chance to challenge the rules in court - and concluded that they had not.

Although the court did not award her any damages, it ordered Switzerland to pay 80,000 ($93,500) to cover her legal costs.

Not all of the judges saw eye to eye. Judge Kateina imakova agreed that Semenya's right to a fair trial had been violated but wrote separately to say the court should have gone further. In her view, it should have examined whether CAS truly qualified as "an independent and impartial tribunal established by law."

Two other judges, Tim Eicke and Gabriele Kucsko-Stadlmayer, wrote that Switzerland had met its obligations by providing Semenya with a fair procedure, and the Federal Supreme Court had conducted a proper review. They also warned against setting new standards beyond legal requirements for national courts.

Katrina Karkazis, a professor at Amherst College who has long studied sex testing in sports, said the case "exposes a dangerous gap in the global human rights system." She noted that athletes subject to invasive and medically unnecessary regulations often face a "black hole" of accountability.

"CAS says human rights review is outside their mandate, Switzerland's courts say they can't review CAS decisions on human rights grounds, and now Switzerland claims the whole thing has nothing to do with them," Karkazis said.

Doriane Lambelet Coleman, a professor of law at Duke University, said the case also leaves behind a critical legal record.

"Because of the procedural posture of the case, the court's decision will not affect the authority of governments and sports governing bodies to protect the female category," she said.

But she emphasized that the proceedings - especially before CAS - will stand as "the first to thoroughly consider a challenge to 'sex' as 'biological sex' in the context of a still valuable sex classification," setting an important precedent for future legal and scientific debates.

The ruling is now final and cannot be appealed. This means that Switzerland must comply with the judgment and take steps to address the violations identified by the court.

Source: Courthouse News Service