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Caster Semenya has declared victory after the European Court of Human Rights ruled that her right to a fair hearing in Switzerland had been violated.
The 34-year-old has been unable to compete in the 800 metres since 2019 following the introduction of limits on testosterone levels for female athletes by World Athletics.
She unsuccessfully took her challenge against those rules to the Court of Arbitration for Sport (CAS) and then the Swiss Federal Supreme Court, but complained to the ECHR that her rights had been violated in that process.
The Grand Chamber of the ECHR ruled on Thursday that the Swiss legal system had “fallen short” in providing what they felt should have been a “rigorous judicial review that was commensurate with the seriousness of the personal rights at issue” and that Semenya’s right to a fair hearing had therefore been violated.
The ruling, which is binding and cannot be appealed, is almost certain to mean that the case returns to the Swiss courts for further consideration, but does not have any impact at this stage on eligibility rules set by World Athletics or any other body.
Semenya, an Olympic gold medallist over 800 metres in 2012 and 2016, said in a statement released by her legal team: “I have waited 15 long years for this judgment.
“Today, my patience in this journey has been rewarded with a result that will pave the way for all athletes’ human rights to be protected.
“I have given up what I wanted in the hope that others may have what they need. I hope this victory will inspire young women to be and to accept themselves in all their diversity.
“There is still much work ahead to achieve justice for women in sport and I will continue to support this effort and fight for young women athletes.”
World Athletics has not commented on the judgement, given that it is not related to their female eligibility guidelines but rather about whether Semenya had been granted a fair hearing in Switzerland or not.
The Swiss Human Rights Institution (ISDH), an independent body which does not speak for the country’s federal authorities, felt the Grand Chamber had “emphasised the significant power imbalance between the individual athlete and the world governing body before the Court of Arbitration for Sport and insisted that, given this imbalance, the Federal Supreme Court had interpreted its own review power too narrowly”.
The ECHR ruled Semenya’s complaints that other human rights were violated inadmissible, including the prohibition of discrimination. It found Semenya did not fall within Switzerland’s jurisdiction in respect of those complaints.
World Athletics has consistently stood by the rules it introduced on testosterone levels, and earlier this year has gone even further.
Its ruling council has approved the introduction of cheek swab tests to determine eligibility for the female category. Only athletes found to be biologically female will be allowed to compete, effectively barring transgender women and some athletes with differences of sexual development (DSD).
