The Caster Semenya Judgment of the ECtHR: Why It Should Not be the Final Whistle?

The legal marathon of Caster Semenya against regulations of the sport governing body (SGB) overseeing athletics has emerged as one of the most contentious legal battles, reaching the pinnacle of the European human rights framework.

Semenya is a South African runner with naturally higher testosterone levels than other females. She refused to submit herself to World Athletics (WA) regulations, which required intersex persons to undergo hormonal treatments to lower testosterone levels to be able to compete with other female athletes (DSD regulations). She took the case to the Court of Arbitration for Sport (CAS), where the panel upheld the WA regulations, and appealed the award to the Swiss Federal Supreme Court (SFSC), where the court refused to set aside the CAS award. She then appealed to the ECtHR, which in its judgment, delivered a resounding victory for the athlete.

This judgment remains subject to potential referral to the Grand Chamber of the ECtHR (GC); however, it contains several noteworthy aspects such as jurisdictional questions resulting from a compulsory arbitration clause distorting the traditional paradigms of the ECtHR’s jurisdiction, endorsement of the horizontal application of human rights in the sport context, alluring discussions (especially within the collective dissenting opinion) on considering scientific evidence in human rights proceedings, additional responsibilities of arbitral-friendly jurisdictions to submit arbitral awards to proper judicial control, and so on, that all worth further discussions.

However, for the purpose of this note, I will be focusing on a more general theme emanating from the observation of a clash between legal cultures. I will discuss how the epistemically different worlds of arbitration and human rights have approached the issues from vastly contrasting perspectives that may warrant a fresh look into the case by the ECtHR’s GC.

1. The Cultural Divide between Arbitration and Human Rights

Like many other areas of law, arbitration law and international human rights law do have different and sometimes conflicting philosophies, histories, and principles. Arbitration operates with confidentiality and limited public scrutiny, human rights demand public attention and uses naming and shaming as one of its strategies. Arbitration is sectoral and human rights recognize universal application. Arbitration prioritizes efficiency and pragmatic solutions, human rights are grounded in principles and the preservation of human dignity. Arbitration typically has two private parties on the two spectrums, human rights always have States on one side.

Arbitration law and human rights law developed without having each other on the radar. They didn’t need to. Arbitration was mostly utilized for confidential, speedy settlement of disputes in private contexts where human rights claims were extremely rare. Later on, when some questions arose, they were mostly limited to procedural guarantees and the right to a fair hearing. No human rights treaty mentions arbitration. Likewise, arbitral developments lacked proper attention to human rights questions. Human rights within the arbitration realm have been mainly discussed within the context of investment disputes where one party is a State. However, the ever-expanding use of arbitration in all sectors and the increasing importance of human rights law, and the developing jurisdiction of human rights courts have made the clash between the two inevitable.

The case of Caster Semenya is a full exposure of such clashes instructing the need for synchronization between the two areas to further enhance an individual’s access to justice.

2. CAS and Caster Semenya

In front of the CAS, arbitrators coming from the culture explained above took a drastically different approach to the issues in question. Arbitration relies primarily on the governing law agreed upon by the parties; in this case, the rules and regulations of the SGB in the absence of a human rights clause.

The athlete claimed violations of the principle of non-discrimination, right to privacy, bodily integrity, health, and being subject to inhuman and degrading treatment. From a human rights standpoint, as noted by experts, the focal point of this case was not whether testosterone affects athletic performance, but rather whether the measurement of testosterone levels for the purpose of sex testing constitutes a violation of human rights or not.

Despite the submission of an amicus curiae by three UN Special Rapporteurs and the testimony of human rights experts calling the attention of the panel to human rights at stake, the panel after appreciating these contributions said: “It has not found the opinions expressed to be particularly useful in resolving the legal issues that the panel must decide” (CAS award, para 554). It further clarified that what matters to them is “the rights of female athletes who do, and do not, have DSD” and whether there is a level playing field for other female athletes (Id). In other words, the principle of “fairness in sport”.

In a nutshell, fairness in sport entails SGBs ensuring equitable competitions through the establishment of a level playing field. Organizing separate categories for male and female athletes is one aspect of it that acknowledges the inherent physical advantages, such as testosterone-related differences in athletic performance.

This principle was the compass that took the panel to a totally different path than the one human rights experts were pointing at. Thus, while the panel found the regulations discriminatory, they nevertheless found them a necessary, reasonable, and proportionate means of achieving the aim of ensuring fair competition. This position was upheld by the SFSC in appeal.

3. ECtHR and Caster Semenya

In an earlier analysis, I highlighted the pivotal role that human rights could have as a key player in this game but was benched throughout the whole process. The ECtHR judgment finally represented the rise of human rights from the bench resulting in a radically different approach.

In front of the ECtHR WA (as a third party) raised the same concerns for fair competition to be protected (para. 146). However, the ECtHR maintained that the SFSC should have weighted fairness in sport against important human rights claims at stake (para 186) and that necessity, reasonableness, and proportionality should have been balanced against the ECHR standards and the ECtHR’s case law and not competition fairness (para. 174).

Within this framework, the highlight of the judgment is where the Court says that gender-based discrimination should be justified by “very strong considerations”, and solid compelling, and convincing reasons, and these principles will guide the Court in its assessment (para 169). This is where “fairness in sport” collapses and does not find any place in the evaluation of the Court.

Accordingly, as Judge Pavli says in his concurring opinion to the judgment: “It is not the Court’s task to resolve all the dilemmas related to non-binarity in sport or to decide on a single approach to fairness that should be followed in all respects. Nevertheless, athletes are still entitled to respect for their fundamental rights, as confirmed by a growing part of our case law” (para 9 of opinion). He argues that equality in life holds a superior position compared to equity in sports (Id).

The Court ends up upholding violations of the prohibition of non-discrimination and the right to privacy, with a narrow majority, criticizing CAS and SFSC for their failure to appropriately consider human rights aspects.

4. Should This Be the End?

Therefore, while CAS award entirely disregards human rights concerns in favor of competition fairness, the judgment of the ECtHR’s third division finds discrimination based on sex characteristics so intolerable that leaves no room for discussion of fairness in sport.

This drastic contrast of views between the CAS, SFSC, and the ECtHR sparks interesting but complex questions that along with a few other grounds may form the below basis for the involvement of the GC.

The judgment of this divided Court (the narrow majority of 4-3 in upholding violations), could delve deeper into many issues that have received minimal or no attention from previous courts. The dissenting opinion of the three judges recognizes the fairness of sport as a new issue with little guidance and consensus on it that requires a careful analysis of the rights of two protected groups: women and intersex persons! This is precisely where the involvement of the GC holds the greatest potential for reconciling the above divergent approaches and examining whether fairness in sport can be translated into the human right of a wider protected group to just and favorable working conditions.

Jurisdictional considerations also carry significant importance in this case. The question that how the ECtHR can take up the complaint of an athlete residing in South Africa, against Switzerland, about regulations adopted in Monaco, with implications on many SGBs headquartered in Switzerland and an impact extending to millions of athletes around the world, is worth further consideration.

Moreover, the issue of degrading and inhuman treatment (deemed ill-founded by the judgment), and the procedural aspects of the proceedings (including the potential question of independence and impartiality of CAS), which the Court declined to address, possess a good potential for a thorough review by the GC.

Both the judgment itself and the various separate opinions of the judges acknowledge the novelty of these issues. These questions are not only new, but also socially sensitive, and encompass serious issues of general importance with significant repercussions for countless individuals all over the world (beyond just European citizens). A thorough analysis in this regard will be a major contribution to the development of the case law of the Court, particularly considering the substantial variations in both national jurisdictions and the practice of SGBs (most of them headquartered in Switzerland under the jurisdiction of the ECtHR). These elements meet almost all the criteria considered by the GC in admitting the referral requests.