In Semenya v. Switzerland, the ECHR ruled on 11.07.2023 that there had been a violation of Article 14 of the European Convention on Human Rights, which provides for the prohibition of discrimination, in relation to Article 8 on the right to respect for private and family life, by ordering the applicant to reduce her testosterone levels by taking medication, and of Article 13, which provides for the right to an effective remedy, in relation to Article 14 and Article 8, all of the European Convention on Human Rights, as the applicant did not have sufficient safeguards to challenge the decisions taken against her.
Context
The applicant is a South African athlete of international standing who specialises in middle distance running (800-3000m). She won gold medals in the women’s 800m event at the Olympic Games in London (2012) and Rio de Janeiro (2016). She is also a three-time world champion in this event (Berlin 2009, Daegu 2011, London 2017).
Following her victory in the women’s 800m event at the 2009 World Championships in Berlin, she underwent a gender verification test to check if she is biologically male due to the high testosterone levels detected.
At the time the IAAF warned her that she would have to reduce her testosterone level below a certain threshold if she wanted to compete at the distances she normally competed at in future international athletics competitions.
Following the hormone treatment she took to lower her testosterone, she suffered serious side effects. Despite this, the applicant won the women’s 800 metres event at the Daegu World Championships (2011) and the London Olympics (2012).
Following the CAS interim ruling in the Dutee Chand case (24 July 2015), which temporarily suspended the IAAF rules as the IAAF had failed to demonstrate that hyperandrogenic athletes had a significant performance advantage over other athletes, the applicant stopped taking hormone treatment reducing her testosterone levels.
Three years later the IAAF published its new regulations. The applicant refused to comply because they required her to take hormone treatment, the side effects of which were still unclear, to reduce her testosterone levels so that she could compete in national competitions in the women’s event.
Proceedings before CAS
In the same year, the applicant filed a request for arbitration before CAS challenging the validity of the new IAAF rules.
On 30 April 2019 the CAS rejected the request for arbitration. The majority concluded that, although the DSD Rules were discriminatory, they were nevertheless a necessary, reasonable and proportionate means to achieve the objectives pursued by the IAAF, namely to ensure fair competition.
The overwhelming majority of the experts cited by the parties considered that testosterone was the main factor in the physical advantage and therefore in the gender gap in sports performance.
Proceedings in federal court
On 28 May 2019, the plaintiff brought a civil action before the Swiss Federal Court, alleging, inter alia, discrimination on the grounds of sex against male and female athletes without DSD, as well as violation of her human dignity and personal rights. Her appeal was accompanied by a request for supervening and provisional measures, as well as an application for suspensive effect, in order to obtain the annulment of the CAS decision of 30 April 2019.
In a judgment of 25 August 2020, the Federal Court dismissed the appeal, finding that the IAAF regulations constituted an appropriate, necessary and proportionate measure in relation to the legitimate objectives of sporting fairness and the maintenance of the “protected class”.
The Federal Court held as follows:
“The DSD Rules were issued by the IAAF, an association governed by Monegasque private law. An athlete domiciled in South Africa and her national federation, also constituted as an association governed by private law, challenged the validity of these regulations by initiating arbitration proceedings against the IAAF before the CAS. The CAS is neither a state court nor another Swiss public law institution, but an entity, without legal personality, emanating from the CIAS, i.e. a Swiss private law foundation (European Court of Human Rights Mutu and Pechstein v Switzerland judgment of 2 October 2018, § 65). In the proceedings before it, the CAS Commission did not examine the validity of the DSD Regulation under Swiss law, as it applied the IAAF’s internal regulations (“IAAF Constitution and Rules”), the Olympic Charter and Monegasque law. (…)
In the light of the above principles, it must be accepted that the special rules governing appeals against international arbitral awards – in particular the limitation of admissible complaints (exhaustive list in Article 190(2) TILA), a substantive review of the arbitral award exclusively in the light of the restrictive concept of public policy (Article 190(2)(e) TILA), strict requirements as to the pleading and reasoning of claims and, in general, a limited power of review on the part of the Federal Court – are compatible with ECHR guarantees. It follows from the above that the Federal Court cannot be assimilated to a court of appeal which would supervise the CAS and freely review the merits of international arbitral awards rendered by this judicial body (…). “
In the present case, the CAS considered, after a thorough and detailed examination, that the eligibility conditions set out in the DSD Regulations were prima facie discriminatory because they created a differentiation based on legal sex and innate biological characteristics, but that they constituted a necessary, reasonable and proportionate measure to ensure fairness and the defence of the “protected class” and to guarantee fair competition.
Evaluation of the European Court of Human Rights
- On the violation of Article 14 in connection with Article 8 of the Convention;
By this judgment, the Court recalls that Article 14 of the Convention provides protection against any discrimination in the exercise of the rights and freedoms guaranteed by the other normative clauses of the Convention and its Protocols.
According to the Court’s settled case-law, for a question to arise under that provision, there must be a difference in treatment between persons in similar or comparable situations. Such a difference is discriminatory if it is not based on an objective and reasonable justification, that is, if it does not pursue a legitimate aim or if there is no reasonable relationship of proportionality between the means used and the aim pursued. In other words, the concept of discrimination usually covers cases where one person or group is treated less favourably than another without adequate justification, even if the Convention does not require the most favourable treatment.
The Court pointed out that in the domestic proceedings there was no adversarial debate on the question whether the applicant could be compared with persons in similar or comparable situations to her. However, previous courts had tacitly accepted that the situation of the sportswomen and that of the applicant as an intersex sportswoman were equivalent. The Court does not now have sufficient evidence to take a different view.
The Court concluded that the applicant’s situation could be compared to that of other sportswomen and that she may have been treated differently from them as a result of her exclusion from competition under the DSD Regulation.
The Court emphasised that it had taken into account the specific nature of the applicant’s situation as she had freely chosen a particular career in athletics. While such a career undoubtedly offers many privileges and advantages, it also entails the surrender of certain rights. Such limitations are acceptable under the Convention if freely consented to.
However, in the present case, the applicant argued before the Court that it had no choice but to sign the binding arbitration clause which excludes all remedies before the ordinary national courts. The Court considers that the interested party had no alternative but to refer the matter to CAS and then to the Federal Court under the rules on international sports arbitration.
As regards the present case, the Court considered that the applicant had lodged a complaint of discrimination with the CAS and the Federal Court, the a priori arguable and serious nature of which was not rejected by those courts.
In this regard, the Court points out that the CAS itself expressed serious concerns about the DSD Regulation in at least three respects. It recognised that the side effects of the hormone treatment were “significant”; it also noted that an athlete, although scrupulously following the hormone treatment prescribed to her, might find herself unable to meet the requirements of the DSD Regulation; finally, it considered that the evidence of a concrete athletic advantage for 46 XY DSD athletes in the 1500 metres and 1500 mile events was “scant”.
The Court emphasised that these serious concerns did not prompt CAS to suspend the regulation in question, as it had done in the Dutee Chand case a few years earlier. The Court did not do so in the present case. The Court notes that the DSD Rules themselves provide that the athlete must be given the benefit of the doubt.
For its part, the Federal Tribunal did not attempt to remove the doubts expressed by the CAS as to the practical application and scientific basis of the DSD Regulation. On the other hand, recent reports by human rights bodies, in particular the Parliamentary Assembly of the Council of Europe and the Office of the United Nations High Commissioner for Human Rights, express serious concerns about discrimination against women in sport, including intersex athletes, on the basis of regulations such as the one at issue in the present case. These concerns are confirmed by the observations of certain third parties involved in this case and by recent scientific research.
The Court considers that neither the CAS nor the Federal Tribunal has carried out a thorough examination, in the light of the Convention, of the reasons supporting the objective and reasonable justification of the DSD Regulation.
In order to comply with the requirements of Article 14 of the Convention, the Federal Court should have weighed the interests relied on by World Athletics, in particular that of fair competition, against those relied on by the applicant, in particular those relating to her dignity and reputation, her physical integrity, her privacy, including her sexual characteristics, and her right to exercise her profession.
However, the Federal Court did not do so because, according to its case law, such an examination does not fall within the notion of public policy.
In the present case, the Court noted that the Federal Court assumed that the DSD Regulation gave the applicant a real “choice“, pointing out that contraceptive pills were not forcibly prescribed to female athletes 46 XY DSD, as they always retained the possibility to refuse to undergo such “treatment”.
However, the Court considers that the applicant does not have a real choice: either she submits to medical treatment, likely to affect her physical and mental integrity, in order to reduce her testosterone level and be able to exercise her profession, or she refuses that treatment with the consequence of having to give up her favourite competitions and, therefore, the exercise of her profession.
In other words, whatever his decision, the solution chosen in any event involves a waiver of certain rights guaranteed by Article 8 of the Convention. In order to satisfy the requirements of the Convention, the Federal Court would have had to address the problem facing the applicant.
The applicant argued that the confusion made by the respondent government and World Athletics between her situation and that of transgender athletes was inappropriate in that the balancing of interests in the two cases is very different.
The Court noted that the World Athletics regulations were essentially the same in respect of transsexual and intersex athletes at the material time.
The equality of treatment between the applicant and transsexual athletes who have undergone a sex change from male to female is not apparent.
The Court points out that in the case of transsexual sportswomen, the advantage they enjoy is due to the inequality inherent in their birth as men. The advantage derives from their original biological constitution and, moreover, the treatment they are required to undergo in order to reduce their testosterone level corresponds to an adaptation of the treatment already prescribed to them.
The Court concludes that, in the context of a forced arbitration which deprived the applicant of the possibility of bringing proceedings before the ordinary courts, the only avenue open to the interested party was CAS which, despite very detailed reasoning, did not apply the Convention and left considerable doubt as to the validity of the DSD Regulation, in particular as regards the side effects of the hormone treatment, the inability of the athletes to meet the requirements of the DSD Regulation and the proof of a concrete athletic advantage for the 46 XY DSD athletes in the 1 500 metres and mile disciplines.
In addition, the review exercised by the Federal Court, which was seised of an appeal against the CAS decision, was very limited, i.e. limited to the compliance of the arbitral award with public policy, and in the present case did not address the serious concerns expressed by the CAS in a manner consistent with the requirements of Article 14 of the Convention.
The Court considers, for the reasons set out above, that the applicant did not benefit in Switzerland from sufficient institutional and procedural safeguards which would have enabled her to pursue her complaints effectively, especially as they were well-founded and credible complaints of discrimination suffered because of a high level of testosterone caused by her DSDs.
Accordingly, and in particular in view of the significant personal interest at stake for the complainant, namely her participation in athletics competitions at international level and therefore her pursuit of her profession, Switzerland exceeded the limited margin of appreciation it enjoyed in the present case, which concerned discrimination based on sex and sexual characteristics, which can only be justified by “very strong considerations”. The importance of the case for the applicant and the defendant State’s limited margin of appreciation should have led to a thorough institutional and procedural review, which the applicant did not enjoy in the present case.
The Court cannot therefore consider that the DSD Regulation, as applied to the applicant, can be regarded as an objective measure proportionate to the aim pursued.
- On the violation of Article 13 of the Convention in connection with Article 14 and Article 8;
The Court concluded that there had been a violation of the right to an effective remedy within the meaning of Article 13 of the Convention for essentially the same reasons as those which led it to find a violation of Article 14 in conjunction with Article 8 of the Convention, namely the absence of adequate institutional and procedural safeguards in Switzerland.
In that regard, it points out that, in the context of an arbitration which was imposed on it by the relevant sporting regulations and which excluded the right to apply to any ordinary court, the applicant had no option but to apply to the CAS to challenge the validity of the DSD regulations. However, considering that the DSD Regulations were indeed discriminatory, but that they were nevertheless a necessary, reasonable and proportionate means to achieve the objectives pursued by the IAAF, CAS did not assess the validity of the regulations in question in the light of the requirements of the Convention and, in particular, did not respond to the allegations of discrimination in the light of Article 14 of the Convention, despite the applicant’s well-founded and credible complaints.
As for the Federal Court, its power of review in the present case was very limited, as it concerned a question of sports arbitration and was therefore limited to the question whether the contested judgment was contrary to public policy within the meaning of Article 190(2)(e) of the LDIP.
The Court considers that the complaints lodged with the CAS and the Federal Court were well founded and based directly or in essence on the Convention.
In her appeal of 28 May 2019 to the Federal Court, the Complainant alleged, inter alia, discrimination on the basis of sex in relation to male and female athletes without DSD, as well as a violation of her dignity and personality rights. This enabled the Federal Court to rule on these complaints.
However, like the CAS before it, the Federal Court, in particular because of its very limited power of review, did not respond effectively to the complainant’s well-founded and credible allegations, including of discrimination.
The Court concludes, in the context of its limited role as guardian of European public policy, that, taken as a whole and in the particular circumstances of the present case, the domestic remedies available to the applicant cannot be regarded as effective within the meaning of Article 13 of the Convention.
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