Judgement 10934/21

pplicant name Semenya
Applicant type Natural person
Number of applicants1
Application no. 10934/21
Date 11/07/2023
Judges Pere Pastor Vilanova, président,
 Yonko Grozev,
 Georgios A. Serghides,
 Darian Pavli,
 Peeter Roosma,
 Ioannis Ktistakis,
 Andreas Zünd
Institution Court
Type Judgment
Outcome Art. 8 Violation
Reason Article 8+14 ECHR (positive obligation)
Type of privacy Bodily & Mental Integrity; procedural privacy
Keywords Intersex athlete; discrimination
Facts of the caseThis case revolves around Caster Semenya, an athlete who, among others, has an abnormal natural level of testosterone for a women. As such, sport organizations have adopted measures, inter alia, disallowing her from joining women competition and mandating treatment lowering testosterone levels.
Analysis1. The sports world and the rules applicable to it is one of the most complicated legal topics in the world, inter alia because there are so many parties involved, because they are based in a wide variety of jurisdictions and because they are mostly private institutions, while their power over the lives of athletes is unmatched even by Google or Facebook in terms of the amount and intimacy of the personal data collected.
2. A first question the Court has to deal with in this case is whether it has competence, because the international sport organization that took a decision against Semenya, a South-African national, is based in Monaco, over which it has no jurisdiction. However, because the sport tribunal (CAS) and competent judicial authorities are based in Switzerland, over which it does have jurisdiction, it decides it has competence both ratione personae and loci.
3. Under the complaint of a violation of Article 8+14 ECHR, the Court discusses three matters. First, it assesses whether the differentiation was prohibited under Article 14 ECHR. The Court finds that such is the case, as Semenya claims to be have discriminated on the basis of her sex (gender). The Court does not go into the accusation of Semenya that it are primarily athletes from the global south that are targeted by the sports organizations. Second, the Court finds that there is an interference with Semenya’s rights. Third, the Court points out that the core question is whether Switzerland adhered to its positive obligation under Article 14 to prevent discrimination and that it will focus mainly on the existence of adequate procedural safeguards. It then points out that it will in particular focus on five aspects: (i) the supervisory power of the Sports Tribunal and the Swiss court, (ii) the scientific doubts as to the justification of the sport regulation, (iii) the weighing of interests and the taking into account of side effects caused by the required drug treatment, (iv) the horizontal effect of discrimination, and (v) the comparison with the situation of transgender athletes.
4. As to (i), the ECtHR points out that the sports tribunal, as a private disciplinary institution, is not as such bound by human rights frameworks, and that the competence of the Swiss court over matters decided by the sports tribunal is very limited. Although professional arbitration can be allowed and is sometimes necessary, the Court finds that because the competence of sports organizations over the lives of athletes can be very big, such limited human rights review is undesirable. As to (ii), the Court points to the many concerns by experts and human rights organizations about the necessity and reasonability of the rules affecting in particular intersex athletes, and the Court feels that the sports tribunal and the Swiss court have not sufficiently scrutinized whether there were reasonable and objective grounds for the distinctions made in the sports regulations. As to (iii), the ECtHR is sharp. The athlete had no real choice in this case, but to violate her right to privacy: ‘la Cour est d’avis que la requérante n’a pas de véritable choix : soit elle se soumet à un traitement médicamenteux, susceptible de porter atteinte à son intégrité physique et psychique, afin de diminuer son niveau de testostérone et de pouvoir exercer son métier, soit elle refuse ce traitement avec la conséquence de devoir renoncer à ses compétitions de prédilection, et donc à l’exercice de sa profession. En d’autres termes, quoi qu’elle décide, la solution retenue implique de toute façon une renonciation à certains droits garantis par l’article 8 de la Convention. Pour satisfaire aux exigences de la Convention, le Tribunal fédéral aurait dû aborder le dilemme auquel la requérante est confrontée (§187)’. The Court points out that such a treatment may also have (medical) side effects, to the detriment of applicant. As to point (iv), the Court finds that countries have a positive obligation to address human rights violations in horizontal situations. The fact that the Swiss court did not assess the claim of Semenya with an eye to the prohibition of discrimination thus violated this obligation. As to (v), again, the Court is very critical. It finds that essentially, the sport rules for transgender and intersex people are the same, while this is not obvious to the Court, as the first group have undergone a sex reassignment surgery, while the second group by nature have elements typically found with men and women. Thus, the Court finds a violation of Article 14+8 ECHR and also of Article 13+14+8 ECHR, essentially on the same grounds. The Court does not find it necessary to issue a judgement on the question of a violation of Article 3, Article 6 and Article 8 ECHR alone.
5. The case is quite revolutionary and stands in contrast with other cases by the Court concerning sport issues in which it was more lenient. What is interesting is that both violations are found on the slimmest margin, namely 4 against 3. Judge  Pavli has written a concurring opinion and judge Serghides, who concurs with the violations found, but feels that the Court should also have engaged with the complaints under Article 3, 6 and 8 ECHR, has written a partly concurring and partly dissenting opinion, concluding that a violation of Articles 3 and 8 ECHR should have been found. Judges Grozev, Roosma and Ktistakis have written a dissenting opinion, mainly casting doubt on the competence of the Swiss court and by proxy by the ECtHR to evaluate measures adopted vis-à-vis a South-African athlete by a sport organization based in Monaco. They feel this judgement comes close to accepting a universal jurisdiction by the Court.
Other Article violation? Article 13+8+14
Damage awardedSays, by four votes to three,
(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 60,000 (sixty thousand euros), plus any amount which may be due on this sum by the claimant by way of tax, for costs and expenses, sum to be converted into Swiss francs at the rate applicable on the date of settlement;
(b) that from the expiry of the said period and until payment, this amount shall be increased by simple interest at a rate equal to that of the marginal lending facility of the European Central Bank applicable during this period, increased by three percentage points;
Documents Judgment