Up Against It

The Grand Chamber (GC) ruled that Caster Semenya did not benefit from a fair hearing contrary to Article 6 §1 European Convention on Human Rights (ECHR). However, it did not extend Switzerland’s jurisdiction to her substantive complaints under Article 8 ECHR, taken alone or in conjunction with Article 14 ECHR, which go to the heart of her case. This comment critiques these inadmissible aspects of the Judgment and emphasises that although the GC was up against it in the current stormy political landscape of sex and gender, it could have gone further to protect fundamental rights.

Semenya and the ruling

Olympic South African female athlete Caster Semenya first clashed with World Athletics (WA) gender eligibility rules in 2009, when our general understanding of the intersection between sex, gender and sport was quite narrow. Since then, there has been a steady evolution of sex and gender perspectives in society, and some countries have advanced in law-making to recognise diverse gender identity beyond binary categories, including differences of sexual development (DSD) people and trans people.

Semenya and the inclusion of gender diverse athletes in sport have tested the binary boundaries of sport categorisation, law and regulation. Gender eligibility in the female category of sport is charged with considerations of biological sex differences, physiological advantage, permitted hormone levels, safety, fairness and human rights. Over the past twenty years, regulation has slowly progressed, and sports bodies are attempting to reconcile competing interests. Semenya’s legal journey has been a prominent feature of this debate and her formal battle against the WA DSD Regulations 2018, which require DSD females to undergo hormone treatment to lower their naturally elevated testosterone levels connected to a DSD identity, has prompted greater analysis. Semenya submitted that the DSD Regulations violated her rights.

Semenya was unsuccessful before the Court of Arbitration for Sport (CAS) (in 2019) and the Swiss Federal Supreme Court (SFC) (in 2020). She fought her way to the European Court of Human Rights (ECtHR) and in 2023 the Chamber held by a majority that there had been a violation of Article 8 ECHR (respect to private life), taken alone and in conjunction with Article 14 ECHR (prohibition of discrimination), and Article 13 ECHR (right to an effective remedy), by failing to secure safeguards in the review of Semenya’s case. In 2023, the Swiss Government requested a referral to the GC and Semenya was finally victorious in her seven-year legal battle when in July 2025 the GC ruled that she did not benefit from a fair hearing by the Swiss Federal Court (SFC), contrary to Article 6 §1 ECHR.

The GC Judgment certainly represents a pivotal moment in sports law and regulation, as indicated by prominent colleagues in this field.  The finding of a violation of Article 6 §1 by the SFC in the examination of Semenya’s complaints has significant implications upon future sports regulation since it sends an alert to private entities such as international sports regulatory systems that Convention rights must be respected. Since CAS has a seat in Switzerland and there is a civil-law appeal route to the SFC, an extraterritorial link was established in the context of the complaint under Article 6 §1 to admit this complaint (para 123). In assessing its merits, the GC asserted that this is so because of a “structural imbalance” between athletes and sports bodies where athletes are subject to the compulsory and exclusive jurisdiction of CAS for the examination of disputes. In those circumstances, the athlete should benefit from the safeguards provided for in Article 6 §1. The recognition of this “vertical relationship” between an athlete and a sports body by the GC is significant progress in this area and some vindication for those caught in the restrictive arbitration system.

Limiting Switzerland’s jurisdiction

At the same time, in respect of the rights of DSD athletes, this could be viewed as a muted success because this reasoning did not extend to substantive rights. The GC ruled in a majority of 13 votes to 4 that Semenya’s complaints of Article 8 alone or in conjunction with Article 14 were inadmissible in the absence of a territorial link to Switzerland, relying on case law such as Markovic and Others. The GC might have gone further to confirm obligations in the context of substantive rights, given that privacy and discrimination reach to the heart of Semenya’s case.

While it is accepted that the obligation to secure the rights and freedoms of the Convention falls only on those within the jurisdiction of the High Contracting Party, it does leave athletes like Semenya in no-persons land, since she has been subject to compulsory arbitration, in that her challenge of the DSD Regulations was limited only to CAS because sports bodies restrict access to the ordinary courts. Unlike other cases drawn upon throughout the present case (Platini), Semenya was denied access to domestic courts because of the imposition of compulsory arbitration, leaving her with no choice in her legal route. Although this imbalance of power in the sport arbitrary system was consistently recognised as a specific circumstance for the purpose of the admissibility of Article 6§1, it did not encourage the GC to extend extraterritoriality to the substantive rights.

It seems contradictory to make an exception in respect of the procedural right of Article 6 §1  but restrict that extension for Article 8 and 14. This view is shared in the partly dissenting joint opinion of Judges Bošnjak, Zünd, Šimáčková and Derenčinović in the GC Judgment:

 ‘It is inconceivable that domestic courts, ruling within the territory of Europe, should disregard international fundamental rights obligations in the area of the protection of bodily integrity, equality and human dignity, even where highly specialised proceedings-in this instance, sports arbitration- are in issue’ (P. 113, Para 1).

No special features

Only in exceptional circumstances will the GC rule that a State has extraterritorial jurisdiction in respect of complaints, To rule that there were no “special features” which would establish this jurisdictional link for the substantive rights (Para 146),  overlooks the fact that there are no other comparable cases before the ECtHR in that Semenya was bound by compulsory arbitration, which restricted her access to the ordinary courts. The only possible direction was to CAS and the SFC, which has a seat in Switzerland. In my view, this is precisely the kind of exceptionality that should have led to a conclusion of extraterritorial reach (Para 148), particularly given that this reasoning underpinned the admissibility of Article 6 §1.

Symbolically, this is an entirely novel case, like no other. In the partly dissenting joint opinion, the Judges coined the term “Lex Semenya” to illustrate the targeting of the DSD regulations and the arbitrariness of them (P. 113). It also speaks to the highly exceptional nature of this case, which might warrant extraterritoriality. Moreover, the Judgment acknowledges the control and dominance of sports bodies over its athletes, which goes to the core of Semenya’s fight and the deprivation of an individuals’ rights and freedoms in the context of a complex sport arbitration system. To rule that this is not special for the purpose of Switzerland’s jurisdiction is a missed opportunity for DSD athletes.

The DSD regulations

In assessing the merits of the complaint under Article 6 §1, and concluding that the SFC fell short of the requirement to carry out a rigorous review of the CAS award, the GC highlighted gaps in the review of the DSD Regulations by CAS and provided many examples of where the SFC could have more closely examined the CAS Award. In doing so, the GC seems to acknowledge the substantial harms suffered by Semenya in respect of the DSD Regulations, alluding to ambiguities in the DSD Regulations and the seriousness of the personal rights at stake here, which required a thorough investigation by the SFC (Para 209). The GC further stated that the SFC had the authority to overturn the CAS award as they have done previously (Para 233). On the one hand, the GC emphasised substantive flaws in the handling of the case by CAS and the SFC but remained within procedural parameters on those matters.

The shifting landscape of the case

Over the course of this case, the landscape has dramatically shifted and the GC Judgment is delivered at a time of great political tension. We are in the centre of a sex and gender storm and there appears to have been an aggressive rollback on the inclusion of gender diverse people into many societies, with harmful implications for participation in sport. In the UK, in 2025, the Supreme Court ruled that the correct statutory interpretation of sex within the Equality Act 2010 (EA) is based upon biological sex (a person born female). Alongside this, in the USA, the Trump administration has pushed down on gender identity and removed protections for trans people, with laws banning trans female athletes from competing in female sports.

These legal hammers in the UK and the USA are influencing sports bodies to confine the female categories to birth sex/biological sex, with a general trend towards the ineligibility of trans female athletes, and with stricter rules for DSD athletes on reducing testosterone levels through medical intervention (which are somewhat overshadowed by the trans debate). Whilst the aim of these restrictions is to maintain fair and safe competition for female participants, their compatibility with human rights is ambiguous. Many anticipated that the GC Judgment might clarify obligations in respect of restrictive DSD Regulations and, indirectly, contribute to general discussions around trans female athletes (although these are two distinct matters).

Yet, the ECtHR is also under significant criticism from Council of Europe members for arguably overreaching the scope of the Convention and encroaching on the sovereignty of States. Its specific relationship with Switzerland, the respondent in this case, is equally turbulent.

Given the present political landscape outlined, the rejection of the Article 8 and 14 complaints is not entirely surprising. The ECtHR face considerable external pressures in reaching its conclusions –  this is a high profile matter concerning sex, gender and sports regulation; it is a novel case because it raises key legal complexities in assessing admissibility and merits of the complaints (as articulated in the partially dissenting joint opinion p. 117); close attention is being paid to the Court’s position and ability to appropriately balance State interests. The collective impact of these power relations might have contributed to the inadmissibility of the substantive rights, but as a consequence Semenya’s unique and vulnerable position was sidelined.

They think it’s all over…

The ECHR is often celebrated as a living instrument that is interpreted in light of present-day conditions.  As outlined, those present-day conditions are turbulent, and the GC Judgment should be interpreted in the context of the stormy unrest that they were up against. The successful ruling of a violation of Article 6 §1  by the SFC will significantly impact sports governance and the relationship between sports arbitration and human rights. For DSD athletes, the inadmissibility of the substantive rights complaints leaves open the question of how such athletes might assert their human rights when they are caught up in compulsory arbitration. The ruling does mean that Switzerland has a legal obligation to make good the Article 6 §1 violation, under the supervision of the Committee of Ministers, and to avoid similar violations in the future (Article 46 ECHR). It does also leave open the possibility of pursuing a revision of the SFC Judgment under Article 122 of the Federal Supreme Court Act 2005, since there has been a violation under Article 6 §1. This might create an opportunity for a review of the substantive merits of the case. In 2018, I warned in a BBC interview that it will take a brave individual to take on sports bodies and assert their human rights at the cost of their career. In Semenya we trust.