Are We Racing Toward or Against Equality in Sports? The Case of Caster Semenya and the Intersection of Sports Law and International Human Rights Law

Isabel Bysiewicz April, 2025

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In 2018, the International Association of Athletics Federations (IAAF), now referred to as World Athletics, adopted restrictive rules for women with naturally higher testosterone levels participating in international races.[1] To maintain eligibility in the women’s category of select middle-distance track events, athletes with testosterone levels above the set threshold were required to lower and maintain their testosterone at levels set by the “Differences of Sex Development” (DSD) regulations.[2] By the time these standards were created, Caster Semenya had already proved herself to be a premier athlete, winning gold in the 800 meters at both the London and Rio Olympic games.[3] Although she has been barred from competing in her best events for several years, she has launched a legal challenge that has reached one of the highest courts in Europe.

Caster Semenya’s Litigation

At the 2009 Berlin World Championships, Semenya beat every other competitor in the 800 meters by at least two seconds.[4] She was just 18 years old. Following her victory, press and commentators levied scrutiny against the South African athlete, specifically questioning her gender.[5] Time magazine even published an article online headlined, “Could This Women’s World Champ Be a Man?”[6] The IAAF waited until July of 2010 to formally announce that Semenya could return to the track after her victory.[7]

The 2018 regulations required women with naturally occurring testosterone levels above a certain level to undergo what many consider to be “medically unnecessary” hormone therapy to reduce their testosterone levels.[8] Semenya refused to take medication, as well as the alternatives presented to her by the sports governing body: either change her distance, choose to compete in the male category, or run in some future intersex division — if it ever became available.[9] Nearly a decade prior, she had agreed to forcefully reduce her testosterone levels following her 2009 victory.[10] At that time, she was relatively new to the international stage and said “I thought I could get through anything.”[11] But after taking medication, her side effects were numerous — heavy muscles, exhaustion, nausea.[12] Barred from international competitions in the women’s division of her best events nearly a decade later, Semenya took her claims to court.

Before the Court of Arbitration of Sport (CAS) based in Lausanne, Switzerland, Semenya argued that the regulations were discriminatory, as they only apply to female athletes, and further only to female athletes with certain traits.[13] She asserted that the regulations were not grounded in solid scientific evidence, were unnecessary for ensuring fair competition in the female category, and could potentially cause irreversible harm to the female athletes affected.[14] In 2019, the CAS sided with the World Athletics standards, finding that the requirements amounted to “necessary, reasonable and proportionate means” of preserving fair competition in women’s sports.[15] Switzerland’s highest court dismissed her appeal.[16]

But in 2023, the European Court of Human Rights ruled in Semenya’s favor.[17] The court claimed that the Swiss adjudicators failed to carry out a “thorough and sufficient examination” of Semenya’s complaint and neglected to engage in a proper weighing of interests.[18] The court stated that affected athletes have no viable choice and that forcing Semenya to choose between gender testing or not competing would “necessarily lead to the waiving of certain rights” protected by the European Convention of Human Rights.[19] But, the ruling did not mean she could run in any event.[20] And Swiss authorities have appealed the 2023 ruling in favor of Semenya to the full Grand Chamber of the European Court of Human Rights.[21]

DSD Regulations

Sex verification in sports has a storied history.[22] In fact, from 1968 to 1999, the Olympics mandated gender verification testing for female competitors.[23]

A 2020 Report of the United Nations High Commissioner for Human Rights expressed concern that the regulations could put athletes at potential harm by compelling “unnecessary medical interventions that affect hormones and reproductive anatomy.”[24] Lowering testosterone levels can involve potential risks. Negative side effects can include medical consequences, such as blood clotting, and athletes would be doing this only to comply with certain standards.[25] There is additional concern that hyperfocus on women with naturally high levels of testosterone will exacerbate “misunderstandings and further stigmati[ization] and marginaliz[ation].”[26] Further, writers have pointed out that other biological advantages are not seen as unfair, or spark conversations related to disqualification.[27]

“I refused to again subject myself to the mental anguish and physical torture of the poison. I was no longer an 18-year-old girl desperate to run,” Semenya wrote in a 2023 New York Times opinion piece.[28] “I was a world champion, an Olympic champion. I had achieved my dreams.”[29]

Incompatibility between Sports Law and Human Rights

The inconsistency between Semenya’s favorable ruling in front of the European Court of Human Rights and her continued disqualification from World Athletics events exposes what scholars have referred to as a “lacuna” between protection of international human rights and sports law.[30] The criticisms of the ruling against Semenya are wide-ranging. Citics have asserted that the ruling’s language perpetuates harmful stereotypes against those affected by the DSD regulations, and that sports arbitrators are likely not well-equipped to adjudicate these issues.[31] Further, writers have criticized the DSD regulations as being based on a slippery slope argument and a violation of privacy.[32]

Groups in the United Nations have also sounded the alarm. In September 2018, the Special Rapporteurs on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health and on torture and other cruel, inhuman or degrading treatment or punishment, as well as the Chief-Rapporteur of the Working Group on the issue of discrimination against women in law and in practice penned a letter denouncing the regulation as violating a host of human rights.[33] The letter noted that the regulations “seem to ignore the real stigmatizing and discriminatory impact of the processes and outcomes of the regulations on the dignity and privacy of the targeted group of women.”[34]

Still, despite Semenya’s continued ban from competition, many see her case as having the potential to “reshape the landscape” of athletic rights in sports.[35] This potential could come to fruition in the upcoming years with new regulations and future litigation. In 2023, World Athletics expanded the restrictions to all events, as well as cut the maximum testosterone levels in half.[36]

Future Litigation and Remedies

While Semenya’s case is still waiting for finality, other athletes have refused to go down without a fight. When the 2018 regulations came out, Kenyan sprinter Maximila Imali initially changed their events to comply with the rules.[37] But the new standards were published a little over a year before the 2024 Olympics.[38] So instead of heading to Paris this past summer, she argued her case in Switzerland, according to the New York Times.[39] In an interview Imali said, “They need to understand that we are human … and they need to respect human rights.”[40]

International lawyers and human rights defenders have pointed out a range of other avenues to remedy the gap between sports and human rights law on the global stage beyond arbitration at CAS. In 2020, a Report of the United Nations High Commissioner for Human Rights stated that the regulations may violate a number of human rights, including the right of everyone to be free from arbitrary interference with their privacy; the right to respect for the dignity, bodily integrity and bodily autonomy of the person; and more.[41] Commentators have put forth a number of possible reforms, such as multilateral treaties specifically on matters of sport and human rights and a Court of Arbitration for Sports and Human Rights, which would have jurisdiction over human rights disputes arising in sports competitions.[42]

Conclusion

The trend of more restrictive standards has led to one of the most high-profile cases in modern international sports law jurisprudence. The landscape of litigation relating to World Athletics’ DSD Regulations is far from settled. If Semenya loses her case at the Grand Chamber, or the court continues to block affected athletes from competition, it may be time to consider alternatives to ensure that human rights are respected in international sporting competitions.

  1. Signmund Loland, Caster Semenya, Athlete Classification, and Fair Equality of Opportunity in Sport, 46 J. Medical Ethics, 584 (2020).↑

  2. Id. ↑

  3. Caster Semenya, Olympics, http://www.olympics.com/en/athletes/caster-semenya (last visited March 10, 2025).↑

  4. Taylor Vann, Caster Semenya and the Policing of Competitive Athletic Advantage, 53 Conn. L. Rev. 1019, 1021 (2022).↑

  5. Aaron Paster, Unwarranted and Invasive Scrutiny: Caster Semenya, Sex-Gender Testing and the Production of Woman in ‘Women’s’ Track and Field, 122 Feminist Rev., 1, 2 (2019).↑

  6. William Lee Adams, Could This Women’s World Champ Be a Man?, Time, http://time.com/archive/6947724/could-this-womens-world-champ-be-a-man (Aug. 21, 2009).↑

  7. Paster, supra note 5, at 2.↑

  8. Caster Semenya Loses Appeal for Equal Treatment, Human Rights Watch, http://www.hrw.org/news/2019/05/01/caster-semenya-loses-appeal-equal-treatment (May 1, 2019, 10:30 AM).↑

  9. Caster Semenya, Running in a Body That’s My Own, N.Y. Times, http://www.nytimes.com/2023/10/21/opinion/running-body-semenya.html (Oct. 21, 2023).↑

  10. Id. ↑

  11. Id. ↑

  12. Id. ↑

  13. Mokgadi Caster Semenya v. International Association of Athletics Federations, CAS 2018/0/5794, Court of Arbitration for Sport, 1, 2 (May 1, 2019).↑

  14. Id. ↑

  15. Media Release, Tribunal Arbitral du Sport, CAS Arbitration: Caster Semenya, Athletics South Africa and International Association of Athletics Federations (May 1, 2019).↑

  16. Semenya v. Switzerland, App. No. 10934/21, ¶ 30 (July 11, 2023).↑

  17. Id. at 84.↑

  18. Id. at ¶ 185.↑

  19. Id. at ¶ 187.↑

  20. Graeme Reid & Minky Worden, Caster Semenya Won Her Case, But Not the Right to Compete, Hᴜᴍᴀɴ Rɪɢʜᴛs Wᴀᴛᴄʜ, https://www.hrw.org/news/2023/07/18/caster-semenya-won-her-case-not-right-compete?gad_source=1&gclid=CjwKCAiArKW-BhAzEiwAZhWsIMBaDf8lQMnC6c-EdSpETbZj02rkLFbtLsKYRTGpDLLoANTtiYiT0RoCKHcQAvD_BwE (July 18, 2023, 12:22 PM).↑

  21. Semenya case referred to European right court’s grand chamber, Reuters, https://www.reuters.com/sports/athletics/semenya-case-referred-european-rights-courts-grand-chamber-2023-11-06/ (Nov. 6, 2023).↑

  22. Nishant Sheokand & Ananyo Mitra, Sprinting towards Justice: The Caster Semenya Case and Human Rights in Sports, 4 J. Sports L. Pol’y & Governance 1, 4 (2023).↑

  23. All Things Considered, The 100-year history of sex testing female athletes in elite sports, National Public Radio, (Aug. 2, 2024) https://www.npr.org/2024/08/02/nx-s1-5056212/the-100-year-history-of-sex-testing-female-athletes-in-elite-sports.↑

  24. Rep. of U.N. High Commissioner for Human Rights, at ¶ 34(d), U.N. Doc. A/HRC/44/26 (2020).↑

  25. Bowman-Smart et al., World Athletics Regulations Unfairly Affect Female Athletes with Differences in Sex Development. 51 J. Philos Sport J. 29, 46–47 (2024).↑

  26. Id. at 46.↑

  27. Id. at 42.↑

  28. Caster Semenya, Running in a Body That’s My Own, N.Y. Times, http://www.nytimes.com/2023/10/21/opinion/running-body-semenya.html (Oct. 21, 2023).↑

  29. Id.↑

  30. Lena Holzer, The European Court of Human Rights in the Caster Semenya Case: Opening a New Door for Protecting the Rights of Persons with Variations of Sex Characteristics in Human Rights in Sports, Oᴘɪɴɪᴏ Jᴜʀɪs, https://opiniojuris.org/2023/08/04/the-european-court-of-human-rights-in-the-caster-semenya-case-opening-a-new-door-for-protecting-the-rights-of-persons-with-variations-of-sex-characteristics-and-human-rights-in-sports, (April 8, 2023).↑

  31. Chanda & Saha, An analytical study of the human rights concerns before the CAS with reference to Caster Semenya, 22:314–331 Int’l Sports L. J. 1, 1 (2022).↑

  32. Loland, supra note 1, at 587.↑

  33. Mandates of the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health; the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; and the Working Group on the Issue of Discrimination Against Women in Law and in Practice, Letter to the IAAF by Special Rapporteur Dainius Pūras, et al., (Sept. 18, 2018) UN Doc OL OTH 62/2018.↑

  34. Id.↑

  35. Sheokand & Mitra, supra note 22, at 14.↑

  36. Graham Dunbar, Sex Eligibility Rules for Female Athletes Are Complex and Legally Difficult. Here’s How They Work, Associated Press, http://apnews.com/article/sex-eligibility-tests-female-athletes-07572d23d409126a8e069cb0bced1706, (Aug. 7, 2024).↑

  37. Jere Longman, An Olympic Dream Falters Amid Track’s Shifting Rules, N.Y. Times, http://www.nytimes.com/2024/01/24/world/africa/olympic-intersex-maximila-imali.html (Jan. 24, 2024).↑

  38. Press Release, World Athletics, World Athletics Council decides on Russia, Belarus and female eligibility (Mar. 23, 2023).↑

  39. Jere Longman, An Olympic Dream Falters Amid Track’s Shifting Rules, N.Y. Times, http://www.nytimes.com/2024/01/24/world/africa/olympic-intersex-maximila-imali.html (Jan. 24, 2024).↑

  40. Id. ↑

  41. Rep. of U.N. High Commissioner for Human Rights, at 9, U.N. Doc. A/HRC/44/26 (2020).↑

  42. West, Revitalising a Phantom Regime: the Adjudication of Human Rights Complaints in Sports, 19:2–17 Int’l Sports L. J. 2, 14–15 (2019).↑