ELIGIBILITY TO COMPETE IN THE FEMALE CATEGORY FOR ATHLETES WITH DIFFERENCES IN SEXUAL DEVELOPMENT («DSD»): THE ECHR CONDEMNS SWITZERLAND

Abstract

In a ruling handed down on July 11, 2023, the European Court of Human Rights condemned Switzerland for the discriminatory treatment suffered by Caster Semenya1. The claimant, a South African athlete with variations in sexual development, had challenged before the Court of Arbitration for Sport, and then the Swiss Federal Court, the conditions of application of the
World Athletics rules governing eligibility to compete in the women’s category (“DSD” rules), which impose a maximum testosterone level to compete with women athletes. The High Court held that the Swiss courts’ lack of scrutiny had not provided sufficient institutional and procedural safeguards, resulting in a violation of Articles 8, 14 and 13 of the Convention. This solution is indicative of a future dispute: that of balancing the interference caused by the World Athletics rules with regard to the competitive imperative, against the fundamental rights of athletes who wish to compete in their gender category.