Legal summary
July 2023
Semenya v. Switzerland - 10934/21
Judgment 11.7.2023 [Section III]
Article 13
Effective remedy
Ineffective remedies in respect of discrimination against professional athlete with differences of sex development who was required under non-State regulations to lower her natural testosterone level to compete in women’s category in international competitions: violation
Article 14
Discrimination
Discrimination against professional athlete with differences of sex development who was required under non-State regulations to lower her natural testosterone level to compete in women’s category in international competitions: violation
Facts – The application was lodged by a South African international-level athlete, specialising in middle-distance races (800 to 3,000 m), who complained about a set of regulations of the International Association of Athletics Federations (IAAF – now called World Athletics) entitled “Eligibility Regulations for the Female Classification (Athletes with Differences of Sex Development)” (“the DSD Regulations”) requiring her to take hormone treatment to decrease her natural testosterone level in order to be able to take part in international competitions in the female category. Having refused to undergo the treatment, she was no longer able to take part in international competitions. Her legal actions challenging the regulations in question before the Court of Arbitration for Sport (CAS) and the Federal Court were rejected.
While the proceedings were ongoing, the IAAF amended the list of differences of sex development (DSD) covered by the DSD Regulations; from that point onwards, they applied only to “46 XY DSD” athletes, that is, to persons with XY chromosomes, not to those with XX chromosomes. In other words, athletes with XX chromosomes having an increased level of testosterone were no longer subject to these Regulations.
Law –
Jurisdiction ratione personae and loci – The Court saw no reason to depart from its previous findings in other cases related to sports arbitration. The fact that the IAAF was a Monegasque private-law association with its seat in Monaco, and not a Swiss private-law association (like FIFA – Platini v. Switzerland (dec.), and the ISU – Mutu and Pechstein v. Switzerland) made no difference as regards the Court’s jurisdiction ratione personae and loci, especially since its examination would focus on the proceedings before the CAS and the Federal Court. Furthermore, in the present case, in the context of compulsory arbitration which had deprived the applicant of the possibility of applying to the ordinary courts in her own country or elsewhere, the only remedy available to her had been a request for arbitration to the CAS, followed by an appeal against the refusal of arbitration to the Federal Court. The Court did not deny that a “centralised” system for handling disputes in the domain of sport had its advantages, in particular, in order to guarantee a certain coherence and consistency in the case-law, internationally, through the CAS. The fact remained, nevertheless, that if the Court were to find that it did not have jurisdiction to examine this type of application, it would risk barring access to the Court to an entire category of individuals, that of female athletes, which would not be in keeping with the spirit, object and purpose of the Convention.
To the extent that the findings of the CAS had been reviewed by the Federal Court with regard to the applicant’s complaints, the Court concluded, in the light of its case-law, that the applicant’s case fell within the “jurisdiction” of Switzerland for the purposes of Article 1 (obligation to respect human rights) of the Convention. This was so even though the Swiss Federal Court had not explicitly referred to the provisions of the Convention and had only had a limited power of review, being confined to the question whether the award under appeal had been compatible with substantive public policy. It followed that the Court had jurisdiction ratione personae and loci to examine the present application.
Conclusion: preliminary objection dismissed (incompatibility ratione personae and ratione loci).
Article 14 taken together with Article 8:
(1) Applicability – The applicant submitted that the contested regulations had impaired the essence of the rights attracting the protection of Article 8, in particular, because the CAS and the Federal Court had concluded that her characteristics were “not sufficiently female” for the purposes of the sports classification. In that connection, the Court noted that an individual’s sexual characteristics fell within the scope of his or her “private life” within the meaning of Article 8. In so far as the applicant had been required to take hormone treatment in order not to be excluded from certain athletics competitions in the female category because of her increased testosterone level caused by DSD, her personal identity had been directly affected.
The notion of personal autonomy is an important principle underlying the interpretation of the guarantees provided for in Article 8. In the present case, the Federal Court had concluded that female 46 XY DSD athletes were not under an obligation to take oral contraceptives, since they could choose not to submit to this “treatment”. This conclusion nevertheless demonstrated the dilemma with which the applicant had been faced: either she took the medication, which was likely to cause her physical and mental harm, in order to decrease her testosterone level and to be able to practise her profession, or she refused to take it, with the result that she would have to renounce her right to compete in events of her choosing, and therefore to practise her profession. Given that personal autonomy was protected by Article 8 and that the choice with which the applicant had been faced had necessarily affected the rights falling within the scope of that Article – namely, on the one hand, her right to practise her profession and, on the other, her right to protection from physical and mental harm –, the facts of the present case fell within the ambit of Article 8.
Moreover, the protection of Article 8 could encompass activities of a professional nature. In the present case, the applicant had been seriously hindered in the exercise of her profession, having been prevented by the DSD Regulations from participating in the international competitions in which she had been the most successful. In so far as these regulations had their own rationale in relation to the sexual, particularly genetic, characteristics of athletes, the Court considered that the “grounds” for the adoption of the Regulations in issue came within the scope of the applicant’s private life. Furthermore, the Regulations were also likely to have major “consequences” for the enjoyment by the applicant of her right to respect for her private life, in particular, her reputation, private sphere and dignity.
Lastly, and in support of its conclusions, the Court considered it appropriate to refer to the findings in the report “Intersection of race and gender discrimination in sport” of the United Nations High Commissioner for Human Rights, in which it had been stated that certain regulations in force governing the criteria women must fulfil to participate in the female category could have adverse effects on, among others, the right to work and to the enjoyment of just and favourable conditions of work, the right to the highest attainable standard of physical and mental health, the right of everyone to be free from arbitrary interference with their privacy, and the right to respect for the dignity, bodily integrity and bodily autonomy of the person.
Conclusion: Article 14 taken together with Article 8 under its “private life” head applicable.
(2) Merits –
(a) Whether there had been a ground of discrimination prohibited by Article 14 – The applicant had mainly alleged discrimination on the ground of her sexual characteristics, in particular her increased testosterone level caused by DSD. In this regard, she could claim to be a victim of discrimination on the ground of “sex” within the meaning of Article 14, and also sexual characteristics (in particular, genetic characteristics), a notion which came within the ambit of that provision.
(b) Whether there had been a difference in treatment between persons in analogous or relevantly similar situations – The applicant had been legally identified as female at birth, she had grown up and been raised as a woman, and had always participated in competitions as a woman.
In the domestic proceedings, no adversarial debate on the question whether the applicant could be compared to persons in analogous or relevantly similar situations to her own had taken place. However, the CAS and the Federal Court had tacitly acknowledged that the situation of female athletes and that of the applicant, as an intersex athlete, were equivalent. The Court did not have sufficient evidence at its disposal at the time of its judgment to adopt a different position.
It followed that the applicant was in a comparable situation to that of other female athletes and that she had been subjected to a difference in treatment in relation to those athletes as she had been excluded from taking part in competitions as a result of the DSD Regulations.
(c) The nature of the obligation imposed on Switzerland and its margin of appreciation in the present case –
(i) Preliminary remarks – The DSD Regulations had been drafted and adopted by a Monegasque private-law association. In the absence of a measure that could be attributed to the State, the Court had to examine whether, in the context of its positive obligations under Article 14, the respondent State had been required, and if so to what extent, to protect the applicant from any discriminatory treatment arising from the adoption of the DSD Regulations, which the CAS and the Federal Court had held to be necessary, reasonable, proportionate and non-arbitrary.
The Court’s task, in particular, was to ascertain whether the applicant had had sufficient institutional and procedural safeguards available to her, in the form of a system of courts to which she could submit her complaints, in particular her complaint under Article 14, and whether those courts had delivered reasoned decisions which took account of the Court’s case-law.
The Court took account of the specific situation of the applicant, who had freely chosen a particular career in athletics implying the waiver of certain rights. Such limitations were permissible under the Convention where they were freely accepted. In the present case, contrary to the situation in Platini v. Switzerland (dec.), in order to be able to participate in World Athletics competitions the applicant had had to consent to an arbitration clause which excluded recourse to the ordinary courts. Her only option under the international sports arbitration rules had therefore been to apply to the CAS, and then to appeal to the Federal Court.
Lastly, the Court reiterated that it had repeatedly held that differences based exclusively on sex required “very weighty reasons”, “particularly serious reasons” or – in another formulation – “particularly weighty and convincing reasons” by way of justification. Similar considerations applied if a difference in treatment was based on the sexual characteristics of an individual or his or her status as an intersex person. Furthermore, where a particularly important facet of an individual’s existence or identity was at stake, the State’s discretion would be restricted.
(ii) Power of review of the CAS and the Federal Court – In Mutu and Pechstein v. Switzerland, the Court had not called into question the independence and impartiality of the CAS as a “tribunal”. In the present case, the CAS had heard representations from many experts in a hearing lasting five days, before delivering an extremely detailed decision. The CAS had carried out a thorough examination of the alleged discrimination and concluded that, while the DSD Regulations were discriminatory, they were a necessary, reasonable and proportionate means of achieving the aims of the IAAF, in particular to ensure fair competition. Although the CAS had applied relatively similar criteria to those which the Court itself would take into consideration under Article 14 (necessity, reasonableness and proportionality), it had not referred in its analysis to either that provision or the case-law of the Court.
As to the Federal Court, its power of review was limited to the question whether the award under appeal was incompatible with substantive public policy within the meaning of the law. In accordance with its practice, this was the case if the award undermined essential and broadly recognised values which, according to the concepts prevailing in Switzerland, should underpin every legal system. Incompatibility of the award with substantive public policy was a notion that was even more restrictive than that of arbitrariness. Owing to this restrictive approach, the Federal Court had had a very limited power of review in the present case.
While this very limited review might be justifiable in the area of commercial arbitration, in which companies which were generally on an equal footing voluntarily submitted to having their disputes settled in that way, it could be more problematic in the area of sports arbitration, in which individuals came up against often very powerful sports organisations. Accordingly, the Court saw no reason why athletes should be afforded a lesser legal protection than that afforded to people practising a more conventional profession.
(iii) Scientific uncertainty as to the justification for the DSD Regulations – The CAS had expressed serious concerns about the DSD Regulations: the side-effects of the hormone treatment were “significant”; even if female athletes carefully followed the prescribed hormone treatment, they might still be unable to remain in compliance with the DSD Regulations; and the evidence that 46 XY DSD athletes had any actual significant athletic advantage in the 1,500 m and 1 mile races was “sparse”.
These serious concerns had not led to the CAS suspending the regulations in issue, as it had done in a previous case. In this connection, even the DSD Regulations themselves provided that the athlete should be given the benefit of the doubt. The Federal Court had not sought to address the doubts expressed by the CAS. On the other hand, the Court noted that recent reports of the Parliamentary Assembly of the Council of Europe and the Office of the High Commissioner for Human Rights, in particular, had mentioned serious concerns about discrimination against women in the sports domain, including intersex athletes, based on regulations such as those in issue in the present case. These statements had been confirmed in the observations submitted by certain third-party interveners in the present case, and also by recent scientific research.
It followed that neither the CAS nor the Federal Court had carried out a thorough examination, in the light of the Convention, of the grounds relied on in support of the objective and reasonable justification for the DSD Regulations.
(iv) Weighing-up of interests and the account taken of the side-effects caused by the compulsory medication – The Federal Court had, in essence, simply endorsed, on the basis of the very restrictive notion of substantive public policy, the findings of the CAS, without carrying out its own assessment of the issues in question. In particular, it had not carried out a thorough and sufficient examination of the complaint of discriminatory treatment, nor an appropriate and adequate weighing-up of all the interests at stake, as required by the Convention. This had been because, according to its case-law, such an examination did not fall within the notion of substantive public policy.
The Federal Court had proceeded on the assumption that the DSD Regulations had afforded the applicant a real “choice”, pointing out that female 46 XY DSD athletes were not under an obligation to take oral contraceptives, since they could choose not to submit to this “treatment”. However, the Court was of the view that the applicant had had no real choice: either she took the medication and was able to practise her profession, or she refused to take it, and had to renounce her right to practise her profession. Whatever she decided, her choice would necessarily lead to the waiving of certain rights protected by Article 8. In order to satisfy the requirements of the Convention, the Federal Court should have addressed the dilemma with which the applicant had been faced. The Federal Court had not sufficiently taken into account the argument regarding the side-effects of taking oral contraceptives, despite making reference to the finding in the CAS award that the side-effects were “significant”. It had acknowledged that administering medical treatment to an individual against their will amounted to a “serious breach” of personal liberty and struck at the core of the dignity of the person concerned. At the same time, it had endorsed the opinion of the CAS that the side-effects in question, by their very nature, were no different from those experienced by the thousands, if not millions of other women with XX chromosomes who took oral contraceptives. The Court was not convinced by this argument, which had not taken into account the point that, precisely because of the side-effects associated with a hormone treatment, many women did not take oral contraceptives, and that the side-effects experienced by women who practised sport, but not at competition level, could have an even greater impact on the body and physical and mental well-being of a female athlete at the highest level and, accordingly, negatively affect her sporting performance.
Lastly, certain third-party interveners had pointed out that imposing a treatment with significant side-effects, not on strict medical grounds but in order to be in compliance with eligibility criteria set out in the DSD Regulations, was not compatible with international medical ethical standards. Switzerland was a State Party to the Oviedo Convention, the first binding international instrument designed to preserve human dignity, rights and freedoms, through a series of principles and prohibitions against the misuse of biological and medical advances. Article 2 of that Convention provided for the principle of the primacy of the human being “over the sole interest of society or science”. Other ethical principles also arose from this instrument, such as benevolence and non-maleficence.
For its examination to have been compatible with the requirements of the Convention, the Federal Court should have carried out a more thorough examination, in particular with regard to the argument concerning the side-effects of the medication.
(v) Horizontal effect of the discrimination – It could be inferred from the Court’s case-law that the domestic courts were required to ensure real and effective protection against discrimination committed by individuals. However, in the present case the Federal Court had not considered that discrimination committed by private-law entities fell within the scope of the notion of substantive public policy within the meaning of the law. As such, it had not carried out the review of the compatibility of the DSD Regulations with the Constitution or the Convention that the applicant had requested. It followed that the Federal Court had not satisfied the requirements set out in the Court’s case-law.
(v) Comparison with the situation of transgender athletes – The applicant had submitted that the respondent State and World Athletics had erred in comparing her situation with that of transgender athletes, since the weighing-up of interests to be performed in those two cases was very different. In this connection, the Court noted that the content of the World Athletics regulations pertaining to female transgender athletes and intersex athletes had been essentially the same at the relevant time.
It was not clear to the Court why the applicant and transgender athletes who had undergone a male-to-female transition had been treated equally. Without wishing to prejudge cases that could be brought before it, the Court simply noted that, in the case of female transgender athletes, the advantage they possessed stemmed from the inequality inherent in them having been born male. It arose from their initial biological make-up, and so the treatment they were asked to undergo in order to decrease their testosterone level was simply an adjustment of the treatment they were already undergoing. Moreover, in a decision which had taken effect on 31 March 2023, World Athletics had put an end to the equal treatment of transgender athletes and those athletes coming under the scope of the DSD Regulations.
The Court found that the Federal Court, even in the context of its limited examination, should have addressed this lack of differentiation.
(vii) Conclusions – The respondent State had overstepped the narrow margin of appreciation afforded to it in the present case. The high stakes of the case for the applicant and the narrow margin of appreciation afforded to the respondent State should have led to a thorough institutional and procedural review, but such a review had not been available to the applicant in the present case. As a result, the Court was unable to find that the application of the DSD Regulations to the applicant’s case could be considered a measure that was objective and proportionate to the aim pursued.
Conclusion: violation (four votes to three).
Article 13 in relation to Article 14 taken together with Article 8:
The Court also found a violation of the right to an effective remedy within the meaning of Article 13 of the Convention for essentially the same reasons which had led it to find a violation of Article 14 taken together with Article 8, namely the lack of sufficient institutional and procedural safeguards in Switzerland. Like the CAS before it, the Federal Court, owing in particular to its very limited power of review, had not responded in an effective manner to the applicant’s substantiated and credible complaints of, among other things, discrimination. Taken as a whole and in the particular circumstances of the present case, the domestic remedies available to the applicant could not be considered effective within the meaning of Article 13.
Conclusion: violation (four votes to three).
(See also Mutu and Pechstein v. Switzerland, 40575/10 and 67474/10, 2 October 2018, Legal summary; Platini v. Switzerland (dec.), 526/18, 11 March 2020, Legal summary ; and also Report “Intersection of race and gender discrimination in sport” (A/HRC/44/26) of the United Nations High Commissioner for Human Rights of 15 June 2020; Resolution 2465 (2022) “The fight for a level playing field – Ending discrimination against women in the world of sport” of the Parliamentary Assembly of the Council of Europe of 13 October 2022; Report of the Committee on Equality and Non-Discrimination of 22 September 2022 relating to Resolution 2465 (2022) “The fight for a level playing field – Ending discrimination against women in the world of sport” of the Parliamentary Assembly of the Council of Europe of 13 October 2022)
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This summary by the Registry does not bind the Court.
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