Switzerland’s top court ruled against two-time Olympic champion Caster Semenya on Tuesday, dismissing her appeal of a 2019 ruling by the Court of Arbitration for Sport that upheld a rule established by IAAF, track and field’s governing body, affecting female runners who produce testosterone at levels higher than other women.
The ruling probably ends Semenya’s chance of defending her 2016 Olympic gold medal in the 800 meters because she has repeatedly said she would not submit to the IAAF rule.
“I am very disappointed by this ruling, but refuse to let World Athletics drug me or stop me from being who I am,” Semenya said in a statement released by her representatives. “Excluding female athletes or endangering our health solely because of our natural abilities puts World Athletics on the wrong side of history. I will continue to fight for the human rights of female athletes, both on the track and off the track, until we can all run free the way we were born. I know what is right and will do all I can to protect basic human rights, for young girls everywhere.”
Semenya is a female competitor who is believed to have an intersex condition that causes her body to naturally produce testosterone at levels much higher than most women, and IAAF ruled that it gave her and other women with her condition an unfair advantage over other female competitors. The governing body instituted a new rule that required female athletes who wanted to run in only the 400-, 800- and 1,500-meter events — Semenya’s primary race distances — to lower their testosterone levels below a certain metric and maintain that reduced level continuously for at least six months before a competition.
The 2019 CAS ruling, agreed upon by two of three arbitrators after five days of testimony from experts in ethics, genetics, gynecology and andrology, among other fields, rejected Semenya’s appeal of the IAAF rule. CAS agreed the rule was discriminatory in nature, “but the majority of the Panel found that, on the basis of the evidence submitted by the parties, such discrimination is a necessary, reasonable and proportionate means of achieving the IAAF’s aim of preserving the integrity of female athletics,” the court said in its executive summary.
On Tuesday, the Swiss Federal Tribunal ruled CAS “had the right to uphold the conditions of participation issued for female athletes with the genetic variant ‘46 XY DSD’ in order to guarantee fair competition for certain running disciplines in female athletics.”
Semenya’s legal representatives said the IAAF rule is overly invasive to the South African runner because it requires her to submit to unneeded medical procedures to compete.
“The Swiss Court dismissed the appeal despite finding that the World Athletics regulations seriously violate Caster’s physical integrity because the required hormonal drug intervention is not medically indicated, has negative health effects and is not based on the athlete’s free consent,” the statement from the Norton Rose Fulbright law firm read.
In a statement, World Athletics said it welcomed the ruling.
“Throughout this long battle, World Athletics has always maintained that its regulations are lawful and legitimate, and that they represent a fair, necessary and proportionate means of ensuring the rights of all female athletes to participate on fair and equal terms,” it added. “It has rejected the suggestion that they infringe any athlete’s human rights, including the right to dignity and the right to bodily integrity. We are very pleased that the highest court in Switzerland has now joined with the highest court in sport in endorsing World Athletics’ arguments.”
Semenya, who won gold in the 800 meters at both the 2012 and 2016 Olympics and also has three world championships in the event, has refused to submit to procedures that would lower her testosterone. In March, she announced she would be switching to the 200 meters to circumvent the IAAF rule and compete at the Tokyo Olympics, which were postponed to 2021 by the novel coronavirus pandemic.
According to the IAAF website, Semenya’s personal-best time in the 200 meters is 23.81 seconds, about a second slower than the Olympic qualifying standard.