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Tuesday, August 1, 2023
Human Rights Court Rules for Athlete, Citing Yale Global Health Justice Partnership Brief
The Yale Global Health Justice Partnership (GHJP) is welcoming a recent decision of the European Court of Human Rights, which ruled in favor of champion runner Caster Semenya in her challenge of track and field rules requiring her to medically reduce her natural hormone levels to compete in certain events.
In ruling that Switzerland had not afforded Semenya with avenues to have her complaints of discrimination effectively reviewed, the court cited an amicus brief jointly submitted by the GHJP and the World Medical Association (WMA) that focused on the impact of the regulations on medical ethics and rights.
Semenya, a two-time Olympic champion from South Africa, applied to the European court following her unsuccessful challenge of World Athletics’ regulations on eligibility for certain track events in the Court of Arbitration for Sport (CAS). The regulations required Semenya to either submit to medically unnecessary hormone treatment with poorly understood side effects to lower her naturally occurring higher testosterone levels, or not compete in the female category in her best distance. Semenya refused to undergo these potentially harmful medical interventions. After the CAS dismissed her application, she appealed to the Federal Supreme Court of Switzerland, the only venue that can hear appeals from CAS. The Swiss court also dismissed her case.
In Semenya v. Switzerland, the European Court of Human Rights ruled, in part, that Switzerland failed to meet its obligations under the European Convention toward Semenya’s rights to non-discrimination and respect for private life, as well as to an effective remedy. In the July 2023 ruling, the court recognized the importance of effective processes to protect the human rights of elite athletes. In this case, the court found, Switzerland had not afforded sufficient institutional and procedural safeguards in its tribunal to allow her claims of discrimination to be effectively examined.
The World Medical Association (WMA) and the GHJP argued in their brief that World Athletics regulations confront women athletes with naturally occurring higher testosterone levels with a coerced “choice”: undergo unnecessary medical interventions with serious side effects, or give up their profession and livelihood. The brief raises issues with doctors participating in these interventions, conducted not for therapeutic reasons but solely for compliance with sports eligibility rules. According to the brief, doctors’ participation creates a dynamic of dual loyalty that threatens the patient-physician relationship and medical ethics principles of respect for autonomy, beneficence, non-maleficence, and justice. WMA and GHJP argued that the regulations’ potential for putting physicians in violation of their ethical duties also has serious implications for the human rights of athletes.
In its decision, the court noted the failure of the Federal Supreme Court of Switzerland to consider, among other factors, that the regulations presented an illusionary “choice” regarding medical intervention for affected athletes and that such a constrained intervention carried significant side effects. Citing the amicus brief by the WMA and GHJP, the European Court of Human Rights observed that requiring interventions is not compatible with international standards of medical ethics.
Importantly, the court notes that these effects on medical ethics and rights constituted a key part of the relevant factors that meant that the Swiss court should have conducted a thorough review as part of their obligations under the European Convention in regard to Semenya’s appeal to Swiss courts. The court reiterated that “very weighty reasons” must be produced to justify any discrimination on the grounds of sex and sexual characteristics, especially as the Swiss court’s upholding of discrimination placed Semenya’s ability to practice her profession in international athletics competitions in peril.
However, the court’s ruling does not overturn the eligibility rules set by World Athletics, which has said that the regulations would stay in place. That means that Semenya and other women athletes with naturally-occurring high testosterone will still not be allowed to run in major world competitions.
WMA and GHJP noted that the human rights court’s recent decision affirms both the global consensus on the central role of medical ethics and their links to rights protection and the importance of effective and accessible processes protecting the human rights of global athletes. The two said that while they welcome the decision, they remain concerned that the World Athletics eligibility regulations remain in force. Under these regulations, WMA and GHJP continued, medical professionals still confront ethical challenges and Semenya and many others like her are still unable to compete, in violation of their fundamental rights.