OPINION | Caster Semenya v Switzerland: A global struggle for rights of intersex and other marginalised people

On Wednesday the Grand Chamber at the European Court of Human Rights (ECHR) will hear the case of Caster Semenya v Switzerland. The South African Human Rights Commission (SAHRC) has been granted leave to intervene in the matter as a third-party intervener, or friend of the court. The case before the Grand Chamber was referred by Switzerland after the judgment handed down by the ECHR in July 2023. The judgment found in favour of Semenya, indicating that her rights, as enshrined in the European Convention for Human Rights, to non-discrimination, respect for private life, and to an effective remedy had been violated.

This case began in February 2021 when Semenya, a multiple Olympic gold medallist and World Champion, lodged an application with the ECHR challenging regulations issued by the International Association of Athletics Federations (IAAF). The contested IAAF regulations on Differences of Sex Development (DSD) required Semenya, and other intersex people with high testosterone, to lower their natural testosterone levels through hormone treatment to be eligible to compete as a woman in international sporting events. This was required by the IAAF though athletes and medical experts have suggested the hormonal treatments have a negative effect on the health, and more particularly the sexual and reproductive health of those who are subjected to it. Having refused to undergo the hormone treatment, Semenya was no longer eligible to take part in international competitions.

The SAHRC has intervened in this case as part of its ongoing campaign to protect and promote the rights of intersex people. Holding corporates accountable for human rights is also a key strategic focus of the commission. The commission seeks to bring to the court’s attention the rich body of jurisprudence in South Africa on the issue of unfair discrimination on the grounds of race, gender, sex, and sexual orientation. Broadly, the submissions made by the SAHRC focus on the discriminatory effect of the regulations on the intersecting grounds of race, sex, and gender.

The case before the Grand Chamber is highly anticipated as it impacts on the duty of international sporting bodies to respect human rights, particularly as it relates to intersex people and sports people from the Global South who compete in international events. Intersex people have remained a marginalised, and discriminated, group in the sporting world in particular, which is highly regulated based on a person’s sex and/or gender and tends to not be inclusive of intersex sports people.

An intersex person is born with a variety of sex or reproductive organ characteristics that aren’t traditionally considered within what would medically be defined as male and female sex and reproductive organs. Though they may be born intersex, the respective biological characteristics may begin to present themselves at different stages of an intersex person’s life. The impact of this is that as intersex people develop, they experience significant challenges in terms of their appearance and gender identity, and can encounter health-related challenges which, for example, for an intersex woman could include not getting her menstrual cycle at all.

Semenya’s gallant struggle and case has arguably contributed to the rights of intersex people being placed on the global agenda. For example, on April 4 2024, almost a year after the judgment handed down by the ECHR in favour of Semenya, the UN Human Rights Council issued resolution 55 on Combating Discrimination, Violence and Harmful Practices against Intersex Persons where it called on state parties to combat discrimination, violence and harmful practices against intersex people and address their root causes. This was the first time that the UNHRC issued a resolution on intersex people. Furthermore, the case itself has received a wide myriad of submissions including from the UN, Human Rights Watch, the International Commission of Jurists, Athletics South Africa and many Africa-based NGOs, among other bodies.

Semenya has recently indicated she hopes this case will inspire a new generation of girls and women who experience significant hurdles when pursuing their dreams as sports people and as professionals. The significance of this case transcends guaranteeing Semenya her right to compete in her favourite 800 metre race. This case aims at combating this pervasive discrimination and ensuring that intersex people globally enjoy their human rights. Human Rights are not selective but inherent to us all, regardless of nationality, sex, national or ethnic origin, colour, religion, language or any other status. The SAHRC remains hopeful that this case will contribute to the human rights of intersex people being further respected and protected, including the right of intersex people to pursue the sporting profession on an equal basis with other people.

* Commissioner Tshepo Madlingozi is SAHRC Commissioner responsible for Antiracism, Equality, Justice & Education focal areas.

* Allan Tumbo is the Senior Researcher for Equality at the SAHRC.