Caster Semenya loses Swiss Supreme Court appeal

Double Olympic champion says she will "continue to fight for the human rights of female athletes" after latest legal defeat following CAS decision to uphold World Athletics' DSD regulations.

By Olympic Channel

Caster Semenya has lost her appeal to the Swiss Federal Tribunal suffering another setback in her bid to have her ban from the 800m overturned.

Her lawyers Norton Rose Fulbright released a statement on Tuesday (8 September) saying the Federal Supreme Court of Switzerland had refused to set aside the Court of Arbitration for Sport (CAS) ruling that female athletes with high natural testosterone levels must take medication to reduce it.

Norton Rose Fulbright said, "The Swiss Supreme Court found that World Athletics’ requirement of subjecting certain female athletes to drug or surgical interventions as a precondition to compete in women’s 400m to 1500m events does not amount to a violation of Swiss public policy."

Semenya said, "I am very disappointed by this ruling, but refuse to let World Athletics drug me or stop me from being who I am. 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.” - Caster Semenya

World Athletics welcomed the ruling in a press release saying, "As the Swiss Federal Tribunal recognised, the DSD Regulations are not about challenging an individual’s gender identity, but rather about protecting fair competition for all female athletes.

"The Swiss Federal Tribunal confirmed that ‘It is above all up to the sports federations to determine to what extent a particular physical advantage is likely to distort competition and, if necessary, to introduce legally admissible eligibility rules to remedy this state of affairs.’

"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.

"World Athletics remains committed to applying the regulations carefully and sensitively to ensure that 46XY DSD athletes who wish to compete in the female category are able to do so safely and fairly."

Athletics South Africa (ASA) described the Swiss Supreme Court ruling as "sad" but will continue its "pursuit for justice".

In a press statement, they said, "ASA had been confident of a favourable outcome before the Swiss Federal Supreme Court given the human rights, medico-legal and scientific arguments and evidence that we believe invalidated the regulations. It is these facts that have left ASA shocked that the court rejected these compelling factors in favour of World Athletics.

"Given the profound and global effect plus consequences the implementation of the regulations will have, the regulations may warrant to be tested in the European Court of Human Rights to pronounce on the matter."

South African sports minister Nathi Mthethwa issued a rallying cry for people to unite behind Semenya's cause.

He said in a statement, “We call upon all South Africans, Africans and the entire world to rally behind Caster in our quest to defeat injustice against women in sport and in particular African women.”

We have resolved to do everything in our power to pursue this, even if it benefits someone else beyond Caster Semenya. For us, it's not 'game over'." - South African sports minister Nathi Mthethwa speaking to CapeTalk Radio

Semenya's long-running fight to compete

World Athletics, formerly the International Association of Athletics Federations (IAAF), brought in rules in 2018 which stated women with high natural levels of testosterone had to medically bring them down in order to compete at distances from 400m to one mile (1600m) inclusive.

Semenya was allowed to continue to run pending her appeal to CAS which was eventually rejected in April 2019.

The South African runner then appealed that decision to the Swiss Supreme Court which later reversed their original decision to let her defend her world title in Doha.

Over a year later, this appeal has been dismissed despite - in the words of Norton Rose Fulbright - "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".

Semenya ran her last 800m at last year's Prefontaine Classic and made her seasonal debut over 300m in Johannesburg but she has indicated that she would focus on the 200m, which falls outside of the regulations.

In March, she won twice over 200m in Pretoria including a personal best of 23.81s.


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