CASTER’S RACE AGAINST TIME
Athlete set to lose Olympic 800m title
● Caster Semenya is set to lose the Olympic 800m crown she has held since 2012, even if the European Court of Human Rights agrees to hear her case as a priority matter.
Her legal team has said there is no chance the case can be concluded before the first round of the women’s 800m race gets under way at the Tokyo Games on July 30.
The 30-year-old, who retained her title at Rio 2016, has lodged an application at the court in Strasbourg, France, and is now waiting for the court president to list it, or not.
It is possible that it might be finished in time for the 2022 world championships in Eugene, Oregon, from July 15-24 next year.
“It could be,” said Norton Rose Fulbright lawyer Patrick Bracher. “We’ve made out a case [for a priority listing] based on Caster’s career coming to an end. [But] it won’t happen before [the Olympics].
“If it’s not a priority listing, then it can be years before you get a hearing ... We’re very optimistic that it will be listed because it deals with issues in the broader context of international sport which haven’t often been addressed by this court.”
If, or when, her application is accepted, it will officially be listed as Mokgadi Caster Semenya versus Switzerland.
This would be Semenya’s third legal battle to overturn World Athletics’ regulations that require female athletes with differences of sexual development (DSD) to suppress naturally high levels of testosterone, either by medication or surgery, if they want to run internationally from 400m to a mile.
Semenya took suppressants from 2011 until 2015 when the previous regulations were deemed unlawful.
The new regulations came into effect in 2019. She lost at the Court of Arbitration for Sport (CAS) and again at the Swiss federal court, the country’s highest judicial institution, which means the nation as a whole gets summoned. “I’ve never sued a country before,” said Bracher.
“We don’t feel we’ve had a fair grab at human rights up to now,” he said. “We put in a lot of evidence ... about human rights issues from all over the world. The CAS said it wasn’t their function to look at what they labelled broader social issues, which meant international human rights.”
The Swiss court wasn’t much better. Semenya’s new case is based on the European convention for human rights.
Article 14 prohibits discrimination, and the key will be showing the regulations discriminate against Semenya and women with higher testosterone unfairly. “They are women with a genetic variation and it’s no differ
We don’t feel we’ve had a fair grab at human rights
Patrick Bracher Lawyer
ent from any other genetic variation,” said Bracher. “Usain Bolt has a genetic advantage, Michael Phelps has a genetic advantage.”
Article eight deals with the right to respect for private life, which refers to invasive gender testing and examinations.
Article three outlaws degrading treatment, which Semenya will argue is what the World Athletics regulations are.
“You can stop running internationally or you can take testosterone-suppressing drugs which has never been tested on people who don’t need it and the evidence was from Caster that it affected her badly, or you can submit to surgery which is totally life-changing and we have seen interviews with people ... who are not able to run,” said Bracher.
Another element in Semenya’s favour is that the court permits interveners, which means the human-rights and medical groups that have already backed her could make submissions to back her case.