Hormonal Eligibility Criteria in Women’s Professional Sports Under the ECHR: The Case of Caster Semenya v. Switzerland

Abstract

AbstractAlthough society is (slowly) evolving, rigid gender stereotypes still persist in the world of professional sports. In line with the creation of a strict binary division of athletes, sex-testing policies based on stereotypical considerations of womanhood have come to target ‘overly masculine’ women athletes with variations of sex characteristics (VSC), as elevated levels of testosterone are believed to constitute a competitive advantage.Some international sports federations, such as World Athletics, have adopted hormonal eligibility criteria (HEC) for women’s sports competitions, although the underlying scientific evidence has been strongly contested. Athletes are excluded if they do not comply with these requirements. The standard way of reducing testosterone levels is via the use of hormonal contraceptives, although irreversible surgical treatment also occurs. HEC for sports competitions raises important issues in respect of the fundamental rights of professional women athletes with VSC, and have been challenged before the Court of Arbitration for Sports (CAS).In this chapter, we analyze the HEC set by World Athletics in light of the European Convention on Human Rights (ECHR), which is the relevant framework for addressing human rights concerns since Switzerland accepts jurisdiction for appeals against CAS decisions. We discuss the relevant societal background, argue how HEC for sports competitions violates the individual’s right to bodily and mental integrity as protected by Article 3 ECHR, and explain that the scope of the state’s positive obligations under Article 8 ECHR needs to be interpreted as encompassing a duty to ensure the effective protection of an athlete’s bodily and psychological integrity. Finally, we set out why HEC directed at women athletes with VSC amounts to intersectional discrimination in breach of Article 14 ECHR in conjunction with Articles 3 and 8 ECHR.