Semenya v. Switzerland (European Court of Human Rights), No. 10934/21, July 11 2023

Abstract

The issue of how to accommodate non-binary athletes in female sport whilst maintaining a sense of fair competition is something that many sports have struggled with in recent years. Whilst there has been debate about ethical and scientific justifications for imposing eligibility restrictions on athletes with sex variations, the potential impact of human rights norms on the policies of sport governing bodies in this area has received only peripheral attention. However, the recent decision of the European Court of Human Rights in Semenya v Switzerland, seems to have changed that narrative. In accepting jurisdiction and then finding Switzerland had failed to adequately protect Miss Semenya in relation to human rights concerns over eligibility restrictions imposed by World Athletics, the relevance and importance of substantive human rights in sport has been recognised, at least within a European context. This article reviews the most important aspects of the Court’s decision and argues that the consequences of the judgment are potentially far more significant than one set of eligibility restrictions in Athletics. In particular, the judg-ment would seem to lay down significant limits to the cherished ideal of sporting autonomy and, also, demand more rationally transparent decision making by sport governing bodies and those arbitrating on disputes in sport that involve human rights concerns.