The recent decision in the case of Caster Semenya is hardly the first instance where the Court was forced to face the music regarding its inherent aversion to explicitly challenging perceived ideas about the gender binary. The Court’s view of gender has always been problematic, confusing sex with gender, pathologising trans bodies, and only accepting a binary view of gender. However, it is also possible to see a gradual albeit slow understanding of this issue in the Court’s case law regarding trans and intersex people. It should be noted that even though these two groups differ greatly, their lived experiences overlap.
It was not uncommon to come across outdated and problematic terminology such as “transsexual”, or the constant pathologisation of the trans experience especially in the earlier decisions of the Court. It was not until the renowned Goodwin decision that the Court recognised the challenges faced by trans people and the responsibility of States to protect the enjoyment of their rights. Intersex people, on the other hand, have not been a topic of discussion before the Strasbourg court over the years, with two cases being found inadmissible. Caster Semenya’s case is an important win for the community in this regard, although the Court approached the issue from a more procedural point. It is further a good decision to analyse from an intersectional standpoint.
Semenya argued before the Court that the Eligibility Regulations for the Female Classification (Athletes with Differences of Sex Development), or the so-called “DSD Regulations” adopted by World Athletics (formerly known as International Association of Athletics Federations, or IAAF) were discriminatory, especially based on her status as an intersex person. The DSD Regulations entail that any athlete whose levels of circulating testosterone (in serum) are five (5) nmol/L or above must, in order to be eligible to compete in Restricted Events in an International Competition, reduce their blood testosterone level to below five (5) nmol/L continuously by use of hormonal contraceptives. For athletes who have a naturally produced higher level of testosterone, especially for intersex persons, these regulations pose as limitations and discriminatory treatment. For these reasons, Caster Semenya claimed that she was subjected to unequal and less favourable treatment compared to other athletes. She argued that, on one hand, she was discriminated against other female athletes who were not required to undergo such tests and treatments, and on the other, compared to male athletes as these eligibility conditions do not apply to ones with higher testosterone levels, nor are they subjected to them in order to determine their “biological sex” or a so-called “sports sex”. She further alleged that the DSD Regulations disproportionately target athletes from the Global South, and therefore a question of discrimination based on race and ethnicity should also be considered (Semenya, §129). Another point raised by Semenya is the DSD Regulations being in breach of Article 3 of the European Convention of Human Rights, which concerns inhumane and degrading treatment, on the grounds of these Regulations infringing her physical integrity as they require her to submit her body, in particular her genitals, to examinations which are not medically necessary. Moreover, this situation caused by the Regulations severely stigmatize her and humiliate her dignity (Semenya, §206).
The Court, while accepting that Semenya’s rights under article 8 have been infringed upon in conjunction with the discrimination clause, failed to consider a number of other issues raised by her. First, the Court only made a comparison vis-à-vis women athletes and not male athletes (Semenya, §159) and further cast away the allegations about these Regulations disproportionately affecting Black athletes (Semenya, §159). Moreover, the Court found Semenya’s allegations of inhuman and degrading treatment “manifestly ill-founded” (Semenya, §217).
It is clear that the Court rejecting these claims shows a lack of intersectional viewpoint on its part. First, it could have been an important comparison point if it considered Semenya’s arguments about male athletes not being subjected to such “femininity check” tests. Not only does the seemingly random selection procedure only target women who do not fit into the stereotypical femininity standards, but the fact that higher or lower levels of testosterone is not a point of discussion for male athletes further proves that DSD Requirements are arbitrary at best. There is no concrete evidence of testosterone being a predictor for athletic performance, and the so-called scientific results that the Court of Arbitration for Sport (CAS) depended on is actually both funded and conducted by World Athletics in support of its own Regulations, a clear exercise of ‘opportunistic epistemology,’ an approach that formulates conclusions before searching for evidence (Winkler and Gilleri, 2021, p. 12). Other than being biased, the research conducted is full of errors and ghost data, and when replicated by a team of independent researchers, shows no causal link whatsoever between performance and testosterone levels (Pielke, Tucker and Boye, 2019, pp. 18–26). It is evident, therefore, that the inherent stereotypical notion of masculinity is disguised as science in the arguments put forth.
Another important aspect the Court failed to consider is the intersection of Semenya being Black and an intersex woman. DSD Regulations, as also alleged by Semenya, overwhelmingly target athletes from the Global South, and therefore the Court should have taken into account the ethnic and racial implications of the situation at hand, drawing a picture for Semenya as an LGBTI+ woman of colour. The history of racial discrimination goes a long way back, and even though there are now procedural and legal mechanisms in place for equality, non-discrimination, and equal opportunity, the long-standing racial prejudices about Black bodies persist. And when that body belongs to a Black woman, the place of colonial and gender-essentialist myths are much more evident. Black women are implicitly masculinized because of their skin colour, and as a subsection, Black women athletes are met with anger and discrimination because of their muscles and physical prowess.
One other interesting aspect of the Court’s decision was the comparison with trans people in sports. The Court cites questionable sources (Semenya, §69, §198) and asserts that a trans woman, her assigned gender at birth being male, enjoys an advantage compared to cis women. This assertion alone perpetuates harmful assumptions, with no scientific basis, and purports negative stereotypes regarding transgender persons. It is further harmful to both communities that trans people and intersex people are often regarded as one group, even though the Court makes a distinction between the two communities. Still, the manner in which the Court mentioned trans athletes in this judgment indicates that it continues to stigmatise and pathologise trans bodies, and further shows that the Court’s understanding of gender is still heavily dependent on biological sex and sex characteristics.
Perhaps the most striking decision of the Court is disregarding Semenya’s claims of inhuman and degrading treatment as it believed Semenya’s situation did not amount to the minimum severity required as outlined by the Court’s previous case law (Semenya, §213). However, as feminist legal theorists have pointed out, integrating women’s experiences into the legal decision making process and placing the marginalisation and the challenges one faces at the centre is of crucial importance when we talk about a feminist perspective in the judiciary (Evola, Krstić and Rabadán, 2023, pp. 169-170). In this case, Semenya has constantly been the subject of scrutiny and speculation regarding her anatomy; she has; been misgendered and was faced with swarm of harassment from the press, online, and even from her fellow athletes. Further, the medical “treatments” foreseen by the Regulations pose health risks and severely undermine Semenya’s dignity by stigmatising her existence. Even the Court itself accepted that Semenya either submitting to medical treatments that will likely harm her physical integrity to be able to practice her profession, or having to give up participating in competitions altogether is not a real choice presented to her. Further, such treatment procedures would undoubtedly cause the athletes concerned feelings of anxiety and even inferiority, and put them under psychological distress, affecting their professional lives (Semenya, §212). While the majority refused to acknowledge this aspect, Judge Serghides, in his partly concurring opinion, argued for there being a violation of Article 3 for the above-mentioned reasons, and the Court’s failure to consider them further damages the meaning of Article 3, which is an absolute right, and may amount to treating this right as if it were a relative right (Semenya, Judge Serghides Partly Concurring Opinion, §40 and onwards). The judgement, as is, seems progressive on the surface, but is actually one full of inconsideration.
In conclusion, while claiming to protect the rights of women, such internalised views regarding trans and intersex persons as the Court demonstrated in this case, actually continue the trend of governing women’s bodies and subjecting them to arbitrary and subjective standards of femininity. At the time of this blog post, Semenya’s case is currently waiting before the Grand Chamber, and therefore the opportunity for the Strasbourg court to review and expand its perspective regarding the issues discussed is still present. However, if one thing is for certain, it is that the only way to advance the enjoyment of rights for all marginalised groups is for the Court to gain an intersectional perspective in adjudication.