THIRD SECTION
CASE OF SEMENYA v. SWITZERLAND
(Application no. 10934/21)
 
JUDGMENT
 
Art 14 (+ Art 8) • Private life • Lack of sufficient institutional and procedural safeguards in respect of discrimination against professional athlete with differences of sex development (DSD) required under non-State regulations to lower her natural testosterone level to be allowed to compete in women’s category in international competitions • Art 14 (+ Art 8) applicable • Applicant in comparable situation to other female athletes and treated differently as excluded from competitions by DSD Regulations • Compulsory arbitration under sports regulations with no access to ordinary courts • Court of Arbitration for Sport (CAS), despite its very detailed reasoning, did not apply Convention provisions and left open serious questions as to validity of DSD Regulations • Review by Federal Supreme Court very limited, confined to question whether CAS arbitral award was compatible with public policy • No thorough and sufficient examination of complaint of discriminatory treatment and no appropriate and adequate weighing-up of all interests at stake • Lack of differentiation between transgender and intersex athletes not addressed by Federal Supreme Court • Discrimination on grounds of sex and sex characteristics requiring “weighty reasons” by way of justification • High stakes for applicant: right to practise her profession • Narrow margin of appreciation overstepped • Measure neither objective nor proportionate to aim pursued. Art 13 + (Art 14 + 8) • Ineffective remedies • Lack of sufficient institutional and procedural safeguards • Effective response not provided by Federal Supreme Court to applicant’s substantiated and credible complaints of discrimination, owing in particular to its very limited power of review. STRASBOURG
11 July 2023
 
THIS CASE WAS REFERRED TO THE GRAND CHAMBER WHICH DELIVERED JUDGMENT IN THE CASE ON 10/07/2025
 
This judgment may be subject to editorial revision. Table of Contents
INTRODUCTION
THE FACTS
I. BACKGROUND TO THE CASE
II. CAS AWARD OF 30 APRIL 2019
III. PROCEEDINGS IN THE FEDERAL SUPREME COURT AND ITS JUDGMENT OF 25 AUGUST 2020
RELEVANT DOMESTIC AND INTERNATIONAL LEGAL FRAMEWORK AND PRACTICE
I. DOMESTIC LAW
II. DOMESTIC PRACTICE
III. INTERNATIONAL LAW AND PRACTICE
A. Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine (“the Oviedo Convention”)
B. Work of the Commissioner for Human Rights of the Council of Europe on human rights and intersex people
C. Resolution and report of the Parliamentary Assembly on the fight for a level playing field – ending discrimination against women in the world of sport
D. Report of the United Nations High Commissioner for Human Rights, “Intersection of race and gender discrimination in sport”
E. Relevant World Athletics regulations
1. Eligibility Regulations for the Female Classification (Athletes with Differences of Sex Development) – “the DSD Regulations”
2. Eligibility Regulations for Transgender Athletes (2019)
F. Relevant CAS or domestic court cases
1. The Dutee Chand case (CAS)
2. The Renée Richards case (New York County Court, United States of America, 16 August 1977)
THE LAW
I. PRELIMINARY OBSERVATIONS ON THE SCOPE OF THE CASE AND THE COURT’S APPROACH
II. THE GOVERNMENT’S PRELIMINARY OBJECTION THAT THE COURT LACKS JURISDICTION RATIONE PERSONAE AND RATIONE LOCI
A. The parties’ submissions
1. The Government
2. The applicant
B. The Court’s assessment
1. Applicable principles
2. Application of those principles to the instant case
3. Conclusion
III. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION IN CONJUNCTION WITH ARTICLE 8
A. Admissibility
1. Applicability of Article 14 in conjunction with Article 8
(a) General principles
(b) Rights capable of being engaged in the present case
2. Conclusion as to admissibility
B. Merits
1. The parties’ submissions
(a) The applicant
(b) The Government
(c) Third-party interveners
2. The Court’s assessment
(a) General principles
(b) Application of these principles to the present case
(i) Whether there was a ground of discrimination prohibited by Article 14
(ii) Whether there has been a difference in treatment between persons in analogous or relevantly similar situations
(iii) The nature of the obligation imposed on Switzerland and its margin of appreciation in the present case
(α) Preliminary remarks
(β) Power of review of the CAS and the Federal Supreme Court
(γ) Scientific uncertainty as to the justification for the DSD Regulations
(δ) Weighing-up of interests and account taken of side effects caused by compulsory medication
(ε) Horizontal effect of the discrimination
(στ) Comparison with the situation of transgender 
athletes
(ζ) Conclusions
IV. ALLEGED VIOLATION OF ARTICLE 8 OF THE 
CONVENTION
V. ALLEGED VIOLATION OF ARTICLE 3 OF THE 
CONVENTION
Admissibility
1. Submissions of the parties and the third-party interveners
2. The Court’s assessment
(a) General principles
(b) Application of the above principles
VI. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
A. Admissibility
1. The parties’ submissions
2. The Court’s assessment
B. Merits
1. The parties’ submissions
(a) The applicant
(b) The Government
2. The Court’s assessment
(a) General principles
(b) Application of the above principles
VII. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

Article of the Convention at issue: Article 14
Outcome: violation