SA Rights Body Files To Join Semenya Gender Trial

A South African rights body wants to be an intervener in top athlete Caster Semenya’s challenge to rules forcing her to reduce her testosterone levels to be allowed to compete in women’s races.

The South African Human Rights Commission on Friday said it had filed its submission as Third Party Intervener before the European Court of Human Rights in the matter of Semenya v Switzerland.

The commission said this was the first time the rights body was involved in human rights litigation in an international forum, and its submission thus marks a significant milestone in this important matter regarding gender equality.

Caster Semenya is an international athlete specialising in middle-distance races (800 to 3 000m).

Semenya won the gold medal in the women’s 800m at the Olympic Games in London (2012) and Rio (2016) and is also a three-time world champion in the discipline.

Semenya lodged an application with the ECtHR on 18 February 2021, in terms of which she challenged regulations issued by the International Association of Athletics Federations (IAAF).

The regulations require her to lower her natural testosterone levels through hormone treatment to be eligible to compete as a woman in international sporting events.

Semenya’s challenge is grounded in various rights enshrined in the European Convention on Human Rights (ECHR).

The commission said it successfully sought leave to intervene in the matter to “elucidate the adverse impacts of the IAAF’s Differences of Sex Development (DSD) regulations on women from the Global South”.

The commission said its submission does not purport to comment on the merits of the matter, and instead aims to demonstrate the discriminatory effect of the regulations on the intersecting grounds of race and gender.

As an independent intervenor (comparable to a friend of the Court), the SAHRC seeks to illustrate “how the impugned regulations breach Article 14 (prohibition of discrimination) in conjunction with Article 8 (right to respect for private and family life) and/or Article 3 (prohibition of torture) of the ECHR”.

The commission said it further seeks to demonstrate that intersectional discrimination has a unique and synergistic discriminatory effect on women from the Global South.

The matter raises complex issues regarding the relation of dignity to the right to equality and non-discrimination as well as to other ECHR rights.

It also puts the spotlight on the appropriate approach in respect of intersectional discrimination.

Questions also arise about how the justificatory analysis should be framed in such instances of intersectional discrimination on the grounds of race, gender, gender identity, and expression.

The commission said it sought to achieve its aims regarding the rich normative jurisprudence of the South African Constitutional Court.

In the light of the complexity of the human rights issues raised, the commission said it has requested to make oral submissions if the ECtHR grants a hearing in this case.

The SAHRC is represented by a formidable legal team, comprising of Jeremy Gauntlett SC QC, Emma Mockford, Jennifer MacLeod and Zahra al-Rikabi from Brick Court Chambers, London, Advocate Frank Pelser and instructed by Baker McKenzie under the leadership of Lerisha Naidu with the assistance of Keketso Kgomosotho.

The commission said it has solicited the expert advice of an ad hoc committee composed of Prof Sandra Fredman (Oxford) and Dr. Meghan Campbell (Birmingham), representing the Oxford Human Rights Hub, and joined by Alexandra Mia (previously a staff member of the Commission).

“The commission extends its sincere gratitude to the excellent legal team, expert committee and its own staff for their tireless work in reaching this important milestone in the Commission’s endeavor to promote equality and help eliminate discrimination in its various guises,” said the rights body.