While Caster Semenya’s case at the European Court of Human Rights is taking on a “positive trend”, it won’t be concluded before the Tokyo Olympics.

Semenya’s lawyer, Greg Nott, told Independent Media on Tuesday that the overall goal is to have the matter decided before the next world championships, which take place in Oregon, United States in July 2022.

The 30-year-old double Olympic champion in the 800m is still hoping to make it to Tokyo this year, but in the 5 000m. She will try to qualify in the long-distance event on Friday again at a specially arranged meeting in Durban, where she needs to finish in 15 minutes and 10 seconds (15:10.00).

Her current personal best is 15:52.28, but that was at altitude in Pretoria, and it is hoped that running at the coast would assist in running a faster time.

Semenya is challenging World Athletics’ new rules with regards to athletes with differences in sexual development (DSD), where the governing body requires such runners to take medication and/or undergo surgery to reduce their naturally-occurring testosterone levels to below 5 nanolitres per litre of blood.

She lost her previous cases at the Court of Arbitration for Sport and the Swiss Federal Court, and has now turned to the European Court of Human Rights in Strasbourg, France.

The latest development in the case came on Tuesday, when the court issued a number of questions that the Government of Switzerland needs to respond to.

“On May 3, the court decided to give notice of Caster’s case to the Government of Switzerland. Now, that doesn’t always happen, that cases are taken forward, but her case has been given notice,” Nott said.

“Now, it has also been given priority status, which is also something else, and it is a positive indication that it has been given priority status. No date has been given.

“Today, the court published a Statement of Fact and a series of insightful questions to the party (the Government of Switzerland).

“Caster and her legal team look forward to receiving the Government of Switzerland’s response, and engaging with the questions posed by the court during this stage of the case. And those questions will go around predominantly Article 3, Article 4, Article 8, dealing with dignity and equality.”

While there is still a long road to walk in the case, Nott is hopeful that Semenya will win it.

“It’s a positive trend for us to see. There will either be a hearing or papers (submitted) – we are not sure what will happen, as that has not been determined yet. That will take some time down the road… I imagine, possibly in some months’ time,” he said.

“All indications are that the case is going along quite civilly and quite favourably. I can’t say (when the case will be concluded), but it will certainly happen hopefully before the world championships next year. But the process is unfolding favourably.”

The questions posed by the court are as follows:
1. In light of the claims made in the motion, and in particular in light of the examinations taken, the requirement to take contraceptives to lower testosterone levels, and the allegedly stigmatising and humiliating effect of the DSD Regulations, has the applicant undergone any treatment contrary to its human dignity, physical and mental integrity, and social and gender identity, in violation of Article 3 of the (European) Convention (on Human Rights)?

2. For essentially the same reasons as mentioned under point 1), has the applicant suffered a violation of the right to respect for her privacy protected by Article 8 of the Convention? In addition, did she suffer an infringement of her right to practise her profession (Platini v. Switzerland (Dec.), No. 526/18, Section 52 et seq., February 11, 2020)?

3.1 Was there a violation of Article 14, combined with Article 3 and/or 8 of the Convention on the grounds of the discriminatory treatment alleged by the applicant as a woman with a naturally higher testosterone level?

3.2 If so, what was the criterion for unequal treatment? Was there a difference in treatment between people in similar situations? Was there an objective and reasonable justification for the alleged inequality of treatment?

3.3 To your knowledge, how many high-performance athletes are potentially covered by the new DSD Regulations?

3.4 In sport, are there other regulations to correct certain beneficial physical characteristics (e.g. size) to ensure fairness in the competition?

4.1 Do the above alleged violations (Questions 1-3) constitute interference in the exercise by the applicant of the rights protected by Articles 3, 8 and 14 of the Convention, or a breach by Switzerland of its positive obligations to protect the applicant against treatment contrary to these provisions by private entities (in particular the “IAAF (now World Athletics)”)?

4.2 If so, was the DSD Regulations a sufficient legal basis, and was the interference allegedly caused by its implementation for a legitimate purpose within the meaning of Article 8 Section 2, and was it proportionate and necessary in a democratic society?

4.3. In the present case, did the applicant have sufficient institutional and procedural safeguards, namely a system of courts before which it was able to bring its complaints, and did they render decisions duly reasoned and taking into account the case-law of the Court (Platini, above, Section 62), including the objectivity of the reports of medical experts and the justification and proportionality of the DSD Regulation?

5. Was there a violation of Section 6 (access to court) and/or 13 (effective remedy) for the limited control of the Federal Court?

Editor@tech-talk.co.za

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