Olympic champion Caster Semenya loses at Swiss Supreme Court over testosterone rules

Two-time Olympic champion Caster Semenya on Tuesday lost her long legal battle against track and field rules that limit female runners’ naturally high testosterone levels.

Switzerland's Supreme Court said its judges dismissed Semenya's appeal against a Court of Arbitration for Sport ruling last year that upheld the rules drafted by the governing body affecting female runners with differences of sex development.

The 71-page ruling means she cannot defend her Olympic 800-metre title at the Tokyo Games next year, or compete at any top meets in distances from 400m to 1,600m, unless she agrees to lower her testosterone level through medication or surgery.

The South African, 29, repeatedly said she would not do that.

“I am very disappointed by this ruling, but refuse to let World Athletics drug me or stop me from being who I am,” Semenya said through her lawyers.

“Excluding female athletes or endangering our health solely because of our natural abilities puts World Athletics on the wrong side of history."

The Swiss Federal Tribunal said her appeal “essentially alleges a violation of the prohibition of discrimination".

In a May 2019 verdict, the sports court's three judges said in a 2-1 ruling that the discrimination against Semenya was “necessary, reasonable and proportionate” to maintain fairness in women’s running.

Testosterone is a hormone that strengthens muscle tone and bone mass, and is a doping product if injected or ingested.

The panel of five federal judges said on Tuesday it was limited to examining whether the sports court's decision breached fundamental and widely recognised principles of public order.

"That is not the case," the panel said.

Semenya's "guarantee of human dignity” was also not compromised by the ruling, the judges decided.

“Implicated female athletes are free to refuse treatment to lower testosterone levels," the federal court said.

"The decision also does not aim to question in any way the female sex of implicated female athletes."

Semenya responded: "I will continue to fight for the human rights of female athletes, both on the track and off the track, until we can all run free the way we were born.

"I know what is right and will do all I can to protect basic human rights for young girls everywhere."

Although exact details of Semenya's condition have never been released since she won the first of her three world titles in 2009 as a teenager, she has testosterone levels that are higher than the typical female range.

World Athletics said that gave her and other female athletes with differences of sex development conditions and high natural testosterone an unfair advantage.

The rules Semenya appealed against require her to lower her testosterone to a level specified by the international track body for at least six months before competing.

Athletes have three options to do that. They are taking birth control pills, having testosterone-blocking injections or undergoing surgery.

Semenya took birth control pills for about five years until the world track body, then known as the IAAF, had to suspend its hyperandrogenism rules after a sports court appeal by sprinter Dutee Chand of India.

Testifying at her five-day hearing at the court in February 2019, Semenya said taking the medication had side effects including making her prone to injury.

Tuesday's federal judgment came more than a year after the 2012 and 2016 Olympic champion lost a previous ruling at the same court.

That July 2019 verdict overturned a temporary ruling that allowed Semenya briefly to compete in the 800m at international events, winning a top-tier race at Palo Alto, California, without taking testosterone-suppressing drugs.

Greg Nott, her lawyer in South Africa, said her international legal team was "considering the judgment and the options to challenge the findings in European and domestics courts".

Any appeal to the European Court of Human Rights would probably not receive a ruling until after the Tokyo Olympics open next July.

Tuesday's judgment also came at a financial cost to Semenya and South Africa's track federation, which joined her appeal.

Each was ordered to pay 7,000 Swiss francs ($7,627 or Dh28,020) to the court and 8,000 francs towards World Athletics' legal costs.