Semenya, after the support at the Strasbourg Court: “Justice has spoken, but this is only the beginning”

Some years ago, Shaquille O’Neal said that “Someone is really good when they have to change the rules of the sport to stop it.” In his case, they were two rules that were modified by the NBA. The most recent one that conditioned rival defenses who abused intentional fouls, knowing that the shooting of free throws was the real deficit of the formidable center.

A few days ago, something similar happened with Dibu Martinez, goalkeeper of the Argentine national soccer world champion team. Given its habit of approaching the rival before the execution of a penalty kick to talk and make them nervous, FIFA further limited the scant freedom of movement that the always sacrificed guardians of the goal had until now.

Similar situations occurred with other basketball legends such as George Mikan, Kareem Abdul-Jabbar and Michael Jordan. Also for Luciana Aymar, considered by the IHF to be the best field hockey player of all time: starting from the systematic foul she was subjected to during the best times of her career, the autopase rule emerged, which allows the player who suffers the fouls to continue the game without having to pass the ball to a partner.

By the way, in no case was it formally announced that any part of the regulations had been modified in the name of this or that athlete; the sports bureaucracy would never have allowed such a thing.

However, no one could deny the veracity of each of these theories.

The same thing counts for Caster Semenya, the extraordinary South African runner who made the news again in the last few hours, this time, with some light at the end of the tunnel of her claim.

So targeted was the rule set up by World Athletics (IAAF), which we will explain later, that, initially, it directly affected Caster, Francine Niyonsaba, from Burundi, and Margret Wambui, from Kenya, not by chance, the full podium of the 800 meters at the Rio 2016 Olympic Games.

Caster Semenya has been fighting for five years to avoid undergoing a “counter-doping” that regulates her “illegal” hormones, which her body naturally generates. A process that she categorically refused and which they claim is harmful to her health. But her case has been questioning and undermining the profound foundations of sport and the human condition for a decade.

“Justice has spoken, but this is only the beginning,” the South African athlete said on Wednesday, a day after the ruling in her favor by the European Court of Human Rights (ECHR), which considered that she was a victim of discrimination. The two-time Olympic champion of the 800 meters, who has a natural excess of male sex hormones, called the ruling “decisive” because it “questions the future of all similar rules”.

Semenya, 32, went to the ECHR after the Swiss courts confirmed in 2020 a decision of the Court of Arbitration for Sport (TAS) validating a World Athletics regulation, which deprived her of being able to compete in tests of up to 1500 meters for refusing hormonal treatment to lower her testosterone rate.

Both the TAS and the Swiss Federal Courts accepted that, with their regulations, the international federation discriminated against Semenya, but considered that it was “necessary” discrimination to safeguard equality in women’s competition.

In 2021, Semenya appealed to the Strasbourg Court, which ruled last Tuesday with a recognition for the athlete’s argument: in a decision taken by four votes to three, it considered that the triple world champion suffered discrimination from the international federation, as well as an attack on her private life: “She did not enjoy sufficient institutional and procedural guarantees in Switzerland to allow her claims to be effectively examined,” the ruling said.

The European Court of Human Rights, based in Strasbourg, is an international jurisdiction that applies the European Convention for the Protection of Human Rights and Fundamental Freedoms, better known as the European Convention on Human Rights (ECHR).

Semenya, in a statement released yesterday on her social media, wrote: “My hope is that World Athletics, and from there all sports organizations, will take note of the ECHR decision and will ensure that the dignity and human rights of athletes are respected.”

However, the ruling does not invalidate the World Athletics regulations and does not directly open the way for Semenya to participate in the 800 meters without hormonal treatment. The ruling, which will not be final for three months, only guarantees Semenya’s right to have the Swiss federal court reconsider her case with more determination than at the first hearing.

In fact, World Athletics further tightened its regulations in March for intersex athletes like Caster Semenya, who must now keep their testosterone rate below 2.5 nanomoles per liter for 24 months (instead of the previous 5 nanomoles for six months) to participate in the women’s category, whatever the distance.

Almost a century ago, after the North American Helen Stephens won the 100 meters and refused to be received by Adolf Hitler in the rooms next to his box at the Olympic Stadium in Berlin, the dictator insinuated some suspicion about the sprinter’s gender. Infamy. And a calculation error, since the one who really would not have passed a femininity test was the Polish Stanislawa Walasiewicz, second in the same race, whose anomaly -mosaicism- was discovered decades later when an autopsy was performed after she was shot to death in the parking lot of a Cleveland shopping center.

As you see, issues related to gender, sports and arbitrariness are not exclusive issues of our time.