RUNNING AGAINST THE TIDE: CASTER SEMENYA, HUMAN RIGHTS, AND THE SILENCE OF GLOBAL SPORTS LAW

By

Calvin Stewart Obita^*

1.0  The Athlete Who Refused to Be Redefined

Caster Semenya has never been just an athlete. She is a symbol of excellence, of resistance, of the difficult conversations the world avoids when the lines between gender, biology, and justice begin to blur. On the track, she has been a champion. In courtrooms, she has become something rarer: a catalyst for reckoning.

When the European Court of Human Rights (ECtHR) delivered its long-awaited Grand Chamber judgment in her case against Switzerland in July 2025, it did more than affirm a procedural violation, it exposed the unsettling architecture of international sport, where power hides behind arbitration and rules parade as fairness.

At the heart of Semenya’s challenge were the “DSD Regulations” adopted by IAAF in 2018, which targeted women with Differences of Sex Development (DSD). These regulations, cloaked in the language of competitive integrity, required such athletes to reduce their naturally high testosterone levels to compete in women’s events between 400m and 1500m.

For Semenya, compliance would have meant chemically altering her body thereby undermining her autonomy, dignity, and health. She refused. What followed was not just a legal contest, but a deeply personal and politically charged trial about who gets to define womanhood in sport and at what cost.

1.1  A Courtroom Without a Remedy

Semenya’s journey through the legal system began in the Court of Arbitration for Sport (CAS), an institution that, while nominally neutral, often shields sports bodies from robust legal scrutiny. In 2019, CAS admitted that the DSD Regulations were “prima facie discriminatory” but insisted they were necessary to preserve fairness in female sport. The contradiction was painful.

Discrimination was acknowledged but excused, justified by science whose reliability was hotly debated. Performance advantage, based on elevated testosterone levels, was taken as gospel, despite minimal evidence proving causality over correlation. CAS framed its decision as a balancing act, but for Semenya, it was a dismissal of her humanity in favour of abstract standards.

When she appealed to the Swiss Federal Supreme Court, the deck remained stacked. The court, invoking the restrictive grounds under Swiss private international law, confined itself to whether the CAS award offended Swiss public policy. It refused to engage with Semenya’s deeper claims that the regulations violated her rights to privacy, dignity, and non-discrimination under the European Convention on Human Rights. The court reasoned that it lacked the mandate to assess the underlying scientific or human rights dimensions. It was in this vacuum of legal remedy that Semenya turned to Strasbourg, seeking not just justice but recognition.

1.2  The Grand Chamber's Verdict: A Partial but Powerful Win

In a decision that has already reverberated through the legal and sporting worlds, the Grand Chamber of the ECtHR found that Switzerland had breached Semenya’s right to a fair hearing under Article 6(1) of the Convention.

The Court’s reasoning was as elegant as it was damning: when arbitration is compulsory, and when civil rights such as one’s ability to earn a living are implicated, the state must ensure a level of judicial oversight that respects the rule of law. The Swiss courts, by confining their review to procedural grounds, had abdicated that responsibility.

The judgment drew a bold line in the sand. It declared that access to justice cannot be a formality. Switzerland had allowed the CAS, an inherently private tribunal to decide questions of fundamental human rights without sufficient oversight. That failure made the state responsible, regardless of whether it had created the rules in question. It was a reminder that when states act as the hosts and enforcers of private arbitration regimes, they do not shed their human rights obligations.

In Semenya’s case, the real injustice was not merely the content of the DSD Regulations, but the absence of any court willing to fully grapple with what those rules meant for her body and her being.

1.3 Where It Mattered Most: The Lost Chance on Substantive Rights

Despite its procedural clarity, the judgment leaves behind a bitter residue. The Grand Chamber declined to rule on Semenya’s claims under Articles 8, 13, and 14, the rights to private life, an effective remedy, and freedom from discrimination. These claims were declared inadmissible on jurisdictional grounds.

The Court concluded that since Semenya is South African and the DSD Regulations were issued by a Monegasque entity, Switzerland could not be held responsible for those aspects of the harm she suffered.

That decision has been met with disappointment from legal scholars and human rights advocates. It reflects a rigid approach to jurisdiction that ignores the functional role Switzerland plays in the enforcement of international sports law. Semenya’s rights were not violated in abstract; they were denied through a legal system based in Lausanne, supervised by Swiss authorities, and immune from full judicial redress.

The decision, in effect, recognised that her trial had been unfair, but stopped short of condemning the very content of the rules that had silenced her. In doing so, it left unresolved the most urgent question of all: can sport demand that a woman alter her biology to remain eligible as a woman?

2.0  When Science Becomes a Gatekeeper of Personhood

Underlying the legal arguments is an unresolved scientific controversy. The justification for the DSD Regulations rests on the claim that higher testosterone provides an unfair advantage in certain events. But many scientists have challenged the evidence base. They argue that performance is influenced by myriad factors such as training, environment, muscle composition, psychological strength, not just hormone levels.

And even if an advantage exists, sport has never been premised on complete biological equality. Height, lung capacity, fast-twitch muscles, none are regulated. Only testosterone, and only in certain women, has become subject to surgical and chemical control.

This selective policing of biology has a racial and gendered undertone. The DSD Regulations disproportionately affect women of African descent, raising uncomfortable parallels with colonial-era pathologies that sought to define womanhood through Western lenses.

Semenya, with her muscular build, deep voice, and athletic prowess, does not conform to stereotypical expectations of femininity. Instead of embracing diversity, global sport has sought to normalise deviation, imposing treatments to manufacture conformity. The science, in this light, becomes less about objectivity and more about gatekeeping, deciding who qualifies as a “real” woman.

2.0  Why This Matters for Uganda

The legal and cultural implications of this judgment extend far beyond Europe. Uganda, like many African countries, is a rising force in international athletics. Yet it remains ill-equipped to protect athletes whose natural biology challenges global regulatory frameworks. There is no Ugandan law addressing DSD athletes, no legal mechanism to challenge international sporting rules that violate constitutional rights, and no policy guidance on how federations should implement such rules domestically.

If a Ugandan athlete were subjected to the same regulations as Semenya, it is unclear whether they would find protection in the courts. While the Constitution guarantees equality and dignity, these rights remain underdeveloped in the context of sports. Arbitration, often hailed as efficient, would likely insulate the dispute from judicial review. Semenya’s case should inspire Ugandan legal reform not just in procedural law, but in how we conceptualise fairness, autonomy, and identity in sport.

It also poses a challenge to Ugandan institutions. Should the Uganda Athletics Federation adopt World Athletics regulations wholesale? Or should it, like South Africa, resist global standards that do not reflect African values and constitutional commitments? Semenya’s struggle was as much about decolonising sport as it was about winning races. Uganda has a choice: to echo Europe’s silence or to find its own voice in protecting athletes who defy binaries.

3.0  A Judgment That Begins, Not Ends, the Conversation

The Semenya decision is a paradox: a powerful declaration of procedural injustice and a stunning silence on substantive discrimination. Yet its legacy may lie not in what it concluded but in what it forced us to confront. That athletes are more than bodies to be measured. That fairness is not the same as sameness. That dignity cannot be sacrificed at the altar of standardisation. And that the law, even when slow to act, remains the last refuge for those disfigured by rules that fail to see their humanity.

For Uganda, this is an opportunity. To build systems that understand sport not as an apolitical arena, but as a site of struggle where rights, power, and identity collide. To ensure that the next Semenya does not have to leave her homeland to be heard. And to declare that in our courts, at least, excellence will never be a cause for exclusion.

The PDF version of the article is available here.

RUNNING AGAINST THE TIDE_CASTER SEMENYA^J HUMAN RIGHTS^J AND THE SILENCE OF GLOBAL SPORTS .

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* Editor-in-Chief Lawpointuganda.