CEDH · CASELAW;JUDGMENTS;GRANDCHAMBER;ENG — 10 juillet 2025

.s800EAC49 { font-size:12pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .sBB9EE52A { font-family:Arial } .sDEE01590 { margin-top:18pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sA36B60A1 { font-family:Arial; font-style:italic } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s59272B2C { margin-top:0pt; margin-bottom:6pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s780F5245 { border:0.75pt solid #000000; clear:both } .s795B4A6B { margin-top:0pt; margin-bottom:0pt; text-align:justify; padding-top:1pt; padding-right:4pt; padding-left:4pt; font-size:11pt } .sA57875D8 { margin-top:0pt; margin-bottom:0pt; text-align:justify; padding-right:4pt; padding-left:4pt; font-size:11pt } .sF6EC97F2 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify; padding-right:4pt; padding-left:4pt; font-size:11pt } .s55E5497F { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:center; padding-right:4pt; padding-left:4pt; padding-bottom:1pt; font-size:10pt } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s2E932ED2 { margin-top:0pt; margin-bottom:0pt; font-size:11pt } .s4ACA9207 { page-break-before:always; clear:both; mso-break-type:section-break } .sCF7129D5 { margin-top:12pt; margin-bottom:0pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .sEECE831 { font-family:Arial; font-weight:bold; color:#474747 } .s8565C3AF { margin:8pt 28.35pt 3pt 17pt; text-indent:-17pt; page-break-after:avoid; line-height:12pt } .s7ED160F0 { text-decoration:none } .s659CE682 { font-family:Arial; font-size:11pt; font-weight:bold; text-decoration:underline; color:#0069d6 } .sF13A94BC { margin:0pt 28.35pt 3pt 34pt; text-indent:-17pt; page-break-after:avoid; line-height:12pt } .s92A5AB2 { font-family:Arial; font-size:11pt; text-decoration:underline; color:#0069d6 } .s695099B3 { width:10.89pt; text-indent:0pt; display:inline-block } .sEAB539EC { width:7.83pt; text-indent:0pt; display:inline-block } .s554D0A64 { width:4.78pt; text-indent:0pt; display:inline-block } .s3F015572 { margin:0pt 28.35pt 3pt 51pt; text-indent:-17pt; page-break-after:avoid; line-height:12pt } .sB6D33163 { font-family:Arial; font-size:10pt; text-decoration:underline; color:#0069d6 } .s833B1EA7 { width:7.55pt; text-indent:0pt; display:inline-block } .s4859184F { width:7pt; text-indent:0pt; display:inline-block } .sC15FC45D { width:3.55pt; text-indent:0pt; display:inline-block } .sDF290AB { width:6.61pt; text-indent:0pt; display:inline-block } .s35B94E0 { font-family:Arial; font-size:10pt; font-style:italic; text-decoration:underline; color:#0069d6 } .s38363B4F { margin:0pt 28.35pt 3pt 68.05pt; text-indent:-17pt; text-align:justify; page-break-after:avoid; line-height:12pt } .sD46FFE5D { width:8.66pt; text-indent:0pt; display:inline-block } .s70E0A597 { margin:0pt 28.35pt 3pt 85.05pt; text-indent:-17pt; line-height:12pt } .sA083312 { margin:0pt 28.35pt 3pt 102.05pt; text-indent:-17pt; text-align:justify; line-height:12pt } .s8E0B8B88 { width:8.12pt; text-indent:0pt; display:inline-block } .sF53451E7 { width:5.9pt; text-indent:0pt; display:inline-block } .sD76C0840 { margin:0pt 28.35pt 3pt 119.05pt; text-indent:-17pt; line-height:12pt } .s31A6B95 { width:4.56pt; text-indent:0pt; display:inline-block } .sC9B5F0A5 { width:4.59pt; text-indent:0pt; display:inline-block } .s72A8FB50 { width:5.34pt; text-indent:0pt; display:inline-block } .sBB31CFFC { width:3.67pt; text-indent:0pt; display:inline-block } .sA98EF83E { width:3.12pt; text-indent:0pt; display:inline-block } .s7356876 { width:0.9pt; text-indent:0pt; display:inline-block } .s1BAB8EC5 { width:15.67pt; text-indent:0pt; display:inline-block } .s1DFC318A { width:15.12pt; text-indent:0pt; display:inline-block } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sB9D5CABB { width:28.35pt; display:inline-block } .s3AAE10DF { margin-top:14pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s3CA22BA { font-family:Arial; text-transform:uppercase } .s590A3EF4 { margin-top:12pt; margin-left:19.85pt; margin-bottom:0pt; text-indent:-19.85pt } .s275CCCF2 { width:5.86pt; text-indent:0pt; display:inline-block } .s61E420C2 { font-family:Arial; font-variant:small-caps } .s7F032E73 { width:175.42pt; text-indent:0pt; display:inline-block } .s98FBE5B1 { width:3.85pt; text-indent:0pt; display:inline-block } .sA328E79B { width:0.68pt; text-indent:0pt; display:inline-block } .sB0A1083 { width:218.14pt; text-indent:0pt; display:inline-block } .sB7685225 { width:222.81pt; text-indent:0pt; display:inline-block } .s6B505E72 { margin:0pt; padding-left:0pt } .s586AA269 { margin-top:14pt; margin-left:11.67pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:8.18pt; font-family:Arial; text-transform:uppercase } .sB90D45C { margin-top:14pt; margin-left:15pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:3.45pt; font-family:Arial } .s9D48DD53 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .sC83D0F34 { margin-top:6pt; margin-left:46.35pt; margin-bottom:6pt; text-indent:-18pt; text-align:justify; font-size:10pt } .sB7A9661F { width:14.5pt; font:7pt 'Times New Roman'; display:inline-block } .s1EFD787B { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:0.05pt; text-align:justify; font-size:10pt } .s5C5C410E { margin-top:14pt; margin-left:18.34pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:0.11pt; font-family:Arial; text-transform:uppercase } .s8B983D37 { text-transform:none } .sD0489F03 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sDECD9755 { margin-left:11.67pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:6.78pt; font-family:Arial; text-transform:uppercase } .s743F3A55 { margin-right:0pt; margin-left:0pt; padding-left:0pt } .s879C130D { margin-left:7.05pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-weight:bold; text-transform:none } .s3A692EA6 { margin-top:14pt; margin-bottom:6pt; text-align:center; page-break-after:avoid; font-size:10pt } .s5E8F5A28 { margin-top:14pt; margin-left:25.5pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-family:Arial; font-weight:bold } .sDA7B489D { margin-top:14pt; margin-left:15pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:3.45pt; font-family:Arial; text-transform:uppercase } .s67CAFE05 { margin-top:14pt; margin-left:18.45pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-family:Arial; text-transform:uppercase } .s241FF221 { margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; text-align:justify } .sB20B16E1 { margin-top:0pt; margin-left:18pt; margin-bottom:0pt; text-align:justify } .s7C22C014 { margin-top:14pt; margin-left:16.34pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:2.11pt; font-family:Arial; text-transform:uppercase } .s33165EBA { font-family:Arial; font-size:8pt; vertical-align:super; color:#0069d6 } .sC879EADF { margin-top:6pt; margin-left:28.35pt; margin-bottom:6pt; text-align:justify; font-size:10pt } .sCD7D0356 { margin-top:14pt; margin-left:15pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:4.85pt; font-family:Arial; text-transform:uppercase } .sFBC99493 { font-style:italic } .sAE6FB95D { margin-top:14pt; margin-left:32.01pt; margin-bottom:6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:1.99pt; font-family:Arial; font-style:italic } .sF54F3725 { margin-top:0pt; margin-left:42.55pt; margin-bottom:6pt; text-indent:-17.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sDBC81028 { width:4.83pt; font:7pt 'Times New Roman'; display:inline-block } .s65DDED6B { margin-top:14pt; margin-left:42.55pt; margin-bottom:6pt; text-indent:-17.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s7AE800C3 { width:4.28pt; font:7pt 'Times New Roman'; display:inline-block } .s55F67FD3 { margin-top:0pt; margin-left:51.05pt; margin-bottom:6pt; text-indent:-17.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; line-height:113%; font-size:10pt } .s3970C00F { width:8.17pt; font:7pt 'Times New Roman'; display:inline-block } .sCD82236A { margin-top:14pt; margin-left:51.05pt; margin-bottom:6pt; text-indent:-17.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; line-height:113%; font-size:10pt } .s320E5A8E { width:5.95pt; font:7pt 'Times New Roman'; display:inline-block } .s695E2BCF { margin-top:0pt; margin-left:62.35pt; margin-bottom:6pt; text-indent:-19.8pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s16F6432D { width:7.9pt; font:7pt 'Times New Roman'; display:inline-block } .sFABD3260 { margin-top:14pt; margin-left:62.35pt; margin-bottom:6pt; text-indent:-19.8pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sFF8BF293 { width:8.05pt; font:7pt 'Times New Roman'; display:inline-block } .s3CAF9CA4 { width:8.72pt; font:7pt 'Times New Roman'; display:inline-block } .sD051EF8 { width:3.72pt; font:7pt 'Times New Roman'; display:inline-block } .s4196892D { width:3.17pt; font:7pt 'Times New Roman'; display:inline-block } .sBD165FDE { width:5.39pt; font:7pt 'Times New Roman'; display:inline-block } .s6747EE63 { width:0.95pt; font:7pt 'Times New Roman'; display:inline-block } .s6959B53C { width:1.52pt; font:7pt 'Times New Roman'; display:inline-block } .s9B60391A { width:0.97pt; font:7pt 'Times New Roman'; display:inline-block } .sD8958917 { margin-top:12pt; margin-left:15.01pt; margin-bottom:3pt; text-align:justify; padding-left:1.99pt; font-family:Arial } .sA7C1AE8A { margin-top:12pt; margin-left:15.01pt; margin-bottom:3pt; text-align:justify; padding-left:1.99pt; font-family:Arial; font-style:italic } .sC7F250FD { font-style:normal } .s95F3B0ED { margin-top:12pt; margin-left:15.01pt; text-align:justify; padding-left:1.99pt; font-family:Arial } .s51DFF5CF { margin-top:0pt; margin-left:34pt; margin-bottom:0pt; text-indent:-17pt; text-align:justify } .sE5BF05B1 { width:2.33pt; font:7pt 'Times New Roman'; display:inline-block } .s8E011338 { margin-top:12pt; margin-bottom:6pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s69DCC830 { margin-top:36pt; margin-bottom:0pt } .s4598CDF { width:70.9pt; display:inline-block } .s7DB8BC41 { width:183.09pt; display:inline-block } .sC986E16F { font-family:Arial; color:#ffffff } .sD6E2332A { margin-top:12pt; margin-bottom:0pt } .s482114CD { width:34.88pt; display:inline-block } .s543FF837 { width:151.1pt; display:inline-block } .s5D826FD4 { width:25.88pt; display:inline-block } .s1B61D60 { width:156.43pt; display:inline-block } .sA6BC7FA7 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:right } .s1721E4C5 { margin-top:14pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s2785BC08 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .sE870344F { margin-top:14pt; margin-left:17pt; margin-bottom:6pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s83BE5C30 { font-family:Arial; font-size:8pt; vertical-align:super } .s66E9FC38 { font-family:Arial; font-size:8pt; vertical-align:super; color:#000000 } .s63658818 { margin-top:14pt; margin-left:18.45pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 } .sBACB86A2 { font-family:Arial; font-size:6pt; vertical-align:super; color:#0069d6 } .sB853CD25 { font-family:Arial; font-size:9pt } .s60870AEC { font-family:Arial; font-size:9pt; text-decoration:underline; color:#000000 } GRAND CHAMBER CASE OF SEMENYA v. SWITZERLAND (Application no. 10934/21)   JUDGMENT   Art 1 • Jurisdiction of States • Applicant not within respondent State’s jurisdiction, given absence of territorial link between Switzerland on the one hand, and the applicant, the adoption by World Athletics of the regulations governing her personal situation and their effects on her on the other • Applicant’s civil-law appeal to Federal Supreme Court (FSC) against award by Court of Arbitration for Sport (CAS) created, by way of exception, a jurisdictional link with Switzerland with regard to Art   6 • Absence of exceptional circumstances capable of establishing territorial link in respect of complaints under Art   8, 13 and 14 Art 6 § 1 (civil) • Fair hearing • Appeal to FSC against CAS award rejecting complaint by professional athlete with differences of sex development, concerning non-State regulations requiring her to lower her natural testosterone level in order to compete in women’s category in international competitions • Right to fair hearing requiring particularly rigorous examination where CAS’s mandatory and exclusive jurisdiction was imposed on sportsperson by governing body, and dispute concerned “civil” right or rights corresponding, in domestic law, to fundamental rights • FSC’s review limited to compatibility of CAS award with substantive public policy, a concept it interpreted very restrictively • Failure to conduct particularly rigorous examination of applicant’s complaint   Prepared by the Registry. Does not bind the Court.   STRASBOURG 10 July 2025   This judgment is final but it may be subject to editorial revision.   Table of Contents INTRODUCTION PROCEDURE THE FACTS I.   THE CIRCUMSTANCES OF THE CASE II.   THE PROCEEDINGS BEFORE THE CAS III.   THE PROCEEDINGS IN THE FEDERAL SUPREME COURT RELEVANT LEGAL FRAMEWORK AND PRACTICE I.   DOMESTIC LAW AND PRACTICE A.   Articles 8 and 190 of the Federal Constitution of the Swiss Confederation B.   Personality rights C.   International arbitration II.   INTERNATIONAL MATERIALS A.   The New York Convention B.   European Union law III.   OLYMPIC CHARTER IV.   DSD REGULATIONS V.   CODE OF SPORTS-RELATED ARBITRATION THE LAW I.   SCOPE OF THE CASE II.   ALLEGED VIOLATION OF ARTICLE 6 § 1, ARTICLE 8, ARTICLE   13 AND ARTICLE 14 OF THE CONVENTION A.   Switzerland’s jurisdiction, within the meaning of Article 1 of the Convention, and the Government’s preliminary objection that the complaints under Articles 8, 14 and 13 of the Convention are inadmissible as being incompatible ratione personae and ratione loci with the provisions of the Convention 1.   The parties’ submissions (a)   The Government (b)   The applicant 2.   Observations of the third-party interveners 3.   The Chamber judgment 4.   The Court’s assessment (a)   Applicable principles (b)   Application of those principles to the present case (i)   Switzerland’s jurisdiction in terms of the territoriality principle (ii)   Switzerland’s jurisdiction as an exception to the territoriality principle (α)   As regards the complaint under Article 6 § 1 of the Convention (β)   As regards the complaints under Article 8 of the Convention, taken alone or in conjunction with Article 14 (γ)   As regards the complaint under Article 13 of the Convention (c)   Conclusion B.   Alleged violation of Article 6 § 1 of the Convention 1.   Issues relating to admissibility other than that of Switzerland’s jurisdiction 2.   Merits (a)   The parties’ submissions (i)   The applicant (ii)   The Government (b)   Observations of the third-party interveners (i)   The United Kingdom Government (ii)   The United Nations High Commissioner for Human Rights (iii)   Dr Tlaleng Mofokeng, Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, Ms   Melissa Upreti, President of the Working Group on discrimination against women and girls, and Mr Nils Melzer, Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment (iv)   South African Human Rights Commission (v)   World Athletics (vi)   Athletics South Africa (“ASA”) (vii)   Canadian Centre for Ethics in Sport (viii)   Human Rights Centre of Ghent University (ix)   International Commission of Jurists, Organisation Intersex International Europe and the European Region of International Lesbian, Gay, Bisexual, Trans and Intersex Association-Europe (x)   Mr Antoine Duval, Mr Cesare P.R. Romano and Mr Faraz Shahlei (xi)   Human Rights Watch, Ms Payoshni Mitra and Ms Katrina Karkazis (xii)   The Vlaamse Ombudsdienst (xiii)   Women Sport International, the International Association of Physical Education and Sport for Girls and Women and the International Working Group for Women in Sport (xiv)   World Medical Association and Yale University’s Global Health Justice Partnership (c)   The Chamber judgment (d)   The Court’s assessment (i)   General principles relating to the Court’s task under Article 6 of the Convention and to the reasoning of court decisions (ii)   Case-law relating to arbitration (iii)   Specific issue of compulsory arbitration before the CAS for the resolution of international sports-related disputes (iv)   Examination of the complaint III.   APPLICATION OF ARTICLE   41 OF THE CONVENTION A.   Damage B.   Costs and expenses C.   Default interest OPERATIVE PROVISIONS PARTLY CONCURRING OPINION OF JUDGE ŠIMÁČKOVÁ A “tribunal established by law”? An “independent and impartial” tribunal? Conclusion PARTLY DISSENTING JOINT OPINION OF JUDGES BOŠNJAK, ZÜND, ŠIMÁČKOVÁ AND DERENČINOVIĆ PARTLY DISSENTING JOINT OPINION OF JUDGES EICKE AND KUCSKO-STADLMAYER INTRODUCTION JURISDICTION MERITS OF THE ARTICLE 6 § 1 COMPLAINT POSTSCRIPT     In the case of Semenya v. Switzerland, The European Court of Human Rights, sitting as a Grand Chamber composed of:   Marko Bošnjak,   Síofra O’Leary,   Arnfinn Bårdsen,   Gabriele Kucsko-Stadlmayer,   Mattias Guyomar,   Faris Vehabović,   Mārtiņš Mits,   Pauliine Koskelo,   Tim Eicke,   Jolien Schukking,   Erik Wennerström,   Raffaele Sabato,   Andreas Zünd,   Diana Sârcu,   Kateřina Šimáčková,   Davor Derenčinović,   Sebastian Răduleţu, judges , and Abel Campos, Deputy Registrar , Having deliberated in private on 2 April 2025, Delivers the following judgment, which was adopted on that date: INTRODUCTION 1 .     The applicant, who is a South African international-level athlete, specialising in middle-distance races, complained that she was obliged to decrease her natural testosterone level in order to be allowed to take part in the female category of international competitions, as a result of the “Eligibility Regulations for the Female Classification (Athletes with Differences of Sex Development)” (“the DSD Regulations”) issued by the International Association of Athletics Federations (IAAF – now called World Athletics), a Monegasque private-law association, and that her legal actions challenging those regulations before the Court of Arbitration for Sport (CAS), which has its seat in Switzerland, and then the Federal Supreme Court had been rejected. In her application to the Court, the applicant relied on Article   3 of the Convention, Article 6 § 1, Article 8 taken alone and in conjunction with Article 14, and Article 13. PROCEDURE 2.     The case originated in an application (no. 10934/21) against the Swiss Confederation lodged with the Court under Article   34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a South African national, Ms Mokgadi Caster Semenya (“the applicant”), on 18 February 2021. 3.     The applicant was represented by Ms S. Sfoggia, a lawyer practising in Paris. The Swiss Government (“the Government”) were represented by their acting Agent, Mr A. Scheidegger, of the Federal Office of Justice. 4.     On 3   May 2021 the Government were given notice of the application. 5.     The application was allocated to the Third Section of the Court (Rule   52 §   1 of the Rules of Court). On 11 July 2023 a Chamber of that Section composed of Pere Pastor Vilanova, President, Yonko Grozev, Georgios A. Serghides, Darian Pavli, Peeter Roosma, Ioannis Ktistakis, and Andreas Zünd, judges, and Milan Blaško, Section Registrar, delivered a judgment in which it dismissed, by a majority, the Government’s preliminary objection that the Court lacked jurisdiction ratione personae and loci ; declared admissible, by a majority, the complaint concerning Article 14 in conjunction with Article 8, and the complaint concerning Article 13 in relation to Article 14 in conjunction with Article 8 ; declared inadmissible, by a majority, the complaint concerning Article 3 of the Convention; held, by four votes to three, that there had been a violation of Article 14 of the Convention in conjunction with Article 8; held, by four votes to three, that there had been a violation of Article 13 of the Convention in relation to   Article 14 in conjunction with Article 8; and held, by six votes to one, that there was no need to examine separately the complaints under Article 8 of the Convention taken alone or the complaint under Article 6 § 1 . The concurring opinion of Judge Pavli , the partly concurring, partly dissenting opinion of Judge Serghides, and   the joint dissenting opinion of Judges Grozev, Roosma and Ktistakis were annexed to the judgment. 6.     On 9 October 2023 the Government requested that the case be referred to the Grand Chamber in accordance with Article 43 of the Convention. On 6   November 2023 a panel of the Grand Chamber accepted that request. 7.     The composition of the Grand Chamber was determined according to the provisions of Article   26 §§   4 and   5 of the Convention and Rule   24. 8.     Síofra O’Leary’s term as President of the Court came to an end. Marko Bošnjak succeeded her in that capacity and took over the presidency of the Grand Chamber in the present case (Rule 9 § 2). Síofra O’Leary, Gabriele Kucsko-Stadlmayer and Mārtiņš Mits continued to sit following the expiry of their terms of office, in accordance with Article   23   §   3 of the Convention and Rule   24   §   4. 9.     The applicant and the Government each filed observations on the admissibility and the merits of the case (Rule 59 § 1). In addition, third-party comments were received from the United Kingdom Government; Mr Volker Türk, the United Nations High Commissioner for Human Rights; World Athletics; Athletics South Africa; the Canadian Centre for Ethics in Sport; the Human Rights Centre of Ghent University; the International Commission of Jurists, Organisation Intersex International Europe and the European Region of International Lesbian, Gay, Bisexual, Trans and Intersex Association, jointly; the South African Human Rights Commission; Mr   Antoine Duval, Mr Cesare P.R. Romano and Mr Faraz Shahlei, jointly; Human Rights Watch and Ms   Katrina Karkazis and Ms Payoshni Mitra, jointly; Dr Tlaleng Mofokeng, Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, Ms   Melissa Upreti, President of the Working Group on discrimination against women and girls, and Mr Nils Melzer, Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, jointly; the Vlaamse Ombudsdienst; Women Sport International, the International Association of Physical Education and Sport for Girls and Women and the International Working Group for Women in Sport, jointly; and the World Medical Association and Yale University’s Global Health Justice Partnership, jointly, all of which had been given leave by the President of the Chamber or of the Grand Chamber to intervene in the written procedure (Article   36 § 2 of the Convention and Rule 44 § 3 and Rule   71 §   1). 10.     A hearing took place in public in the Human Rights Building, Strasbourg, on 15 May 2024. There appeared before the Court: (a)     for the Government Mr   A. Scheidegger,   Acting Agent , Ms   C. Ehrich , Ms   D. Steiger Leuba , Mr   N. Meier , Ms   I. Ryser ,   Advisers ; (b)     for the applicant Ms   S. Jolly KC , Ms   C. McCann ,   Counsel , Mr   C. Dargham , Mr   C. Sayao , Mr   G. Nott , Mr   P. Bracher ,   Advisers .   The applicant was also present. The Court heard addresses by Mr Scheidegger, Ms Jolly KC and Ms   McCann, as well as their replies to questions put by judges. THE FACTS 11.     The applicant was born in 1991 and lives in Pretoria. THE CIRCUMSTANCES OF THE CASE 12.     The applicant is a South African international-level athlete, specialising in middle-distance races. Among other achievements, she won the gold medal in the women’s 800   m race at the Olympic Games in London (2012) and Rio de Janeiro (2016), and she is also a three-time world champion over that distance (Berlin 2009, Daegu 2011, and London 2017). 13.     In 2009, in the context of the World Championships being held in Berlin, IAAF-appointed doctors conducted a physical examination of the applicant, including her genital areas, and performed a blood test with a view to determining her biological sex. The IAAF subsequently informed her that she would have to decrease her testosterone level below 10 nmol/L if she wished to be eligible to compete in the female category at international athletics competitions in her preferred events. 14.     The applicant was prescribed oral contraceptives in order to decrease her testosterone level. She submitted that she experienced serious side effects from the hormone treatment. 15.     Despite those side effects, the applicant won the women’s 800 m race at the World Championships in Daegu (2011) and the Olympic Games in London (2012). 16 .     On 1 May 2011 the IAAF Regulations Governing Eligibility of Females with Hyperandrogenism to Compete in Women’s Competition came into force. These Regulations provided that, in order to be eligible to compete in the female category, a female athlete had to either have a blood testosterone level lower than 10 nmol/L or, if her testosterone was equal to or higher than that amount, to be able to demonstrate that she had an androgen resistance such that having androgen levels within the normal male range did not provide her with any competitive advantage. The Regulations also established a three-level medical assessment: initial clinical examination of the athlete; a preliminary endocrine assessment carried out on urine and blood samples; and full examination and diagnosis. 17 .     On 24 July 2015, in an interim award delivered in the Dutee Chand v.   Athletics Federation of India (AFI) and IAAF (CAS 2014/A/3759) case, the CAS temporarily suspended those Regulations. 18 .     Dutee Chand, an Indian athlete, had lodged a request for arbitration with the CAS against a decision of the IAAF in which, on the basis of the above-mentioned Regulations, it had revoked her eligibility to participate in the female category of competition in the light of her increased level of testosterone. Based on various scientific opinions and expert reports, the CAS had concluded that it had not been sufficiently proven that a female athlete with a testosterone level above the maximum permitted enjoyed such an unfair performance advantage over her competitors that it was necessary to exclude her from competing in the female category. In its view, the link between an increased testosterone level and increased athletic performance had not been sufficiently established. It therefore suspended the Regulations for a maximum period of two years during which the IAAF had the opportunity to provide other evidence and expert analysis demonstrating, in particular, the performance advantage that hyperandrogenic female athletes enjoyed as a result of their testosterone level over non-hyperandrogenic female athletes, in the absence of which the Regulations would be declared null and void. 19.     Consequently, the applicant stopped taking her hormone treatment. 20.     In 2016 the applicant once again won the Olympic gold medal in the women’s 800 m race, and in 2017 she became world champion again in the same distance. 21.     On 23 April 2018 the IAAF issued the Eligibility Regulations for the Female Classification (Athletes with Differences of Sex Development) (“the DSD Regulations”; see paragraphs 70-79 below). The Regulations provided, in particular, that, in order to be eligible to compete in the female category at international competitions in certain events (400   m, 400   m hurdles, 800   m, 1,500   m and 1   mile races, and all the other races over distances between 400   m and 1   mile), or to have recognised a world record at non-international competitions, a “Relevant Athlete” had to meet each of the following conditions: be recognised at law “either as female or as intersex (or equivalent)”; to reduce her blood testosterone level to below 5 nmol/L for a continuous period of at least six months; and thereafter maintain her blood testosterone level below 5   nmol/L continuously (whether she was in competition or not) for so long as she wished to remain eligible to compete in the female classification in the relevant events at international competitions (or have a world record recognised in a relevant event at non-international competitions). 22.     The applicant refused to comply with the Regulations since they required her to submit to hormone treatment with poorly understood side effects. THE PROCEEDINGS BEFORE THE CAS 23 .     On 18 June 2018 the applicant lodged a request for arbitration with the CAS, which has its seat in Lausanne, challenging the DSD Regulations. She submitted that they were in conflict with higher rules, such as the IAAF Constitution, the Olympic Charter, Monegasque law and international human rights law applicable to Monaco. She argued that they were discriminatory on grounds of birth or natural physical, genetic or biological characteristics, of sex (against women), of gender and of physical appearance, and that they discriminated against female athletes who competed in certain events. The applicant also submitted that the Regulations were not “necessary” in order to guarantee fair competition in the female category, that they were not “reasonable” in that they had no logical connection to that aim, and that they were not “proportionate” having regard to their detrimental consequences on female athletes with a difference of sex development (“DSD”). On the latter point, the applicant referred to the exclusion of the athletes concerned from competition, the interference with their bodily integrity caused by the intrusive examinations and associated psychological harm and the resulting stigmatisation, the public intrusion, judgment and humiliation, and the physical and mental harm caused by the pharmacological or surgical interventions used to reduce testosterone levels. 24.     On 25 June 2018 the South African athletics federation (Athletics South Africa, “ASA”) also applied to the CAS, which joined the cases on 29   June 2018. 25.     On 23 July 2018 the CAS informed the parties of the names of the three arbitrators on the panel which would examine the case. 26.     While the proceedings were ongoing, the IAAF amended the list of DSDs covered by the DSD Regulations, with the result that they now apply only to 46 XY DSD athletes. Athletes with XX chromosomes but a testosterone level equal to or greater than the permitted level under the DSD Regulations are therefore no longer subject to them. 27.     At the close of the exchange of written pleadings, a hearing took place in Lausanne from 18 to 22 February 2019. The applicant gave evidence in person. 28.     In addition to the applicant’s own statement, five other witness statements submitted by her were added to the case file, including those of the gynaecologist and doctor who had supervised her while she was taking oral contraceptives to reduce her testosterone level, and one from the athlete Dutee Chand (see paragraphs 17-18 above). Thirty-two statements by medical, scientific and legal experts were also included in the case file, fifteen of which had been requested by the applicant, eight by ASA and nine by the IAAF. 29.     On 30 April 2019 the CAS rejected the requests for arbitration in a 136 ‑ page reasoned award in English. 30 .     In its award, the CAS began by stipulating that, in ruling on the dispute, it would, unless otherwise specifically provided, “apply the IAAF’s Constitution and Rules in conjunction with the Olympic Charter and in subsidiary, where necessary, Monegasque law ”. On this point, the award provides as follows: “ VII. Applicable Law 421.     Article R45 of the Code [of Sports-related Arbitration] provides as follows: ‘The Panel shall decide the dispute according to the rules of law chosen by the parties or, in the absence of such a choice, according to Swiss law. The parties may authorize the Panel to decide ex aequo et bono . ’ 422.     In both their oral and written submissions, the parties have expressly referred to and relied upon the Olympic Charter, the IAAF Constitution, as well as the IAAF Rules and Regulations, including the DSD Regulations. In subsidiary arguments, the parties also mutually rely upon the law of Monaco (and, on various points, ASA relies on various National laws of Korea and Russia). 423.     Moreover, during final submissions, the Panel asked the parties if they would consent to the Panel exercising power under Article R45 of the Code. The IAAF declined to provide such consent at the time. During subsequent post-hearing written submissions, the IAAF modified its position by suggesting that it would consent to a limited exercise of that power. The Claimants did not agree to the power under Article   R45 being exercised on a limited basis as proposed by the IAAF. Accordingly, in the absence of unanimous agreement between the parties, the power under Article   R45 is inapplicable. 424.     Accordingly, in deciding this dispute and unless otherwise specifically mentioned, the Panel finds no reason to deviate from the law agreed upon by the parties and will apply the IAAF’s Constitution and Rules in conjunction with the Olympic Charter and in subsidiary, where necessary, Monegasque law. ” 31 .     On the merits, the CAS held as follows: “ A.     Introduction 454.     Ms. Semenya is a woman. At birth, it was determined that she was female, so she was born a woman. She has been raised as a woman. She has lived as a woman. She has run as a woman. She is – and always has been – recognised in law as a woman and has always identified as a woman. 455.     As an athlete, she says that she was born to run. She has undoubtedly had outstanding success in her career as an elite middle-distance runner, winning multiple Olympic, World, Commonwealth and regional championship titles. She is, today, a strong and dignified woman and one of the most famous and accomplished female athletes in the history of the sport. 456.     The IAAF is entrusted with enacting regulations to facilitate and ensure the fair and principled administration of the sport of athletics for the benefit of all athletes. To this end, the IAAF has for some years, if not decades, struggled to deal with a problem that the IAAF believes must be solved. While children manifest similar athletic ability pre-puberty, this changes significantly post-puberty. Later in this Award, some of those changes are discussed but, at this point, suffice to say that post-puberty, generally speaking, male athletes outperform female athletes and, at elite level, this difference is insurmountable. Accordingly, in order to enable women to compete at elite level, with all of the benefits that result from such competitions and success in such competitions, it has been considered necessary to provide for what the IAAF calls ‘a protected class’ of female athletes. Without the protection of restricted entry to that class, the IAAF says, women athletes would be at risk of being denied the right to compete and succeed at the highest levels. It would follow that women athletes would cease to compete in events where that protection is not available. Accordingly, the ‘protected class’ must exist, and some workable and effective condition(s) must be established to regulate who may, and may not, participate within it. 457.     The answer, at first, seems to be logical and straightforward: restrict entry to that ‘protected class’ to female athletes and deny entry to male athletes, who have their own category in which to compete. In short, require like to compete against like. However, that straightforward answer assumes that sex is binary for all purposes, which it is not. It is not so simple. While elite competitive athletics has been divided into discrete binary categories of male and female, a neat and discrete boundary between male and female does not exist in nature. The male/female categorisation at the heart of competitive athletics thus does not map perfectly onto the diverse spectrum of sex characteristics that exists in natural human biology. 458.     In recent years, a further complicating factor has begun to emerge. Laws governing the assignment of legal sex have begun to evolve in a number of jurisdictions around the world. ... 459.     The IAAF has tried to find a solution to this dilemma and has put forward a number of solutions, all of which have been deemed inappropriate. The DSD Regulations are the latest iteration of the IAAF’s struggle to enact an effective and legally defensible means of reconciling the binary male/female classification in competitive athletics with the variegated spectrum of biological sex characteristics that exist in nature and the increasingly complex and diverse national laws governing legal sex. 460.     This case therefore involves a collision of scientific, ethical and legal conundrums. It also involves incompatible, competing, rights. It is not possible to give effect to, or endorse, one set of rights without restricting the other set of rights. Put simply, on one hand is the right of every athlete to compete in sport, to have their legal sex and gender identity respected, and to be free from any form of discrimination. On the other hand, is the right of female athletes, who are relevantly biologically disadvantaged vis-à-vis male athletes, to be able to compete against other female athletes and not against male athletes and to achieve the benefits of athletic success, such as positions on the podium and consequential commercial advantages. This right of competition is often described (although not so easily defined) as the right to compete on a ‘level playing field’. 461.     In the present case it is not in dispute that it is necessary to have a ‘protected class’ of female athletes. It is common ground that competitive athletics is (and should be) divided into separate male and female categories. ... However, the issue of how to regulate the right to participate in the ‘protected class’ is complex. In strictly biological terms, not all individuals’ bodies fit neatly and unambiguously into a single binary male/female classification. Complex questions of biology therefore arise, necessitating consideration of issues of genetics, endocrinology and gynaecology. 462.     It is common ground that any rules regulating who may participate in the female category must be rational, objective and fair. The IAAF insists that it does not challenge or call into question the sex or gender of Ms. Semenya or DSD athletes in general. Rather, in a consideration of eligibility to compete in certain events as a female, it refers to what it terms the ‘sports sex’ of women athletes, invoking the existence of certain DSD and the level of endogenous testosterone to introduce a further qualification or eligibility requirement for entry into certain events in the female category. ... 463.     In considering the issues in this case, it is important to bear in mind that the labels ‘male’ and ‘female’ may mean different things in different contexts. For example, these words may refer to a person’s legal sex (i.e. their sex in the eyes of the law), their subjective gender identity (i.e. how they identify themselves) or some specific aspect of their individual physiology (for example their gonadic characteristics or their hormonal profile). The different meanings that attach to the same words in different contexts explain, in part, why rules governing eligibility to participate and compete in the female category generate such controversy and strength of feeling. A rule that seeks to define ‘maleness’ or ‘femaleness’ for one purpose can easily be perceived (rightly or wrongly) as an attempt to define – or to challenge – a person’s ‘maleness’ or ‘femaleness’ for other purposes or in other contexts. 464.     [N]othing in this Award is intended to question, determine or pass judgment upon any aspect of any person’s sex or gender. Instead, this Award is solely concerned with deciding the specific legal issues that arise for determination of the lawfulness of the DSD Regulations as challenged by Ms. Semenya and ASA. ... B.     The Chand decision ... C.     The factual and scientific issues in this case 473.     A number of complex factual and scientific issues emerged during the proceeding. ... 474.     The factual and scientific issues can broadly be grouped by reference to the following questions: •           What is the role of testosterone in male/female sporting ability? •           What is the role of DHT [dihydrotestosterone] in male/female sporting ability? •           What are the main characteristics of an athlete with a DSD such as 5-ARD? •           Can it be said, as advanced by the IAAF, that an athlete who has a female legal sex and a female gender identity nevertheless has a ‘male sports sex’? •           Did the athletes whose data were the subject of BG17 provide informed consent for those data to be used for the purposes of that study? •           Do women with a 46 XY DSD such as 5-ARD have an athletic advantage over other female athletes? •           If so, what is the magnitude of that advantage? 475.     The evidence on these questions was provided by a number of eminent experts in an array of scientific disciplines. The challenges made to the independence of some of those experts are rejected. The Panel is satisfied that each expert used his or her best endeavours to express their own genuinely held views. ... 476.     Some matters were not ultimately in dispute as between the experts called by the parties; some matters remained in dispute. ... D.     What is the role of testosterone in male/female sporting ability? 488.     The role of testosterone in determining sporting ability was a major focus of each party’s submissions and evidence. A fundamental feature of the Claimants’ case is that there is no single determinant in defining sex as male or female and no single determinant for sporting ability. In respect of the latter, the Claimants contend that natural genetic variation can provide many examples of enhanced athletic ability that has led to outstanding success for particular individual athletes or groups of athletes. 489.     It is accepted by all parties that circulating testosterone has an effect from puberty, in increasing bone and muscle size and strength and the levels of haemoglobin in the blood. After puberty, the male testes produce (on average) 7 mg of testosterone per day, while the female testosterone production level stays at about 0.25 mg per day. The normal female range of serum testosterone (excluding cases of PCOS [Polycystic ovary syndrome]), produced mainly in the ovaries and adrenal glands, is 0.06 to 1.68   nmol/L. The normal male range of serum testosterone concentration, produced mainly in the testes, is 7.7 to 29.4 nmol/L. 490.     The DSD Regulations require athletes with 5-ARD and athletes with other 46   XY DSD who wish to compete in the female category to reduce their testosterone levels to within the normal female range and to maintain those levels within that range. It is not in dispute that 5 nmol/L represents a level that no 46 XX woman would exceed (save for rare cases involving CAH [Congenital adrenal hyperplasia], which the IAAF intends to remove from the scope of the DSD Regulations, and potentially a small fraction of women with PCOS, who may occasionally have levels of testosterone marginally above that level). 491.     Testosterone may not be the only factor that results in an increase in lean body mass, higher levels of haemoglobin and increased sporting ability, but the expert evidence explains that it is the primary factor. ... 492.     There was ultimately no dispute among the parties’ expert witnesses that testosterone was at least a primary factor ... the overwhelming majority view was that testosterone is the primary driver of the physical advantages and, therefore, of the sex difference in sports performance, between males and females. 493.     Having considered all of the scientific evidence adduced by the parties, the Panel accepts this conclusion. E.     What is the role of DHT in male/female sporting ability? 494.     This question arose in the context of the scientific evidence concerning the effects of 5-ARD. Individuals with 5-ARD have the same levels of testosterone as normal adult males. They do not, however, have the same levels of DHT. The question, therefore, is what role (if any) DHT has on sporting ability and physical performance. As noted above, while there was a degree of agreement among the experts regarding certain DHT-related issues, they could not reach agreement concerning whether levels of endogenous DHT affect physical performance (and, if they do, what the magnitude of that effect may be). 495.     The Panel has carefully considered the evidence adduced by the parties’ experts on this point, which only came into focus at a relatively late stage in the proceedings. On the basis of that evidence, the Panel is unable to exclude the possibility that DHT may have some effect on physical performance and sporting ability. The Panel is satisfied, however, that such an effect (if it exists at all) is at most modest compared to the effect of testosterone. In reaching this conclusion, the Panel considers that while DHT is included in the World Anti-Doping Agency Prohibited List, the weight that can be attached to this factor is small in light of paucity of examples of exogenous DHT actually being used for performance enhancing purposes. 496.     The majority ... are satisfied that endogenous DHT has either no effect on athletic performance or, at most, has a modest effect, of a different order of magnitude to the effect of endogenous testosterone. F.     What are the main characteristics of an athlete with a 46 XY DSD (in particular 5-ARD)? 497.     [...] all 46 XY DSD such as 5-ARD are forms of genetic mutation that can affect testosterone levels. Individuals with 5-ARD have what is commonly identified as the male chromosomal sex (XY and not XX), male gonads (testes not ovaries) and levels of circulating testosterone in the male range (7.7-29.4 nmol/L), which are significantly higher than the female range (0.06-1.68 nmol/L). 498. &#xa