Nottingham Trent University (NTU) women are experts in their fields, and often get called upon to give their opinion on important global issues. NTU Nottingham Law School Associate Professor Seema Patel has spoken to Reuters about the legal battle of Double Olympic 800 metres champion, Caster Semenya, towards competing at Paris 2024. 

Caster, who suffers from differences in sexual development (DSDs), has been involved in a legal battle over World Athletics regulations that stop her from running unless she medically lowers her natural testosterone levels.

A high stakes case 

The challenge has been going for many years, with Caster losing cases Court of Arbitration for Sport (CAS), sport's highest court, and the Swiss Federal Tribunal (SFT). Caster since approached the European Court of Human Rights (ECHR) in February 2021, which ruled in a verdict of 4-3, that the athlete should be given a new chance to challenge the medical requirements. 

In a statement, the ECHR said: "The Court found in particular that the applicant had not been afforded sufficient institutional and procedural safeguards in Switzerland to allow her to have her complaints examined effectively. The high stakes of the case for the applicant and the narrow margin of appreciation afforded to the respondent State should have led to a thorough Institutional and procedural review, but the applicant had not been able to obtain such a review."

A critical moment for inclusion 

Discussing with Reuters how the small win put Caster no further to competing, Professor Seema Patel said it was 'monumental' nonetheless. 

"This is a critical moment for inclusion, gender identity, human rights and anti-discrimination. It signals the value of human rights in sport and the need to balance competing interests fairly and responsibly," Professor Patel told Reuters. "Since our introduction to Semenya in 2009, the landscape has shifted and our understanding of gender, inclusion, human rights and fair competition has progressed. Yet there is still more to be done, and the judgment will contribute to the multi-disciplinary body of research emerging in this field."

Professor Patel continued that it shows the ECHR may intervene in sport discrimination matters - while CAS was once the final arbiter in such matters, now there are several other steps plantiffs can take. 

A pressing need for human rights standards

According to Professor Patel, discrimination in sport and the rights of athletes is a central feature of current sport, law, and society discourse. "A momentous clash has emerged between the traditional rules, practices and culture of sport, the growing awareness of diverse and marginalized identities, and the pressing need for human rights and anti-discrimination benchmark standards in sport.

"The case of South African sprinter Caster Semenya sits at the intersection of this critical moment for inclusion and exclusion and emphasizes the struggle to balance the competing interests of the marginalized athlete, sports governing bodies as the regulator, and participants in sport."

Inclusion and exclusion in competitive sport

Professor Patel has a PhD in sports law, specifically discrimination and the regulatory balance between inclusion and exclusion in competitive sport. She is an international expert on gender discrimination in sport, and has offered extensive media commentary on the legal implications of gender eligibility rules.

Her recent academic publications examine the regulatory gaps in the protection of athletes’ human rights in sport. She has been involved in sport policy in this field and has also contributed to government consultation on inclusion and participation in sport.

Read the article in full. 

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