Switzerland's top court has ruled against two-time Olympic champion Caster Semenya, dismissing her appeal of a 2019 ruling by the Court of Arbitration for Sport that upheld a rule established by the IAAF, track and field's governing body, affecting female runners who produce testosterone at levels higher than other women.
The ruling likely ends Semenya's chance of defending her 2016 800m Olympic gold medal, as she has repeatedly said she would not submit to the IAAF rule.
"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 in a statement released by her representatives. "Excluding female athletes or endangering our health solely because of our natural abilities puts World Athletics on the wrong side of history. 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."
Semenya is a female competitor who is believed to have an intersex condition that causes her body to naturally produce testosterone at levels much higher than most women, and IAAF ruled that it gave her and other women with her condition an unfair advantage over other female competitors. The governing body instituted a new rule that required female athletes who wanted to run in only the 400m, 800m and 1500m events - Semenya's primary race distances - to lower their testosterone levels below a certain metric and maintain that reduced level continuously for at least six months before a competition.
The 2019 CAS ruling, agreed upon by two of three arbitrators after five days of testimony from experts in ethics, genetics, gynaecology and andrology, among other fields, rejected Semenya's appeal of the IAAF rule. CAS agreed that the rule was discriminatory in nature, "but the majority of the Panel found that, on the basis of the evidence submitted by the parties, such discrimination is a necessary, reasonable and proportionate means of achieving the IAAF's aim of preserving the integrity of female athletics," the court said in its executive summary.
On Tuesday, the Swiss Federal Tribunal ruled that CAS "had the right to uphold the conditions of participation issued for female athletes with the genetic variant '46 XY DSD' in order to guarantee fair competition for certain running disciplines in female athletics."
Semenya's legal representatives said the IAAF rule is overly invasive to the South African runner because it requires her to submit to unneeded medical procedures to compete.
"The Swiss Court dismissed the appeal despite finding that the World Athletics regulations seriously violate Caster's physical integrity because the required hormonal drug intervention is not medically indicated, has negative health effects and is not based on the athlete's free consent," the statement from the Norton Rose Fullbright law firm read.
Semenya, who won gold in the 800m at both the 2012 and 2016 Olympics and also has three world championships in the event, has refused to submit to procedures that would lower her testosterone. In March, she announced she would be switching to the 200m in order to circumvent the IAAF rule and compete at the Tokyo Olympics, which were postponed to 2021 by the COVID-19 pandemic.
According to the IAAF website, Semenya's personal-best time in the 200m is 23.81 seconds, about one second slower than the Olympic qualifying standard.