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Introduction

in the European Court of Human Rights (鈥淓CtHR鈥� or the 鈥淐ourt鈥�) exposes a troubling truth: international sports law continues to police women鈥檚 bodies through oppressive regulations. While previous articles have explored the case鈥檚 and , this post argues that the ECtHR erred by dismissing Semenya鈥檚 claim as 鈥渕anifestly ill-founded.鈥� Although Justice Serghides , arguing that the forced choices imposed by the violated Article 3, his analysis falls short by not engaging with feminist perspectives that reveal the gendered power dynamics at work.

By sidelining feminist theory, the Court fails to address the structural and intersectional dimensions of Semenya鈥檚 oppression, undermining the full protective scope of Article 3. While Prof. Isabelle Rorive analyzed the case through a feminist lens in a 2024 workshop, academic literature integrating feminist critiques remains scarce.

This post first examines the context and implications of the DSD Regulations on Semenya鈥檚 rights. It then explores the necessity of integrating feminist theories into international sports law by challenging the rigid, binary sex/gender classifications and the so-called eligibility narratives. Finally, it advocates for a feminist reimagining of the judgment, which recognises and remedies the entrenched gender-based discrimination and broader human rights violations inherent in international sports law.

Context

The imposed to ensure fair competition in women鈥檚 events ostensibly have far-reaching consequences beyond the track. Athletes with naturally elevated testosterone levels have an untenable choice: either medically suppress their natural hormone levels or face exclusion from competition. Ostensibly, the aim is to ensure fair competition, but the reality is far more complex. By forcing athletes to 鈥渇ix鈥� their bodies to fit an arbitrary binary model of sex/gender, these rules reinforce outdated patriarchal standards that marginalise women who do not conform. The post uses sex/gender instead of sex or gender to the overlap between biological traits and socially constructed identities. This approach allows for a more comprehensive analysis of how the DSD regulations impact physical characteristics and societal perceptions of gender.

When Caster Semenya challenged these regulations, she that the imposed medical treatments and forced choices amounted to inhuman or degrading treatment under Article 3 European Convention on Human Rights (鈥淓CHR鈥�). Nevertheless, the ECtHR dismissed her claim, noting that she had not undergone such procedures and withdrew from her competitions instead. Justice Serghides dissented and argued that the DSD Regulations force Semenya into a forced 鈥渃hoice鈥� that inflicts severe psychological and physical harm and exacerbates her vulnerability. However, despite the rigour of his analysis, Justice Serghides did not engage with feminist perspectives.

Why is feminist (re)imagining needed?

Feminist judgments projects offer a robust framework for revisiting legal decisions and exposing hidden biases. argue that by applying a feminist lens to the same facts and legal materials, scholars reveal that judicial outcomes often depend on unstated assumptions about gender, race, sexuality, and other intersecting identities. This reimagining exposes how 鈥渘eutral鈥� legal rules can perpetuate inequity by ignoring the lived experiences of marginalised groups.

At its core, feminist reimagining challenges the myth of . Traditional judgments present themselves as inevitable resolutions, yet a feminist lens uncovers discretionary choices in fact-selection, precedent interpretation, and legal framing. Law is seen as a dynamic, interpretive process rather than a fixed set of rules.

Moreover, this approach broadens legal analysis beyond narrow, gendered frameworks, incorporating intersectionality to how overlapping forms of discrimination uniquely impact women, people of colour, and LGBTQ+ communities. By centring marginalised voices, a feminist reimagining confronts systemic biases and provides concrete examples of alternative, legally sound conclusions. Ultimately, it invites the legal community to adopt a more empathetic, inclusive, and self-reflective mode of judging that prioritises substantive equality.

Two Pre-requisites

A feminist reimagining of Semenya鈥檚 case requires us to reassess two narratives in international sports law.

Firstly, we need to reassess the . The DSD framework rests on an oversimplified, binary understanding of sex, ignoring the natural spectrum of human biology. and show that gender is not an inherent, fixed trait but a performance shaped by social and cultural contexts. A rigid binary lacks scientific validity and perpetuates compelling them to conform through invasive medical interventions.

Secondly, we need to reassess the . The International Association of Athletics Federations and have attempted to cloak the DSD Regulations in the neutral language of eligibility, claiming their focus is on competitive fairness without questioning an athlete鈥檚 sex or gender identity. This distinction, however, is a superficial one. It is a that cloaks the discriminatory forces at play. Butler鈥檚 critique reveals how these regulatory practices inflict performative violence on athletes like Semenya. The regulations are not neutral; they are deeply embedded in structures of power that govern whose bodies are deemed acceptable and whose identities are allowed to exist within the bounds of 鈥溾�� womanhood. This regulatory power through vague, subjective criteria like muscularity, voice pitch, and physical appearance, creating a system of surveillance that polices gender conformity while reinforcing discriminatory stereotypes.

A feminist reimagining exposes the inseparability of eligibility criteria from sex/gender classifications. If one鈥檚 eligibility is a result of how closely one conforms to the stereotypical understanding of one鈥檚 sex/gender, then the two cannot be analysed in silos.

Reimagining Semenya鈥檚 Case

Many feminist frameworks can be used to understand the harm imposed on Semenya. We make four key arguments.

Firstly, The DSD regulations typify what : exploitation, marginalisation, powerlessness, cultural imperialism, and violence. Semenya is exploited as her natural body is deemed unfit for competition unless medically altered. She is marginalised by being excluded from her sport and rendered powerless by policies that strip her of agency over her body. The regulations impose cultural imperialism by enforcing narrow Western norms of femininity, disregarding other gendered expressions and experiences. Finally, they inflict a form of systemic violence, both psychological and physical, by subjecting Semenya to invasive treatments and global scrutiny.

Secondly, drawing on , the forced suppression of Semenya鈥檚 natural testosterone levels robs her of control over her own body. This deprivation undermines her dignity and her right to compete on her terms. By mandating that she alter her natural state, the DSD Regulations send a message that her very existence is 鈥渓ess than鈥� acceptable, an intrusion that inflicts profound physical, emotional, and psychological harm.

Thirdly, using , we see that the DSD Regulations place Semenya in an impossible situation: either undergo invasive hormone treatment or be excluded from competition. This 鈥渇orced choice鈥� is not a neutral administrative measure but a manifestation of systemic power imbalances. It represents an exercise of control that echoes broader patterns of gender policing, reducing her autonomy and reinforcing entrenched patriarchal norms.

Lastly, reveals that Semenya鈥檚 oppression is compounded by her intersecting identities as a Black, lesbian, and intersex woman. The harm she endures is not solely about her testosterone levels or conformity to traditional femininity鈥攊t is also about how multiple forms of discrimination (race, gender, and sexuality) converge to intensify her marginalisation. The DSD Regulations exacerbate these vulnerabilities by enforcing narrow Western ideals revealing a broader cultural imperialism and exclusion system.

Conclusion

A feminist reimagining of international sports law is an academic exercise. It is a moral and legal imperative. Semenya鈥檚 case exposes how the DSD Regulations dehumanise athletes by forcing them into degrading choices that undermine their bodily autonomy and dignity. Our analysis shows that these regulations, rooted in an outdated binary understanding of gender, impose structural violence, and perpetuate systemic oppression, as revealed through the lenses of feminist theorists Young, Nussbaum, MacKinnon, and Crenshaw.

By challenging the narratives that conflate eligibility with conformity, we highlight how the so-called neutrality of international sports law masks deep-seated gender-based discrimination. Integrating feminist perspectives into legal interpretations is essential to uncovering these hidden biases and ensuring that human rights protections evolve alongside the complex realities of gender identity.

By not incorporating these feminist perspectives, the ECtHR missed an open goal to fully comprehend and address the nature of the Article 3 violations inflicted upon Semenya. Switzerland had the case to the , which held a on 15 May 2024. Meanwhile, on , a stricter version of the DSD regulations was enacted.

As we await the Grand Chamber judgment, the stakes for human rights and gender justice in sports have never been higher.\

Maitreyee Mane is a second-year B.A. LLB student at NALSAR University of Law, Hyderabad.

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Arnav Mathur听is a third-year B.A. LLB student at NALSAR University of Law, Hyderabad.

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