The participation of female athletes with variations in sexual characteristics (VSC) and trans female athletes in female sport is an issue that raises strong feelings and opinions. It seems to have become somewhat of a lens through which wider concerns and perspectives about the binary reality of sex are magnified and disputed. In such an environment, there seems to have been an increasing trend towards more restrictive regulation of participation of such athletes by sport’s governing bodies (SGBs). For example, the recent reaction of some UK SGBs to the decision of the Supreme Court in For Women Scotland Ltd v The Scottish Ministers (Supreme Court, 2025) was to immediately prohibit trans female athletes from participating in female competition (The Football Association, 2025; The England Cricket Board, 2025). The increasingly restrictive approach to permitting access to sport for athletes with VSCs with little additional justification was also a point raised by one of the third-party intervenors in Grand Chamber hearing, which is the focus of this article (ECtHR, 2025, para. 183).

Yet it was only in July 2023 that the ECtHR recognised the need for Switzerland, as the seat of the Court of Arbitration for Sport (CAS), to ensure appropriate safeguards for the protection of the human rights of an athlete with a VSC who was faced with restrictions on their ability to compete (Semenya v Switzerland, ECtHR, 2023).1 Moreover, in that judgment the majority made critical observations both about the lack of scrutiny that the Swiss Federal Supreme Court (SFSC) had undertaken in reviewing the decision of World Athletics (WA) to introduce the DSD Regulations, and, by extension the decision of WA itself (Cooper, 2023(b)). Given the case also raised important wider issues concerning the role of the SFSC and Switzerland as a protector of human rights in a sporting context, the suitability of the sporting justice system as currently realised as well the governmental autonomy of International Sporting Federation (ISFs) and SGBs more generally, it was not surprising that the Swiss government made an application to have the case reconsidered by the Grand Chamber. It seems likely that the wait for the final decision of the Grand Chamber has muted the influence and impact of the original judgment of the Third Section and, perhaps, contributed to the more restrictive approaches of SGBs. In any event, a full two years later, the Grand Chamber has finally handed down its judgment, representing the end of Caster Semenya’s legal journey and, possibly, some increased clarity about the requirements of substantive human rights norms when they clash with sporting regulation.

This article won’t recite the background to the decision or the introduction of the DSD Regulations, since a great deal has been written on this (Holzer, 2020; Kakarzis et. al., 2018; Krech 2017 & 2019; Cooper, 2019). However, it is worth remembering that the DSD Regulations were introduced by the IAAF to ensure fair competition within the female category and that they ultimately required affected athletes to make a choice between undergoing permanent surgery or taking medication to reduce testosterone levels or stopping competing in the events covered by them. This was in the context of disputed evidence about what advantage those affected athletes actually enjoyed over ‘typical’ females and with very little evidence of the impact of medication on those with VSCs. Before turning to the Grand Chamber decision, it is worth highlighting the key aspects of the earlier decision of the Third Section.

One particularly significant aspect of the Third Section’s majority judgment2 was recognition that the positive obligations of Switzerland, as the seat of the Court of Arbitration for Sport, extended to the protection of substantive Convention rights of athletes (in the case, Article 8, Article 14 and Article 13), despite the fact that Switzerland had no direct control over the sporting regulations at issue and the applicant, Caster Semenya, had no particular connection to Switzerland. The DSD Regulations were created by the IAAF, a legal entity domiciled in Monaco, over which Switzerland had no direct influence. The athlete’s only connection to Switzerland was that she had (and might again) compete there. This was, arguably, a significant extension of the court’s principles recognising when the obligations of states arise outside of acts within their territory. This somewhat controversial extension was primarily justified by reference to the forced nature of sporting arbitration, the limited forums for accessing justice that result, and, ultimately, the possibility that failure to accept jurisdiction would result in ‘an entire category of persons’ being ostracised from the protection of the Convention, something irreconcilable with its fundamental nature (ECtHR, 2023, para. 111).

Regarding the merits of the case, the Third Section found that there had been a breach of Article 14 in conjunction with Article 8 (discrimination as to private life) and Article 13 (lack of remedy). Put simply, Switzerland had failed in its positive obligations to prevent discrimination within its jurisdiction because the ‘institutional and procedural safeguards’ represented by the SFSC oversight of CAS judgments lacked rigour (ECtHR, 2023, para. 166). Specifically, the SFSC had failed to sufficiently consider the extent and nature of the different interests at stake nor the contextual factors relevant to sports governance3 and the sporting justice system.4 As a result, it had failed to undertake a genuine balancing assessment that provided rational and transparent reasons and considered relevant ECtHR case law, and in so doing, had presumably failed to guide the CAS on the need to do so. The conclusion on access to remedy followed. In the eyes of the majority, the sports justice system as realised provided only a theoretical access to justice in human rights cases. This was insufficient and access needed to be real and practical (ECtHR, 2023, para. 194–195). The system needed to ensure a sufficient intensity of review so that decisions of CAS arbitration panels (and SGBs) are more than minimally rational (ECtHR, 2023, para. 233).

The voluntary nature of arbitration is a major reason justifying exempting arbitral decisions from the need for close scrutiny by domestic courts. In essence, by agreeing to submit to a private mechanism for ascertaining legal rights and obligations, parties choose to waive their right to insist on a rational basis for decision making. It is suggested that this is what underpins such a traditionally narrow understanding of what ‘offends the public policy’ of Switzerland under PILA and the extremely narrow basis of the SFSC’s resulting review. The traditional perspective in a sporting context seems to have been that an athlete’s choice as to whether to participate in the sport at all is sufficient ‘agreement’ to have legal rights and duties resolved in this way; like any other sporting rule, athletes can simply walk away if they don’t like it. However, as argued previously in the context of elite athletes, such a choice is largely illusory: by the time athletes have invested sufficient time and effort to get to the pinnacle,15 the time to ‘choose’ has been and gone (Cooper 2023(a)). Not surprisingly, in the author’s opinion, the Grand Chamber has followed the Third Section in recognising that such a justification does not have anywhere near the same force in a sporting context and is insufficient to warrant such a ‘light touch’ approach. Accordingly, it seems clear that for Switzerland to fulfil its Article 6 obligations in respect of arbitration involving sport and human rights in the future, the SFSC will have to embrace a wider understanding of what it means to ‘offend the public policy’ of Switzerland.

In commenting on the decision of the Third Section, this author suggested that a major focus of any reference to the Grand Chamber would be on concerns about increasing the scope of the ECtHR’s jurisdiction beyond rights to a fair trial in arbitration cases. However, it was also suggested that it would be difficult for the Grand Chamber to ignore the underpinning problem of forced choice when it results in a whole category of people having reduced protection of fundamental rights (Cooper, 2023(b)). By recognising what appears to be new understanding of the meaning of a right to a fair trial specific to a sport and human rights context, the ECtHR appears to have grasped for a pragmatic solution that speaks to both concerns. The result is to demand a more intensive approach to the scrutiny of the decisions of SGBs and ISFs where they impact fundamental rights of athletes. In this respect, it closely resembles the outcome of the Third Chamber judgment, although reached by a different route and backed by a much larger majority of the court.16 Given that most of the relevant convention rights are qualified, providing scope for infringement justification, it is suggested that this will involve a lot of ‘heavy lifting’ for the doctrine of proportionality.17

Whilst four judges in the Grand Chamber questioned the majority’s refusal to consider Miss Semenya’s substantive right claims (ECtHR, 2025, pp. 113–116), it is suggested that at the heart of such concerns is ensuring athletes complaints are taken seriously and are ’heard’. In this regard, what seems crucial is the future role of the SFSC in ensuring that a sufficiently intensive review of the proportionality of the original decision of the ISF or SGB has been conducted by the CAS panel. As the author has previously argued, perhaps prematurely in relation to the decision of the Third Section, the base line for rational explanation and justification of decision making would appear to have increased (Cooper, 2023 (b)), a point that seems to have now been reinforced by the Grand Chamber decision.

What is conspicuous by its absence from the Grand Chamber decision was any detailed or systematic guidance on how to assess the appropriate intensity of the proportionality analysis in a given case or what that assessment means for the analysis that follows. For example, regarding the first of those concerns, it does not seem totally clear from the judgment whether the majority was suggesting a particularly rigorous examination is now the default position in all forced sports arbitration or whether the particularly significant interferences with core human rights caused by the DSD Regulations was a special case and whether, in cases where rights infringements speak less clearly to the core values of the convention, a less intensive approach would be appropriate.

Regarding the second, other than to recognise the CAS applied broadly similar criteria to those used by the ECtHR in discrimination cases, there was little analysis of the SFSCs or the CAS panel’s approach to the proportionality analysis. There was no systematic consideration of whether the SFSC had scrutinised CAS’s reasons for accepting the aim of the regulations was legitimate, whether the regulations could achieve the aim, and whether the solution employed to achieve fair competition was necessary and, overall, proportionate. Instead, the judgment focussed on individual aspects of the CAS decision that the majority felt needed more careful thought by the SFSC with no real reference to the framework of the proportionality doctrine. Consequently, there was little in the way of a blueprint offered as to how to provide a coherent, systematic and transparent approach to the whole question of proportionality in a sport and human rights context more generally.

Moreover, there was some less than helpful, slightly contrary views expressed. For example, at the outset of its assessment the court seemed to be at pains to make clear that Article 6 cannot result in the ECtHR dictating to domestic courts how to assess evidence and what weight to give to different factors in a particular case, nor lay down rules about the burden (and presumably the standard) of proof (ECtHR, 2025, para. 193). If this is true, then there is a danger that a proportionality analysis might well amount to simply ensuring that relevant factors have been considered, a situation that does not sit easily with a ‘particularly rigorous examination’. In contrast, later in the judgment the majority seemed to suggest that although the SFSC and the CAS had considered the human rights consequences on the athlete, it had not accorded sufficient weight to the severity of the infringements from the athlete’s perspective (ECtHR, 2025, para. 236).

It is argued that in highlighting the problematic specificities of the sports governance and justice environment which it did, the Grand Chamber was recognising the need for an approach that is especially protective of athletes as a potentially vulnerable group and, possibly, of athletes with VSC’s as an even more vulnerable sub-group. Yet, its rather peripheral consideration of proportionality feels like a good deal of scope has been left for reinterpretation of what a ‘particularly rigorous examination’ entails in practice. The real danger is that it will take another athlete to stick their head above the parapet and a further seven years of legal wrangling to get further clarification. In the meantime, SGBs and ISFs may well move the goalposts by altering the regulations once again.

The end of Caster Semenya’s lengthy legal battle has ultimately resulted in a victory, all be it one that provides little benefit for her directly. As evidenced by making no claim for damages, her perseverance has been in pursuit of better treatment for others at the hands of ISFs and the sports justice system and, ultimately, to allow others in her position to realise their potential, an opportunity she has been denied (ECtHR, 2025, para. 241). The key question, of course, is what influence the victory will have ‘downstream’ on the future approaches of the SFSC, the CAS and ultimately ISFs and SGBs. In addition to concerns over the meaning of a ‘particularly rigorous examination’, this will depend to a large degree on how complaint the SFSC and the CAS are in implementing more stringent scrutiny and whether they are competent to do so. In this respect, it should be noted that the court was asked to consider underlying concerns about the independence of the CAS, but unfortunately such concerns were largely brushed under the carpet by Grand Chamber.18

As indicated in the introduction, the effect of Third Section decision has been largely negligible. It will be interesting to see whether the Grand Chamber decision will have any more impact, or whether the distance between ISFs and the judgments of the ECtHR both in terms of time and legal accountability is enough for any downstream effects to remain rather muted.