Trans trend­set­ter

Cy­clist Kris­ten Wor­ley takes on dated think­ing on gen­der in sports

NOW Magazine - - CONTENTS - By HELEN JEF­FER­SON LENSKYJ

Canada has had the dis­tinc­tion of gen­er­at­ing three high-pro­file le­gal chal­lenges that have brought in­ter­na­tional at­ten­tion to issues of sport and gen­der. The most re­cent, in­volv­ing trans­gen­der Toronto cy­clist Kris­ten Wor­ley, prom­ises to con­front the world of com­pet­i­tive sport at its high­est level: the In­ter­na­tional Olympic Com­mit­tee (IOC).

Last month, three of the sport’s gov­ern­ing bod­ies, the On­tario Cy­cling As­so­ci­a­tion (OCA), Union Cy­cliste In­ter­na­tionale (UCI) and Cy­cling Canada, agreed to “re­view and re­vise” their poli­cies on gen­der ver­i­fi­ca­tion and rules on the use of syn­thetic hor­mones for tran­si­tioned ath­letes, namely testos­terone. The sub­stance is banned as a per­for­mance-en­hanc­ing drug in sport, but in Wor­ley’s case, it’s a med­i­cal ne­ces­sity.

Wor­ley filed a com­plaint against the three or­ga­ni­za­tions with the On­tario Hu­man Rights Tri­bunal in June 2015. Last sum­mer, the tri­bunal ruled that her case had enough merit to war­rant a full hear­ing. On July 18, the par­ties set­tled Wor­ley’s claim after me­di­a­tion ef­forts agree­ing, among other things, to ad­vance the cause “to pro­mote in­clu­sive sport­ing en­vi­ron­ments” with in­ter­na­tional sports bod­ies, in­clud­ing the IOC.

Wor­ley’s chal­lenges be­gan when, as a com­pet­i­tive cy­clist who had tran­si­tioned from male to fe­male, she had a level of testos­terone in her blood sam­ple that ex­ceeded what was al­lowed for fe­male ath­letes. As a XY woman, hav­ing com­pleted all the steps re­quired by the IOC to com­pete as a woman, Wor­ley needed syn­thetic testos­terone be­cause her body gen­er­ated no testos­terone on its own.

Testos­terone is thought of as the “male hor­mone” and es­tro­gen as “the fe­male hor­mone,” but in fact, these hor­mones are pro­duced in both male and fe­male bod­ies, usu­ally in dif­fer­ent pro­por­tions. Re­cent re­search shows that the gen­der-re­lated dif­fer­ences in testos­terone lev­els are lower among ath­letes than non-ath­letes, and that there is over­lap be­tween the sexes.

This should not come as a sur­prise to sport sci­en­tists. Re­search as far back as the 1980s showed that male and fe­male ath­letes in the same sport shared sim­i­lar fit­ness lev­els, and nei­ther group re­sem­bled their seden­tary coun­ter­parts. In other words, testos­terone may be over­rated when it comes to ath­letic achieve­ment.

Wor­ley’s med­i­cal re­ports clearly showed that her body needed a cer­tain level of testos­terone for her over­all health. At lower lev­els, she suf­fered a num­ber of health prob­lems and train­ing for high per­for­mance sport be­came im­pos­si­ble.

In 2006, Wor­ley ap­plied for a ther­a­peu­tic use ex­emp­tion (TUE) for syn­thetic testos­terone to re­cover her health and re­sume train­ing. Ath­letes who med­i­cally re­quire a sub­stance that is on the World Anti-Dop­ing Agency’s (WADA) pro­hib­ited list may ap­ply for this ex­emp­tion, which Wor­ley even­tu­ally re­ceived in 2009.

How­ever, sub­se­quent health prob­lems led her med­i­cal team to rec­om­mend in­creased syn­thetic testos­terone. When she ap­plied for an up­dated ex­emp­tion, she was sub­jected to in­va­sive gen­der ver­i­fi­ca­tion test­ing above and be­yond WADA’s usual re­quire­ments.

Wor­ley con­tin­ued with the higher level of syn­thetic testos­terone, and, in the process of re­new­ing her an­nual OCA mem­ber­ship and UCI li­cense, re­quested an ex­emp­tion from the sec­tion on UCI anti-dop­ing reg­u­la­tions, on the grounds that they did not take into ac­count her health sta­tus and hor­monal re­quire­ments as an XY woman.

As her ap­pli­ca­tion to the On­tario Hu­man Rights Tri­bunal claims, “the poli­cies, guide­lines, rules and pro­cesses sur­round­ing XY fe­male ath­letes, gen­der ver­i­fi­ca­tion and ther­a­peu­tic use of re­quired hor­mones” gen­er­ated by WADA and the In­ter­na­tional Olympic Com­mit­tee, and en­forced by in­ter­na­tional and na­tional sports gov­ern­ing bod­ies, vi­o­lates the hu­man rights of XY fe­male ath­letes.

As a re­sult of last month’s set­tle­ment, the OCA and Cy­cling Canada have also an­nounced that they would ad­vo­cate for stan­dards “based in ob­jec­tive sci­en­tific re­search” and for in­di­vid­u­al­ized ther­a­peu­tic use ex­emp­tions to be con­ducted by med­i­cal ex­perts. And to so­licit rel­e­vant Cana­dian sports gov­ern­ing bod­ies to con­vey these ad­vo­cacy mes­sages to the IOC, WADA and other in­ter­na­tional or­ga­ni­za­tions. The UCI sup­ported the advo- cacy cam­paign.

Crit­ics have long pointed out that the IOC and in­ter­na­tional sports fed­er­a­tions are not bound by in­ter­na­tional treaties, laws or ju­di­cial bod­ies – in other words, they are law unto them­selves.

In 2011, a prom­i­nent UK lawyer, Michael Beloff, said, “Ren­der unto sports the things that are sport, and to courts the things that are le­gal.” He was speak­ing in sup­port of the Court of Ar­bi­tra­tion for Sport (CAS), of which he was a mem­ber. The CAS, which is a tri­bunal, not a court, was set up by IOC pres­i­dent Juan An­to­nio Sa­ma­ranch in 1984 to en­sure that ath­letes could no longer chal­lenge the IOC or in­ter­na­tional sports fed­er­a­tions in their do­mes­tic courts. Ex­cept for very lim­ited “due process” grounds, there is no route to ap­peal CAS de­ci­sions.

All ath­letes must sign con­tracts with in­ter­na­tional fed­er­a­tions that in­clude a clause restrict­ing their le­gal op­tions to the CAS. They are forced to for­feit their rights to ac­cess do­mes­tic courts in or­der to be el­i­gi­ble to com­pete in in­ter­na­tional sport­ing com­pe­ti­tion.

Dis­putes that ath­letes bring to the CAS rarely re­ceive much pub­lic or me­dia at­ten­tion un­less they take place dur­ing the Olympics or in­volve pro­fes­sional ath­letes. The “im­mu­nity” that Sa­ma­ranch de­manded when he set up this “supreme court for world sport” has largely suc­ceeded in pro­tect­ing

Kris­ten Wor­ley’s chal­lenges with cy­cling gov­ern­ing bod­ies be­gan when she tran­si­tioned from male to fe­male.

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