Cyclist Kristen Worley takes on dated thinking on gender in sports
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.