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 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 advocacy 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 Olympic industry players, particularly the IOC and international federations, from negative publicity as well as any serious legal consequences.
Developments in Worley’s case have the potential to challenge the IOC’s complacency.
In light of its track record, it is unlikely that the CAS would produce a decision that strengthened athletes’ rights or provided a fair outcome for Worley and other athletes like her.
But after struggling for more than 10 years to achieve justice for XY women in sport, Worley is satisfied that Canadian and international cycling organizations “have committed to help advocate for issues facing XY female athletes.”
The policy changes and advocacy initiatives agreed upon in her case may force the IOC and WADA to finally abandon dated thinking on sex and gender issues and look to 21st-century science to bring about fairness for XY women in sport.
Helen Jefferson Lenskyj has published extensively on women, sport, sexuality and the Olympic industry. Her next book will examine gender issues, athletes’ rights and the Court of Arbitration for Sport.
news@nowtoronto.com | @nowtoronto
Other cases that have brought the issue of gender in sport to the forefront in Canada
Justine Blainey, 1985: The 12-year-old Toronto hockey player successfully tried out for a boys’ hockey team, only to discover that the Ontario Hockey Association restricted its membership to male players. No problem: Ontario’s Human Rights Code prohibits sex discrimination, but a sub-clause stated that the code did not apply to female athletes, the thinking at the time being that differences in male and female physiology prohibited mixed sport, and that girls and women needed protection from bigger, stronger, male athletes.
Blainey’s subsequent lawsuit ended up in the Supreme Court of Canada, which found that the exclusion of sport/gender complaints from the Ontario Human Rights Code contravened the Canadian Charter of Rights and Freedoms. A significant milestone in human rights law, but it did not put an end to long-standing beliefs and stereotypes within the special realm of “sport law.”
Vancouver 2010 Winter Olympics: A group of women requested Vancouver’s Olympic Organizing Committee (VANOC) to include women’s ski jumping. The existing Olympic program only offered men’s events. Following mediation at the Canadian Human Rights Commission in 2008, the federal government and sport minister announced their support for the ski jumpers’ request, but the next sport minister claimed that the decision was up to the IOC. He was, in fact, correct, and, as some observers pointed out, it was naive to think that the IOC would respect Canada’s human rights policies.
In 2009, the group took the case to the British Columbia Supreme Court, arguing that the Olympic program that excluded women’s ski jump events violated the Charter. The judge agreed that VANOC was subject to the Charter since it was involved in a “governmental activity,” but concluded that, with the IOC having exclusive control over the program, VANOC itself had not breached the Charter. An appeal failed on similar grounds, and the Supreme Court of Canada refused to hear the case.
Some saw the outcome as a moral victory since the judge had confirmed that the organizing committee was not a private body, and that women’s exclusion was discriminatory. However, as always, the real moral of the story was that the IOC had the upper hand: the BC appeal court defined an Olympic event as a benefit conferred by the IOC, not by the Canadian government.
