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Commentary: The human rights case that could change global cycling

While the eyes of global cycling were focused on the Tour de France this past July, the Union Cycliste Internationale (UCI) found itself in a small Toronto courtroom, as one of the defendants opposite a little-known Canadian track cyclist named Kristen Worley. As a result of that under-reported hearing, the UCI faced the possibility of losing its Olympic charter and its oversight of global cycling. Worley may turn out to be the one of the most influential cyclists of the last decade, but few people, even within the sport, know or understand the implications of her story.

The specifics of Worley’s background and current situation have been thoroughly documented elsewhere (here, here, and here), but the short story is that Kristen Worley was born male. A talented runner and cyclist early in her life, Worley made her mark in water-skiing at the international level, and then switched her focus to competitive track cycling as a late teenager. After a crash left her with a broken pelvis in 1998, Worley began her gender transition during the recovery period and, after a five-and-a-half year transition, had gender reconfirming surgery in 2002. Her competitive instincts soon returned and she set a lofty target – attempting to represent Canada in track cycling at the Olympics, as the first-ever openly gender-transitioned Olympian. But just as she seemed ready to blaze a new trail in international sports, she was stopped dead-cold by arbitrary International Olympic Committee (IOC) gender testing rules.

The IOC had adopted a policy recommendation (in 2003) to allow post-operative, gender-transitioned athletes to compete in the Olympics, but Worley became the first athlete to actually have to suffer through the IOC’s untested review process. Her gender testing occurred twice: the first, in 2005, involved nine men at one time, who were given authority to assess and verify her gender even though none of them had formal expertise to scientifically do so. Worley was examined again in 2008, when she applied for a Therapeutic Use Exemption (TUE) to continue her hormone replacement therapy.

In addition to these degrading physical examinations, her medical files were subjected to extreme scrutiny by the World Anti-Doping Agency (WADA), who, Worley’s attorneys argue, were neither experienced nor qualified to assess gender transition issues. The TUE became a critical factor in Worley’s case, and more importantly, her health. Worley had started medically-mandated hormone replacement following her gender transition – a necessity because her transitioned body no longer produced testosterone or sufficient levels of estrogen. But to add insult to injury, Cycling Canada would not approve a TUE for the proper balance of estrogen and testosterone required to maintain her unique physiological health.

The IOC’s 2003 gender identification rules attempted to define “men” and “women” based partially on a subjective threshold of natural testosterone in the body. In reality however, scientific analysis shows that testosterone levels vary widely in both sexes. This has led to one of the most sexist paradoxes in sport: a male athlete with a high natural testosterone level is labeled as “gifted”, but a female athlete with a high natural testosterone level is labeled as having an unfair “performance advantage” – a cheat.

But a chance oversight by Cycling Canada turned into an opportunity for Worley; she had by accident never signed her racing license, which would have constrained her legal options. This allowed her to go outside of the sport’s normal appeal channels. She and her legal team were now in a position to challenge what they believed to be the IOC’s Achilles’ heel: the IOC’s gender testing policy had little science or background research to support it, yet it was being enforced by sporting federations around the world. So Worley’s team took a leap, and made the argument that the application and enforcement of this policy – on anyone – constituted a violation of human rights.

Worley’s unique circumstances allowed her attorneys to move outside of the traditional sport legal structure and, for the first time, put an Olympic-chartered sport and its policies under scrutiny in a court of human rights – in this case, the Tribunal for Human Rights in Toronto, Canada. If Worley prevailed, the UCI and the IOC would be faced with a precedent which might then allow other athletes to step outside of the traditional process as well. This would obviously have had huge ramifications for the IOC and its member sports, not only for gender testing, but also for anti-doping and a wide range of other eligibility cases.

The IOC reacted quickly, claiming the Canadian courts did not have jurisdiction, but Worley’s legal case was nevertheless heard in mid-2017 by the Tribunal. The evidence presented by Worley and her legal team was strong and clear-cut, and it pushed the IOC and UCI into a corner: they would likely lose the case outright if they could not provide the scientific rationale and evidence to back their gender definition and TUE assertions. The IOC’s gender testing policy would then have been ruled a fundamental violation of human rights and opened the legal floodgates.

In light of the situation, the UCI ultimately decided to circumvent a potentially devastating legal judgment by agreeing to a court-specified mediation process. One condition of the mediation process was that Worley herself be involved with the UCI’s efforts to craft new gender rights statutes for competitive cycling.

Now, with new President David Lappartient at the helm of the UCI, there is a unique opportunity for cycling to tackle this challenge head on, and indeed to chart a new course for the international Olympic movement. If Lappartient can steer the UCI toward a fair gender inclusion solution, it could position cycling as a human rights leader within the Olympic sports movement. While it is still very early in the process, Worley and Lappartient’s UCI have already begun to engage in productive dialogue, to achieve the following goals:

● Review and revise internal policies to embrace basic human rights
● Launch awareness and education programs related to the diversity of participants
● Advocate for the establishment of standards and guidelines related to XY female athletes based on objective scientific research
● Advocate for individualized Therapeutic Use Exemptions (TUE) conducted by medical personnel who possess detailed subject-matter expertise
● Ensure that Canadian Centre for Ethics in Sport, Canadian Olympic Committee, Sport Canada, Commonwealth Games Federation and the Canadian Minister of Sport advance this advocacy message to international bodies such as WADA and the IOC

For Worley, the legal process and the potential to change cycling for the better is vindication for the pain and suffering she endured over the ten years it took for her case to be heard. For the UCI, it represents the possibility of becoming the first Olympic sport to embed fundamental human rights into its policies and regulations. Although it is not out of the woods yet, the UCI has very strong incentives to work out a solution.

Despite all of the emotional trauma and the continuing legal ordeal, Worley remains committed to cycling and is an avid cyclist today. She has also been advising other sports and organizations within cycling on gender rights for over a decade, with a focus on education, inclusion and accessibility of everyone in the world of sport.

Says Worley, “This is really not about gender anymore, but about how we do sport. Instead of focusing on the simplicity of defining the sexes, it is imperative for us to understand the broader umbrella of features and physiological complexities that we all share as human beings. As our world becomes more intertwined with the help of technology we must embrace the ideas of diversity, inclusivity and accessibility. And we can make this part of our vision for sport – the ideal that we all seek, and what we want the Olympic Movement to be.”

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