SII Focus 26th May 2017

Sport’s longest injustice scheduled for demolition

In a small room within the Human Rights Tribunal of Ontario on 24 May, Canadian cyclist Kristen Worley began the process of correcting what could be the biggest and longest-running injustice in sport. In its attempt to fit all athletes into ‘male’ and ‘female’ categories, sport has for the last 40 years prevented athletes born ‘male’ transitioning to become ‘female’ from competing, based on a perception that they will enjoy a performance advantage.

The only problem is that sport hasn’t done its science homework. No such advantage exists.

Worley has used science to prove this to be true, as The Sports Integrity Initiative has previously reported. A lot is at stake, as regulations based on the myth that Worley is challenging have damaged so many people. That is why Worley has persisted with her case. To ensure that other athletes to not have to suffer the abuse that she has.

Holding sport to account for its unfair treatment of her in an appropriate court has been no mean feat. It has taken Worley over ten years to get to this stage. Sport has continually attempted to shoehorn Worley’s case into its own legal arbitration system, headed by the Court of Arbitration for Sport (CAS). Worley has resisted these attempts, as she views her treatment as a violation of her human rights which is unconnected to sport.

The Human Rights Tribunal of Ontario agrees. The CAS was set up to resolve ‘disputes directly or indirectly related to sport’, however Worley’s case is a human rights issue.

As this brief outline illustrates, a lot is at stake. Sport wants to avoid setting a precedent where such a route is opened to other athletes. This is perhaps why sport has attempted to create diversions in order to lead the debate away from the issues involved. “They never thought that I’d continue to fight”, said Worley ahead of the mediation hearing. “They never thought that I’d get them to court”.

Worley’s case

Worley is an XY male that has transitioned to become an XY female. In the winter of 2009, after transitioning from male to female, Worley applied for a therapeutic use exemption (TUE) to use synthetic testosterone, based on hypogonadism secondary to gonadectomy. She had previously asked Cycling Canada if she was eligible to compete, after the International Olympic Committee (IOC) released the 2003 Stockholm Consensus (PDF below).

Worley was the first athlete in Olympic sport and world cycling to be tested under the IOC’s new policy. It mandated ‘that individuals undergoing sex reassignment from male to female after puberty (and the converse) be eligible for participation in female or male competitions, respectively, under the following conditions:

• Surgical anatomical changes have been completed, including external genitalia changes and gonadectomy
• Legal recognition of their assigned sex has been conferred by the appropriate official authorities
• Hormonal therapy appropriate for the assigned sex has been administered in a verifiable manner and for a sufficient length of time to minimise gender-related advantages in sport competitions’.

Over the next three years, Worley and her medical team were repeatedly asked to provide medical information to support the requested TUE. She eventually withdrew from cycling competition in early 2009, as she had found that the levels of synthetic testosterone she was permitted to take under the TUE were not enough to support her basic health.

“My TUE took ten months to grant”, explains Worley. “It should have taken less than three weeks. I was gender tested all over again. They asked me questions and requested personal information that far exceeded the requirements for a TUE. Once receiving my TUE, the Canadian Centre for Ethics in Sport (CCES) required me to be tested every two months, abrogating World Anti-Doping Agency (WADA) standards of a maximum of two tests per year. This kept me in a severe post-menopausal state, affecting my health and – inevitably – drastically affected my ability to train and maintain any form of adequate health to participle in elite cycling.”

Chromosomes & science

As previously mentioned, Worley was born as an XY male that has transitioned to become an XY female, because of converging cross-gender issues. There are a number of different possible chromosome combinations that fall within the binary definition of ‘male’ and ‘female’. However, whilst you can change your sex, you cannot currently change the make up of your chromosomes.

“The IOC simply assumed that somebody born XY male transitioning to XY female would have a performance advantage over somebody who is born XX female”, explains Worley. “There is no scientific research to support this. Neither the IOC, WADA, not the UCI have ever been able to provide evidence supporting their policy.”

The reason that sport assumed that XY females would have an advantage is down to testosterone. Elevating testosterone above the body’s natural (endogenous) level is judged to be performance-enhancing, as it is thought to allow the athlete to build more muscle than their natural body would ordinary produce. This is why administration of external (exogenous) testosterone is banned. However, there is no evidence that allowing an XY female to take synthetic testosterone to maintain the natural levels of endogenous testosterone that their gonadectomy (removal of testicles) has removed offers any performance advantage at all.

At this point, it is important to point out that testosterone is not exclusively a male hormone. It is produced by both males and females in the testicles and ovaries (and also in the adrenal glands), however males need to produce it in higher quantities as they have XY androgen receptors. XX androgen receptors are highly sensitive to testosterone, requiring much less testosterone to equate the same level of health. However, both male and female elite athletes also produce testosterone in higher quantities than the ‘normal’ population, and there is also a significant amount of overlap between testosterone levels in male and female elite athletes.

The maintenance of endogenous testosterone levels is essential to basic health in both men and women. An XY male who transitions to XY female has had their major source of endogenous testosterone (the testicles) taken away, so needs to take synthetic testosterone in order to maintain basic health.

The US University of Rochester’s online medical library states that the normal ‘male’ range for testosterone is between 9.7nmol/l and 38.1nmol/l; and between 0.5nmol/l and 2.4nmol/l for ‘females’. The US government’s National Library of Medicine agrees with the University of Rochester’s ranges with regards to ‘women’, but puts normal ‘male’ levels at between 10.4 nmol/l and 34.7nmol/l. So individuals with XY chromosomes need a higher level of testosterone those with XX chromosomes to maintain basic health, due to their androgen receptor response.

As these analyses show, these levels can vary with age, but also due to occupation. A 2014 study, ‘Endocrine profiles in 693 elite athletes in the post-competition setting’, found that 16.5% of the ‘male’ athletes had low testosterone levels, and 13.7% of the ‘females’ had high testosterone levels, ‘with complete overlap between the sexes’.

The report concluded: ‘The IOC definition of a woman as one who has a ‘normal’ testosterone level is untenable’. In other words, elite athletes have testosterone levels that differ widely from those that might be considered ‘normal’ in the general public population.

“We know that the testosterone levels of high-performance female athletes go up from years of competing that this makes conception during competition or after retirement very hard, until those bodies come back to their natural state to be able to conceive a child”, explains Worley. “That’s very common”.

“We also know that an XY chromosome body takes six to eight times the level of testosterone to equate the same levels of ‘health’ as somebody who is XX”, Worley continues. “This is completely separate to the body’s sex”.

The problem has been that sport failed to realise that XY women continue to need XY levels of testosterone in order to maintain basic health following transition. Instead, it required XY females to peg their testosterone levels to the much lower XX female levels, due to the myth that XY females would enjoy a performance advantage due to their extra endogenous testosterone.

In effect, sport was blinded by its history with exogenous testosterone, which has historically been used to enhance performance. This requirement to drop their natural, endogenous testosterone levels to XX female levels is what has physically harmed Worley and others.

“This is where everybody got it wrong and continues to get it wrong”, explains Worley. “We are the only athletes in the world that can medically illustrate, physiologically, how the body breaks down over time and what happens to the human physiology when testosterone values get down to a certain level or is removed, and the body is no longer able to generate any hormones. For all other athletes that have been discussed in this space, their testosterone levels are their ‘normal’, and they are healthy.”

Worley’s TUE required her to keep her testosterone levels below those that were required by her XY body. The amount of testosterone permitted by her TUE were set below the average range for XX females at 0.5nmol/L, even though the normal testosterone range for non-athletic XX females is 0.52nmol/L to 5.6nmol/L. This induced ‘complete hormone deprivation’ in Worley.

Testosterone has over 200 different functions in the human body, and its removal caused Worley a number of serious health complications, as The Sports Integrity Initiative has previously reported. For example, as well as removing the body’s ability to regulate itself and inducting menopause, Worley endured complete muscle atrophy (failure of muscle development and recovery), making sport impossible.

Far from removing the competitive advantage that sport claimed Worley held, sport’s regulations removed her ability to compete in sport completely, and damaged her health. And she was far from alone.

“The XY females, when they transition, are the only ones that are put into spontaneous menopause”, explains Worley. “This has over 24 different complications concerning the human physiology. When an athlete goes down to zero, the impact is massive. I can tell you that at 9.6nmol/L, I go into spontaneous menopause. The value of 10nmol/L, which the rules are suggesting, is impossible. It’s like comparing apples to oranges.”

Apples and oranges

Worley is unique in that she has persisted with her case, despite the considerable financial cost and the length of time it has taken making a return to elite sport near impossible. However, she has not been the only athlete to suffer.

Renée Richards was denied entry to the 1976 US Open by the United States Tennis Association (USTA), after transitioning from an XY male to an XY female. She disputed the policy and in 1976, the New York Supreme Court awarded that the tennis authorities had violated the New York Human Rights law. She was granted an injunction allowing her to compete in the US Open. Yet despite this, sport’s approach to the issue continued, unabated.

María José Martínez-Patino was asked to withdraw from the 1985 World University Games in Kobe, Japan, after the results of a buccal smear test revealed she had an XY chromosome pattern. She had no prior knowledge of this. Although she is and has always been an XY female, erroneous suggestions that she was somehow ‘male’ caused her to withdraw from sport.

She later successfully challenged her exclusion after it was found that she had Androgen Insensitivity Syndrome (AIS), which means that her body cannot absorb the extra testosterone, which is why she developed as a female. Indian athletes Shanthi Soundarajan and Dutee Chand have the same condition.

Soundarajan was stripped of a 2006 Asian Games silver medal after failing a gender test. The experience has destroyed her life. Without the financial support system that sport had offered her, Soundarajan was forced to return to the poor, remote Indian village where she was born, only to find herself an outcast.

In 2007, she attempted suicide by ingesting a veterinary poison. She returned to work at a brick kiln, sleeping in a makeshift hut, again attempting suicide in 2013. She gained a coaching qualification in 2014, after the Indian Sports Ministry agreed to fund her education. She has now started her own athletics foundation in Tamil Nadu, to specifically train Tamil youth.

Dutee Chand

Chand was banned in July 2014 after the Athletics Federation of India (AFI) found that her testosterone levels were above the 10nmol/L permitted by the International Association of Athletics Federations’ (IAAF) Regulations Governing Eligibility of Females with Hyperandrogenism to Compete in Women’s Competition (PDF below). This exclusion prevented her from competing at the Glasgow 2014 Commonwealth Games.

‘The high androgen [testosterone] level produced by my body is natural’, wrote Chand at the time. ‘I have not doped or cheated. If I follow the IAAF guidelines, I will have to undergo medical intervention in order to reduce my naturally-produced androgen level. Experts tell me that the basis for this policy is unscientific.’

On 24 July 2015, a CAS ruling gave the IAAF two years to provide scientific evidence regarding the degree of competitive advantage enjoyed by ‘hyperandrogenic’ females (i.e. females with natural, endogenous testosterone levels above 10nmol/L), otherwise its Regulations would be declared void. That deadline is fast approaching, and the silence is telling.

Thanks to the arbitrary limits on testosterone levels that sport has set, many athletes are suffering. Paragraph 248(d) of the CAS ruling in the Chand case (extract below) reveals that there have been over 30 cases to date. As the IAAF Hyperandrogenism Regulations came into force in May 2011, that is over ten cases a year.

In an extreme case, sport forced athletes to have surgical procedures to remodel their genitalia to fit its binary view of ‘male’ and ‘female’. Ahead of the London 2012 Olympics, four young athletes were forced to undergo surgery after being told that this would allow them to compete at the Games, reported the International Business Times. The IAAF initially denied that this had taken place, however a 2013 study appears to suggest that it did.

It is understood that all four athletes ended up having surgery to remove undescended testicles, being told that this would lower their testosterone levels and allow them to continue competing. The study revealed that all the athletes had medical procedures that had nothing to do with this: reductions to the size of their clitorises, ‘feminine’ remodelling surgery and oestrogen replacement therapy.

As these young athletes have had their ability to naturally produce testosterone surgically removed due to a requirement by sport, they are now suffering the same symptoms that Worley has suffered, namely ‘complete hormone deprivation’. Far from helping them to compete as it claimed, sport’s intervention has made it impossible for them to compete and has medically harmed them.

Caster Semenya

Another athlete that has suffered as a result of the IAAF’s Hyperandrogenism Regulations is Caster Semenya. The South African was suspended for 11 months following a 2009 gender test, when she was 19. Semenya is often thrown into the same boat as Chand, however Worley argues that this is unfair because Semenya does enjoy a performance advantage due to her unique physiology, whereas Chand does not.

“Dutee and Caster should never have been compared in the same space”, she argues. “Caster and Dutee have different chromosome makeups. Caster is XX, Dutee is XY. In Dutee’s case, it doesn’t matter what her levels are, she will never get faster, because her body can’t absorb this extra testosterone due to Androgen insensitivity Syndrome.”

“Caster has adrenal hyperplasia [a condition where the adrenal gland is larger than usual]”, continues Worley. “She is XX chromosome and she does produce a higher level of testosterone. Caster does have a competitive advantage, due to the testosterone being produced by her adrenal glands. However, her advantage is no different to natural talents enjoyed by athletes such as Serena Williams, Lindsey Vonn or Marianne Vos in their sports. She is naturally advantaged, not synthetically.”

However, this is where the arbitrary discrimination promulgated by the regulations comes into play. Although ‘female’ athletes are subject to upper limits on their testosterone levels, ‘male’ athletes are not. Sport does not test or handicap males who have conditions that elevate their natural testosterone levels. To give just one example, sport doesn’t shorten tall basketball players, despite scientific evidence that their height may sometimes be due to XYY chromosomal make-up.

There is an ongoing argument as to whether it is fair to sanction female athletes for something their body naturally produces. To give a crude example, Usain Bolt is not sanctioned for the length of his stride, nor Michael Phelps for the size of his feet.

There is also ongoing debate about whether elevated testosterone levels are the sole arbiter of successful sporting performance. At this year’s Sport Resolutions conference, Dr. Martínez-Patiño pointed out that any women suffering from polycystic ovary syndrome will have elevated testosterone levels, but that does not make them an elite athlete.

There is also a certain amount of irony to the situation faced by Chand and Dr. Martínez-Patiño. Both have AIS, which means that their body is resistant to testosterone. If testosterone is such an important arbiter of sporting performance, then how did Dr. Martínez-Patiño and Chand succeed in competing in elite sport despite being resistant to its effects?

The lack of research conducted has come back to bite sport in the backside, in the form of XX males – i.e. somebody who was born XX female who has transitioned to become XX male. As part of the process of transitioning from female, XX males are allowed to apply for a TUE to take synthetic testosterone to bring them up to what sport considers to be the ‘male level’. These XX ’supermen’ are beginning to outperform the XY men…

Supermen

XX females transitioning to XX males do not have to undergo a hysterectomy (removal of the womb and ovaries), but a gonadectomy (removal of testicles) is carried out on XY males transitioning to XY females. What this means, in effect, is that XX males do not have the main testosterone-producing organ in their body removed, but XY females do.

“Sport has put forward the idea that transitioning from one sex to the other is the same process”, argues Worley. “The XY female’s body is broken down into a post-menopausal state and the complications that come with that. The XX male gets juiced, and goes into a hyper state due to their known biological sensitivity to androgens. You see them in football, in bodybuilding, in all the big muscle sports doing exceptionally well, because they are taking these high levels of testosterone that are completely unregulated.”

Chris Mosier

One example of this is Chris Mosier, a US cyclist and triathlete, who has transitioned to XX male and is competing very successfully in high performance endurance male competitions. Another is young Texan wrestler Mack Beggs, who is in the process of transitioning from XX female to XX male, but is still wrestling in the female category. Beggs has argued for the rules to be changed so that she can compete against men whilst transitioning.

“They never bring them back into a state of lower values after they have gone through transition”, argues Worley. “They just stick to those higher levels. Chris Mosier could not be competing the way that he competes as a biathlete without those really high levels of testosterone. Beggs is a hyper-doping athlete competing in sport who is outperforming other female athletes. People should be complaining because it’s clearly doping. Chris Mosier, Beggs and others have been getting away with it and this is the problem with what the IOC has done. It has solely focused on the male/female social model, but has never done the necessary homework. The science actually opposes the IOC’s international policy.”

Discrimination & bias

A fantastic illustration of sport’s bias against athletes transitioning to become XY females was provided by the ‘Explanatory note to the recommendation on sex reassignment and sports’, which accompanied the 2003 Stockholm Consensus (PDF below). ‘Although individuals who undergo sex reassignment usually have personal problems that make sports competition an unlikely activity for them, there are some for whom the participation in sport is important’, it read. The assumption that XY females have personal problems and the suggestion that the IOC is doing them a favour by allowing them to compete at all will not help the international body, should Worley’s case proceed to litigation.

Sport even attempted to re-introduce blanket limits on testosterone through its Consensus Statement issued after its Consensus Meeting on Sex and Hyperandrogenism (PDF below) in November 2015. ‘The athlete must demonstrate that her total testosterone level in serum has been below 10 nmol/L for at least 12 months prior to her first competition’, they read. ‘The athlete’s total testosterone level in serum must remain below 10 nmol/L throughout the period of desired eligibility to compete in the female category’.

Sport was prepared to go against its own arbitration court in pursuing its discriminatory policies. As can be seen from the above, the IOC attempted to reintroduce the 10nmol/L limit in November 2015, after the CAS suspended the IAAF’s Hyperandrogenism Regulations in July 2015, which utilised the same limit.

The bias in sport’s regulations in this area has only been partially illustrated in this article. The very fact that Worley’s case has got to the Human Rights Tribunal of Ontario is a legal recognition that harm has been done to her. That has already been decided and appears irrefutable, as the snapshot of Worley’s evidence outlined above illustrates. Sport has breached her human rights. What remains to be seen is whether sport accepts that it is guilty of such harm, and what it proposes to do about it.

“Although this is happening in Ontario, the changes will happen here in Canada, which will force the changes internationally”, explains Worley. “This is what the Canadian sporting bodies are afraid of. They know that if the changes occur in Canada, it will affect their relationship not only with the Canadian Olympic Committee, but with the IOC and this will affect athletes’ ability to compete internationally at the Olympic Games.”

What Worley has been successful in showing is that due to sport’s closed system, the International Cycling Union (UCI), Cycling Canada and other sporting bodies had little choice but to follow the IOC’s lead. Sport even attempted to duck its way out of complying with Bill C-279, Canada’s gender identity Bill, by requesting an opt-out if the Bill were to pass (it didn’t).

“What we are able to show through this is their commitment regarding suppression of athletes against their commitment to the IOC”, says Worley. “It is not their preference to work with Canadian citizens, but with the IOC. They are afraid of them.”

“All the UCI had to do was to go to the IOC and say that they had concerns about this policy”, says Kristen. “They chose not to. And now they’re in a human rights court. They know they’ve done wrong. The issue is that they’re politicians. They don’t want to say that they’ve done wrong.”

However, unless an amicable solution is found, sport could find itself facing human rights litigation. It will want to avoid this, as Worley has a very strong case which could open the doors to similar litigation actions outside of sport’s CAS closed shop.

For almost 40 years, sport’s regulations on gender have been harming athletes who want nothing more than to compete naturally. The story involves ruined lives, genetic mutilation and attempted suicide. Worley is unique in realising that unless somebody is prepared to risk deeply personal public scrutiny, sacrifice any chance of competing and employment opportunities, more athletes will be harmed.

It is a legacy of which sport ought to be ashamed.

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